Jason Dale Tuell v. Commonwealth ( 2002 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Felton and Senior Judge Hodges
Argued at Chesapeake, Virginia
JASON DALE TUELL
MEMORANDUM OPINION * BY
v. Record No. 2018-01-1 JUDGE WILLIAM H. HODGES
OCTOBER 22, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE
Russell I. Townsend, Jr., Judge
Robert G. Byrum (Shames & Byrum, P.C., on
brief), for appellant.
Stephen R. McCullough, Assistant Attorney
General (Jerry W. Kilgore, Attorney General,
on brief), for appellee.
Jason Dale Tuell, appellant, appeals his convictions of
possession with the intent to distribute Ecstasy, possession of
diazepam (Valium), and possession with the intent to distribute
between one-half ounce and five pounds of marijuana. Appellant
contends the evidence was not sufficient to prove appellant
possessed the drugs. We agree and reverse the convictions.
BACKGROUND
On May 4, 2000, police executed a search warrant for the
residence leased to appellant and John McCarthy. Appellant was
not present during the search of the residence, though McCarthy
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
and his girlfriend were. In appellant's downstairs bedroom, the
police found twenty-six Ecstasy pills and seventy-four Valium
pills in the bottom drawer of a nightstand situated to the left of
the bed. Police also found marijuana in another drawer of the
same nightstand. In the nightstand to the right of the bed,
police found a checkbook for a joint account belonging to
appellant and another person, as well as photographs of appellant.
On the top shelf of the closet, police found a shoebox containing
marijuana, packaged in separate baggies. The shoebox also
contained plastic baggies, commonly used for distribution of
marijuana, a set of hanging scales, and a black sports bag with
another checkbook from the joint account in it. Police discovered
more marijuana in a dresser drawer. In the top right drawer of
the dresser, police found appellant's wallet, which contained his
driver's license, social security card, credit cards and a health
insurance card.
McCarthy testified on behalf of the Commonwealth. McCarthy
stated the drugs found in appellant's bedroom were not his. In
his testimony, McCarthy also indicated he had not seen appellant
in the residence for four days, though that was not uncommon since
they had different schedules. McCarthy recounted that he had
never seen appellant use or sell drugs and that he was surprised
that the police found narcotics in appellant's room. McCarthy
testified that at least twelve visitors had recently been to the
- 2 -
residence and three or four different people had spent the night
in appellant's room. Further, in order to get to the backyard,
people were required to pass through appellant's room to go
outside to smoke or to take out the trash.
ANALYSIS
In reviewing a challenge to the sufficiency
of evidence to sustain a conviction, we are
guided by well-established principles. We
view the evidence in the light most
favorable to the Commonwealth and accord to
that evidence all reasonable inferences that
flow from it. In reviewing that evidence,
however, "we cannot . . . disregard
credible, unimpeached evidence of the
Commonwealth which exculpates the defendant
and creates a reasonable doubt." A
conviction based on circumstantial evidence
may be sustained only if the evidence, when
taken as a whole, excludes every reasonable
hypothesis of innocence. Thus, the evidence
must be wholly consistent with guilt and
wholly inconsistent with innocence.
Scruggs v. Commonwealth, 19 Va. App. 58, 60-61, 448 S.E.2d 663,
664-65 (1994) (citation omitted).
Appellant was not present during the search of the
residence. Thus, appellant was not found in actual possession
of the contraband. The Commonwealth relies on a theory of
constructive possession.
Constructive possession of contraband may be
shown by proof that the substance is known
to the defendant and subject to his dominion
and control. Knowledge of the presence and
character of the drug may be shown by
evidence of the acts, statements, or conduct
of the accused. While an accused's
- 3 -
occupancy of the premises does not give rise
to a presumption of possession, this factor
may be considered with other evidence in
determining whether a defendant
constructively possessed drugs.
Garland v. Commonwealth, 225 Va. 182, 184, 300 S.E.2d 783, 784
(1983) (citations omitted).
Appellant concedes that the residence was leased to him and
that the room in which the drugs were found was his bedroom.
The additional evidence linking appellant to the drugs is the
presence of his wallet in the dresser where marijuana was also
found, his checkbook in a nightstand where no drugs were found,
and a sports bag containing an additional checkbook in the
shoebox where the majority of the marijuana was found.
The only personal item found in the same physical location
as any drugs was one of the checkbooks. Even that item,
however, was in a separate bag within the shoebox. Further, the
checkbooks were for a joint account held by appellant and
another person. No evidence indicated how long the various
items were in place or who placed them where they were found.
Though all the contraband was tested for fingerprints, only one
print was detected and that fingerprint did not match appellant.
Additionally, McCarthy testified the last time he saw
appellant in the residence was four days prior to the search.
McCarthy did not know appellant to use or sell drugs and, in
fact, was "shocked" to learn drugs were found in his room.
- 4 -
McCarthy also indicated the bedroom was used not only by
appellant, but at least three other people who had spent the
night in appellant's bed. Moreover, at least twelve people had
been to the residence, several of whom had to pass through
appellant's bedroom to smoke in the backyard or to take out the
trash.
While all the evidence creates a strong suspicion that
appellant possessed the drugs, "[s]uspicion . . . no matter how
strong, is insufficient to sustain a criminal conviction." Id.
at 184-85, 300 S.E.2d at 785 (citation omitted). We cannot
ignore the credible evidence that many people other than
appellant had access to and used appellant's bedroom. Finally,
none of appellant's personal items conclusively established that
appellant knew of the presence of the contraband or exercised
any dominion or control over the drugs. Accordingly, we reverse
the judgment of the trial court and dismiss the indictments.
Reversed and dismissed.
- 5 -