Brian Keith Stone, etc. v. Commonwealth ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Coleman and Elder
Argued at Richmond, Virginia
BRIAN KEITH STONE, A/K/A
ANTONIO STONE
MEMORANDUM OPINION * BY
v. Record No. 0388-95-2 JUDGE SAM W. COLEMAN III
MARCH 19, 1996
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF HALIFAX COUNTY
Charles L. McCormick, III, Judge
Aubrey J. Rosser, Jr. for appellant.
Leah A. Darron, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
Brian Keith Stone was convicted in a bench trial of
possession of cocaine with intent to distribute. Stone contends
that the evidence is insufficient to prove that he constructively
possessed the contraband and that he intended to distribute it.
We find that the evidence is sufficient and affirm the
defendant's conviction.
On April 2, 1994, Deputies Ray Link and Ernest Powell of the
Halifax County Sheriff's Office were patrolling a "high drug
area" near a convenience store in Cody. Both deputies were in
uniform and riding in a marked police car that Deputy Powell was
driving. As they entered the convenience store parking lot, they
observed two men run and jump into a Toyota pickup truck. The
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
defendant was driving the truck, and according to the deputies,
he spun the truck's tires and exited the parking lot at a high
rate of speed. Almost immediately after leaving the parking lot,
the defendant crossed over a double-solid line into the left lane
in order to pass another vehicle.
After witnessing the truck exit the parking lot, the
deputies pursued the truck at speeds of seventy-five to eighty
miles per hour. During the pursuit, the deputies observed Tort
Dickerson, who was sitting in the passenger seat, throw a brown
paper bag from the passenger window. The bag was later recovered
at the side of the road and determined to contain several rocks
of crack cocaine.
The defendant pulled the truck to the side of the road less
than a mile away from the store where the pursuit began. The
deputies ordered the defendant and Dickerson out of the truck,
placed them on the ground, and searched them for weapons. Deputy
Powell testified that both the defendant and Dickerson were
cooperative. During a search of the truck, the deputies found
loose crack cocaine under the passenger seat, and recovered a
smoking device from a leather jacket located between the
passenger's seat and driver's seat.
The defendant testified that he was alone when he entered
the convenience store parking lot and that he met Dickerson at
the store and agreed to give Dickerson a ride home. They left
the store once, but returned so Dickerson could buy beer. The
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defendant stated that he saw the police car across the street
from the store and that he waited in the truck while Dickerson
entered the store to buy beer. He denied that either he or
Dickerson ran to the truck, and he also denied spinning the
truck's wheels and driving at a high rate of speed. The
defendant claimed that he did not observe Dickerson throw
anything from the passenger window.
When the Commonwealth's case is based on circumstantial
evidence, "all necessary circumstances proved must be consistent
with guilt and inconsistent with innocence and exclude every
reasonable hypothesis of innocence." Reynolds v. Commonwealth,
9 Va. App. 430, 440, 388 S.E.2d 659, 665 (1990) (quoting Inge v.
Commonwealth, 217 Va. 360, 366, 228 S.E.2d 563, 567 (1976)). On
appeal, the evidence must be reviewed in the light most favorable
to the Commonwealth and must be accorded all reasonable
inferences fairly deducible therefrom. Higginbotham v.
Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975). The
trial court's judgment will not be disturbed unless it "is
plainly wrong or without evidence to support it." Id.
The Commonwealth must prove that the defendant knowingly
exercised dominion and control over the drugs in order to sustain
a conviction for possession. Harmon v. Commonwealth, 15 Va. App.
440, 447, 425 S.E.2d 77, 81 (1992).
"Although proof that cocaine is found [in a
vehicle being operated by the defendant] is
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insufficient, standing alone, to prove
constructive possession, such evidence is
probative of possession and is a circumstance
which may be considered along with other
evidence. While awareness is an essential
ingredient in the crime of possession of
narcotics, it may be proved by evidence of
acts, declarations or conduct of the accused
from which the inference may be fairly drawn
that he knew of the existence of the
narcotics in the place where they were
found."
Id. (quoting Wymer v. Commonwealth, 12 Va. App. 294, 300, 403
S.E.2d 702, 706 (1991)). The defendant's conduct while operating
an automobile where drugs are found may indicate that he knew
about the drugs and exercised control over them. See Brown v.
Commonwealth, 15 Va. App. 1, 9-10, 421 S.E.2d 877, 882 (1992) (en
banc); Castaneda v. Commonwealth, 7 Va. App. 574, 583, 376 S.E.2d
82, 87 (1989) (en banc).
The defendant cites Pemberton v. Commonwealth, 17 Va. App.
651, 440 S.E.2d 420 (1994), in support of his contention that the
evidence is insufficient to sustain his conviction. In
Pemberton, this Court held that the evidence was insufficient to
support Pemberton's conviction for possession of cocaine even
though he was standing three inches from a trash can where drugs
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were found. The evidence showed that Pemberton "was `facing the
trash can and rubbing his hands up and down both his pockets' on
the outside." Id. at 652, 440 S.E.2d at 421. We held that the
evidence failed to exclude every reasonable hypothesis of
innocence because "[t]he gestures by appellant were too
attenuated to link his movement with the drugs in the trash can."
Id. at 655, 440 S.E.2d at 423.
The facts in the present case are distinguishable from those
in Pemberton. Here, both Deputy Link and Deputy Powell testified
that as they pulled into the store parking lot, the defendant and
Dickerson ran from the convenience store, which was located in an
area known for drug distribution, to the truck. The defendant
exited the parking lot at a high rate of speed and the deputies
pursued the truck at speeds of seventy-five to eighty miles per
hour for almost one mile. Deputy Powell testified that he
activated the patrol car's emergency lights immediately after the
defendant exited the parking lot, and although the defendant
pulled over, he did so only after Dickerson had thrown the bag
containing drugs out of the truck.
This evidence proves that the defendant and Dickerson sped
away from the convenience store after deputies arrived at the
scene and thereafter the defendant attempted to allude the
deputies until Dickerson could dispose of or conceal the drugs.
Cf. Castaneda, 7 Va. App. at 583, 376 S.E.2d at 87 (finding that
the accused attempted to divert the police officer's attention
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away from the backseat, where the drugs were hidden).
Accordingly, the link between the defendant's actions and the
drugs is not "too attenuated" to prove beyond a reasonable doubt
that he had knowledge that the drugs were present and that he was
exercising dominion and control of them. Pemberton, 17 Va. App.
at 655, 440 S.E.2d at 423.
Although the defendant testified that he waited for
Dickerson in the truck and did not speed away after leaving the
parking lot, the trial court was entitled to accept the deputies'
testimony and infer that the defendant's testimony was intended
to conceal his guilt. See Black v. Commonwealth, 222 Va. 838,
842, 284 S.E.2d 608, 610 (1981). We find that the defendant's
actions, viewed in the light most favorable to the Commonwealth,
are sufficient to prove that he was aware of the drugs and
exercised dominion and control over them.
The evidence is also sufficient to prove intent to
distribute cocaine. Deputy Link, who qualified as an expert
witness concerning narcotics, testified that the amount of
cocaine recovered here totaled 4.5 grams and that this amount was
consistent with sale as opposed to personal use. "Possession of
a quantity greater than that ordinarily possessed for one's
personal use may be sufficient to establish an intent to
distribute it." Castaneda, 7 Va. App. at 584, 376 S.E.2d at 87.
For these reasons, we affirm the defendant's conviction.
Affirmed.
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