James Junious Chandler, etc. v. Commonwealth ( 1996 )


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  •                    COURT OF APPEALS OF VIRGINIA
    Present: Judges Benton, Elder and Annunziata
    Argued at Salem, Virginia
    JAMES JUNIOUS CHANDLER, S/K/A
    JAMES JULIUS CHANDLER
    MEMORANDUM OPINION * BY
    v.         Record No. 0230-94-3     JUDGE ROSEMARIE ANNUNZIATA
    MAY 21, 1996
    COMMONWEALTH OF VIRGINIA
    FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE
    James F. Ingram, Judge
    Mark T. Williams (Williams, Stilwell,
    Morrison, Williams and Light, on brief), for
    appellant.
    Leah A. Darron, Assistant Attorney General
    (James S. Gilmore, III, Attorney General, on
    brief), for appellee.
    Appellant, James Junious Chandler, appeals his conviction
    for possession of cocaine in violation of Code § 18.2-250(a).
    Appellant contends the evidence was insufficient to support a
    conviction based on constructive possession.   We disagree and
    affirm.
    "To support a conviction based upon
    constructive possession, `the Commonwealth
    must point to evidence of acts, statements,
    or conduct of the accused or other facts or
    circumstances which tend to show that the
    defendant was aware of both the presence and
    character of the substance and that it was
    subject to his dominion and control.'"
    McGee v. Commonwealth, 
    4 Va. App. 317
    , 322, 
    357 S.E.2d 738
    , 740
    (1987) (quoting Drew v. Commonwealth, 
    230 Va. 471
    , 473, 338
    *
    Pursuant to Code § 17-116.010 this opinion is not
    designated for publication.
    S.E.2d 844, 845 (1986)).    Neither proximity to contraband nor
    presence on the premises where it is found are alone sufficient
    to establish constructive possession.     E.g., Brown v.
    Commonwealth, 
    15 Va. App. 1
    , 9, 
    421 S.E.2d 877
    , 882-83 (1992).
    Moreover, proximity and presence, together, are insufficient
    where the evidence does not show that the defendant's possession
    was knowing.     See Scruggs v. Commonwealth, 
    19 Va. App. 58
    , 61-63,
    
    448 S.E.2d 663
    , 665-66 (1994) (defendant, owner and driver of car
    in which drugs found within passenger seat, did not
    constructively possess drugs because evidence failed to show
    defendant knew drugs were there); Jones v. Commonwealth, 17 Va.
    App. 572, 574, 
    439 S.E.2d 863
    , 864 (1994) (defendant, passenger
    in car where drugs found both between passenger and driver seats
    and under passenger seat, did not constructively possess drugs
    because evidence failed to show how long defendant had been in
    car, whether defendant saw drugs between seats, or whether
    defendant knew of drugs under seat); Nelson v. Commonwealth, 
    17 Va. App. 708
    , 711, 
    440 S.E.2d 627
    , 628-29 (1994) (defendant,
    present in hotel room where drugs found, did not constructively
    possess drugs because drugs not in plain view, no drugs found on
    defendant, and evidence failed to show how long defendant had
    been in room).
    However, both proximity and presence are factors the trial
    court may consider in evaluating the totality of circumstances.
    Lane v. Commonwealth, 
    223 Va. 713
    , 716, 
    292 S.E.2d 358
    , 360
    - 2 -
    (1982); 
    Brown, 15 Va. App. at 10
    , 421 S.E.2d at 883; Castaneda v.
    Commonwealth, 
    7 Va. App. 574
    , 584, 
    376 S.E.2d 82
    , 87 (1989).
    And, "`[k]nowledge . . . may be proved by evidence of acts,
    declarations or conduct of the accused from which the inference
    may be fairly drawn that [the accused] knew of the existence of
    narcotics at the place where they were found.'"     Hairston v.
    Commonwealth, 
    5 Va. App. 183
    , 186, 
    360 S.E.2d 893
    , 895 (1987)
    (quoting People v. Pigrenet, 
    26 Ill. 2d 224
    , 227, 
    186 N.E.2d 306
    ,
    308 (1962)).
    In a case of constructive possession, where the Commonwealth
    relies wholly on circumstantial evidence to prove a necessary
    element of the offense, all the necessary circumstances proved
    must be consistent with guilt and inconsistent with innocence to
    establish guilt beyond a reasonable doubt.   Harrell v.
    Commonwealth, 
    11 Va. App. 1
    , 9, 
    396 S.E.2d 680
    , 684 (1990).
    However, this rule does not require the Commonwealth to disprove
    every remote possibility of innocence.   Cantrell v. Commonwealth,
    
    7 Va. App. 269
    , 289, 
    373 S.E.2d 328
    , 338 (1988), cert. denied,
    
    496 U.S. 911
    (1990).   The Commonwealth must reasonably exclude
    only those hypotheses "which flow from the evidence itself, and
    not from the imagination of defendant's counsel."     
    Id. at 289-90, 373
    S.E.2d at 338-39 (quoting Black v. Commonwealth, 
    222 Va. 838
    ,
    841, 
    284 S.E.2d 608
    , 609 (1981)).   Thus, as appellant concedes,
    "[t]he Commonwealth is not required to prove that there is no
    possibility that someone else may have planted, discarded,
    - 3 -
    abandoned or placed the drugs [where they are found near an
    accused]."     See, e.g., 
    Brown, 15 Va. App. at 10
    , 421 S.E.2d at
    863.
    Whether an alternative hypothesis is a "reasonable
    hypothesis of innocence" is a question of fact.     Cantrell, 7 Va.
    App. at 
    290, 373 S.E.2d at 339
    .    Unless plainly wrong, a trial
    court's factual finding is binding on appeal.     E.g., Naulty v.
    Commonwealth, 
    2 Va. App. 523
    , 527, 
    346 S.E.2d 540
    , 542 (1986).
    When considering the sufficiency of the evidence on appeal in a
    criminal case, this Court views the evidence in a light most
    favorable to the Commonwealth.     Higginbotham v. Commonwealth, 
    216 Va. 349
    , 352, 
    218 S.E.2d 534
    , 537 (1975).    On review, this Court
    may not substitute its own judgment for that of the trier of
    fact.     Cable v. Commonwealth, 
    243 Va. 236
    , 239, 
    415 S.E.2d 218
    ,
    220 (1992).    Instead, the trial court's judgment will not be set
    aside unless it appears that the judgment is plainly wrong or
    without supporting evidence.    Code § 8.01-680; Josephs v.
    Commonwealth, 
    10 Va. App. 87
    , 99, 
    390 S.E.2d 491
    , 497 (1990) (en
    banc) (quoting Martin v. Commonwealth, 
    4 Va. App. 438
    , 443, 
    358 S.E.2d 415
    , 418 (1987)).
    Here, the evidence shows that Danville Police Officers
    Michael Wallace and D. C. Creed responded to a reported dispute
    involving a firearm at the home of a Mrs. Hicks.    When Wallace
    arrived, appellant and Hicks were outside.    Wallace checked both
    for weapons but found none.    He asked appellant to empty his
    - 4 -
    pockets, but appellant refused to comply.   Wallace conducted a
    pat down search of appellant but felt no weapon.   Wallace then
    looked inside a parked vehicle which belonged to neither
    appellant nor Hicks and discovered a gun.   By that time, Creed
    had arrived.   Wallace exclaimed, "I found a gun," whereupon
    appellant ran into Hicks' residence.   Creed pursued appellant,
    ordering him to stop four times.   Appellant did not comply.
    Instead, appellant ran into a bathroom and closed the door.
    Within five to ten seconds, Creed reached the bathroom and opened
    the door.   As the door opened, the toilet flushed.   Creed saw
    appellant standing next to the toilet with his left pants pocket
    pulled inside out and his pants zipped and buttoned.   Creed asked
    appellant to step back and to display his hands.   Appellant
    complied, and Creed saw appellant neither hold nor drop anything.
    Upon bending down to look behind the toilet for a weapon, Creed
    noticed what would prove to be a piece of crack cocaine
    approximately one-eighth of an inch in diameter.   Creed testified
    that the cocaine rested approximately six inches from appellant's
    foot on the same side of the floor as the side of appellant's
    pants which had the pocket pulled inside out.
    The evidence is sufficient to support a finding, beyond a
    reasonable doubt and to the exclusion of a reasonable hypothesis
    to the contrary, that appellant was aware of both the presence
    and character of the cocaine and that it was subject to his
    dominion and control.   Appellant fled from Officer Creed,
    - 5 -
    refusing to stop until he reached the bathroom.    Within seconds,
    Creed found appellant standing next to a flushing commode with
    his pants zipped and buttoned.    One of appellant's pockets was
    turned inside out, and Creed found cocaine on the floor directly
    below that pocket, only six inches from appellant's foot.
    Contrary to appellant's assertion, this case is readily
    distinguished from Hairston and Wright v. Commonwealth, 
    217 Va. 669
    , 
    232 S.E.2d 733
    (1977).   In Hairston, the evidence showed
    only that the accused held a child whose clothing contained a
    package of drugs and who had been in the care of three other
    people for the preceding two and one-half 
    hours. 5 Va. App. at 186
    , 360 S.E.2d at 895.   In Wright, the evidence showed only that
    the accused sat with another man in a room where the police found
    
    drugs. 217 Va. at 670
    , 232 S.E.2d at 734.
    Accordingly, appellant's conviction is affirmed.
    Affirmed.
    - 6 -
    BENTON, J., dissenting.
    The Commonwealth had the burden to prove beyond a reasonable
    doubt that James Chandler possessed the cocaine found by Officer
    Creed.   Because the evidence in this case did not prove that
    Chandler "was aware of both the presence and character of the
    substance and that it was subject to his dominion and control,"
    Drew v. Commonwealth, 
    230 Va. 471
    , 473, 
    338 S.E.2d 844
    , 845
    (1986), I would reverse the conviction.
    Viewed in the light most favorable to the Commonwealth,
    Commonwealth v. Grimstead, 
    12 Va. App. 1066
    , 1067, 
    407 S.E.2d 47
    ,
    48 (1991), the evidence proved that when Officer Wallace detained
    Chandler in response to a report that "a female had a gun,"
    Chandler refused Wallace's request to empty his pockets.     After
    the officer frisked him for weapons and walked away, Chandler ran
    inside a residence.   Another officer, Creed, chased Chandler into
    the bathroom.   Officer Creed estimated that he opened the
    bathroom door five to ten seconds after Chandler entered the
    bathroom.   When Officer Creed entered the bathroom, he heard the
    toilet flushing and saw that the "water had already [gone] down
    [and] the bowl was starting to fill back up."   Chandler was
    standing in front of the toilet with his pants zippered and
    buttoned.   One of his pockets was "pulled inside out."   Creed
    asked him to move from the room, searched behind the toilet, and
    found a small piece of cocaine on the floor.
    Possession of cocaine may be actual or constructive.      Drew,
    - 7 
    - 230 Va. at 473
    , 338 S.E.2d at 845.     "To support a conviction
    based upon constructive possession, 'the Commonwealth must point
    to evidence of acts, statements, or conduct of the accused or
    other facts or circumstances which tend to show that the
    [accused] was aware of both the presence and character of the
    substance and that it was subject to his dominion and control.'"
    McGee v. Commonwealth, 
    4 Va. App. 317
    , 322, 
    357 S.E.2d 738
    , 740
    (1987)(quoting Powers v. Commonwealth, 
    227 Va. 474
    , 476, 
    316 S.E.2d 739
    , 740 (1984)).   The evidence proved that Officer Creed
    did not observe Chandler possess cocaine or do any act to suggest
    that he knew the cocaine was on the floor.    Only after "ben[ding]
    down to look behind the toilet to see if [Chandler] might have
    thrown a weapon behind the toilet," did Officer Creed find the
    piece of cocaine.
    Based on the circumstantial evidence, the trial judge could
    have inferred that Chandler flushed something down the toilet.
    However, only by speculation, surmise or conjecture could he have
    concluded that Chandler dropped the cocaine that Officer Creed
    found on the floor.   "It is, of course, a truism of the criminal
    law that evidence is not sufficient to support a conviction if it
    engenders only a suspicion or even a probability of guilt."
    Smith v. Commonwealth, 
    192 Va. 453
    , 461, 
    65 S.E.2d 528
    , 533
    (1951).
    In Virginia it is well established that "[e]vidence merely
    that the accused was in the proximity of controlled substances is
    - 8 -
    insufficient" to prove possession.      Jones v. Commonwealth, 17 Va.
    App. 572, 574, 
    439 S.E.2d 863
    , 864 (1994).       Just because Chandler
    was near the cocaine does not prove beyond a reasonable doubt
    that he was aware of its presence.      
    Id. The evidence also
    failed
    to prove that Chandler exercised exclusive dominion or control.
    The Commonwealth did not present any evidence that the bathroom
    was free of drugs prior to Chandler's entrance or that Chandler
    dropped the cocaine.    See Burchette v. Commonwealth, 
    15 Va. App. 432
    , 438, 
    425 S.E.2d 81
    , 85 (1992).
    To sustain a conviction based upon circumstantial evidence,
    "the evidence must be wholly consistent with guilt and wholly
    inconsistent with innocence."     Scruggs v. Commonwealth, 19 Va.
    App. 58, 61, 
    448 S.E.2d 663
    , 664 (1994).       Evidence is not wholly
    inconsistent with innocence where the proof establishes only that
    the police find a small piece of cocaine on the floor in the same
    room as the accused.    Such evidence leads only to surmise and
    conjecture as to who left the cocaine.        "Conviction cannot rest
    upon [surmise and] conjecture."     
    Smith, 192 Va. at 461
    , 65 S.E.2d
    at 533.   See also Hyde v. Commonwealth, 
    217 Va. 950
    , 955, 
    234 S.E.2d 74
    , 78 (1977).
    Where, as in this case, the evidence amounts to a "mere
    suspicion," the evidence is insufficient to convict the accused.
    Garner v. Commonwealth, 
    186 Va. 600
    , 613, 
    43 S.E.2d 911
    , 917
    (1947)(citation omitted).   Therefore, I would reverse the
    conviction.
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