Roy Carlton Davis v. Commonwealth ( 1997 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Annunziata and Senior Judge Duff
Argued at Richmond, Virginia
ROY CARLTON DAVIS
MEMORANDUM OPINION * BY
v. Record No. 0494-96-3 JUDGE ROSEMARIE ANNUNZIATA
APRIL 22, 1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG
Mosby G. Perrow, III, Judge
Clinton R. Shaw, Jr., for appellant.
Ruth Ann Morken, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
Following a bench trial, appellant, Roy Carlton Davis, was
convicted of possession of cocaine with intent to distribute.
Appellant contends the evidence was insufficient to support his
conviction. We disagree and affirm his conviction.
I.
At approximately 8:00 p.m. on August 21, 1995, Officer Hise
conducted drug surveillance in an area of Lynchburg known for
drug trafficking. At 8:35 p.m., Hise noticed appellant approach
a pedestrian on the sidewalk near 409 Harrison Street. The two
engaged in a brief conversation before appellant walked to the
downspout of the house at 409 Harrison, retrieved a small object
and returned to the pedestrian on the sidewalk with the object
concealed in the palm of his hand. Hise saw appellant and the
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
pedestrian exchange objects in a manner which he did not mistake
for a handshake. The pedestrian left, and appellant returned to
the downspout where he again picked up an object and then
returned it to the ground. Appellant then sat on the porch steps
of 409 Harrison Street.
At 8:37 p.m., Hise observed appellant return to the
downspout and, after looking each direction, pick up an object
and then place it down. At 8:39 p.m., Hise observed appellant
whistle at a passing vehicle. At 8:50 p.m., Hise saw appellant
return to the downspout, retrieve an object from the ground and
approach another individual across Harrison Street. Hise's view
was obstructed by a fence, but within a few seconds he saw
appellant return to the porch steps. At 8:56 p.m., Hise heard
appellant whistle and yell, "yo," at a passing vehicle which then
stopped. Hise saw appellant return to the downspout, pick up an
object, handle it, place an object back down and approach the
vehicle. Appellant and the vehicle's occupant engaged in a brief
conversation before the two returned to the porch steps. Hise
stated that as many as four other people sat on the porch during
the course of these events. Hise testified, however, that
appellant was the only person to approach the downspout area of
the house. Hise testified that appellant's activity was
consistent with his past experience observing drug transactions
and that he believed appellant was selling cocaine.
Hise conveyed his suspicion and a description of appellant
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to Officers Poindexter, Duff and King, who arrived within
minutes. Officer Poindexter noticed appellant on the porch steps
and observed him make a sweeping motion with his hand between his
legs as the officers approached. She did not see an object
discarded. Poindexter could not recall whether appellant sat
alone as the officers approached; Hise testified that appellant
sat with one other person when he contacted the officers.
Poindexter approached the downspout area but found nothing out of
the ordinary. She then shined her flashlight under the porch and
found a baggie containing what would prove to be 1.1 grams of
cocaine resting directly beneath appellant. Appellant stated
that the cocaine was not his.
Officer Duff searched appellant and discovered a pager, $5
in his pocket, and $92 in his shoe. Testifying as an expert in
drug transactions, Duff stated that the street value of a gram of
crack cocaine was between $150 and $175 and that crack was
typically purchased in ten, twenty or forty dollar units. Duff
further testified that pagers are often used to facilitate drug
transactions, and he described that street level crack cocaine
deals often involve a brief conversation between buyer and seller
to determine a price, followed by an exchange of drugs for money.
He further stated that drug dealers often keep their drugs in a
"stash," away from the transaction, rather than on their person.
Appellant testified in his defense and essentially refuted
the Commonwealth's case, stating, inter alia, that he used a $100
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bill to purchase $3 worth of beer and carried the remaining $97
in change and that he only once walked near the downspout on the
side of the house to place a beer bottle in a trash can. He
stated that he did not signal or approach any vehicles and that
he left the porch only to greet a friend with a handshake. He
further maintained that the pager was not his own.
II.
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, granting to it all reasonable
inferences fairly deducible therefrom. Higginbotham v.
Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975). On
review, this Court does 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). The trial court's judgment will not
be set aside unless it appears that the judgment is plainly wrong
or without evidence to support it. Code § 8.01-680; Josephs v.
Commonwealth, 10 Va. App. 87, 99, 390 S.E.2d 491, 497 (1990) (en
banc). "It is fundamental that `the credibility of witnesses and
the weight accorded their testimony are matters solely for the
fact finder who has the opportunity of seeing and hearing the
witnesses.'" Collins v. Commonwealth, 13 Va. App. 177, 179, 409
S.E.2d 175, 176 (1991) (quoting Schneider v. Commonwealth, 230
Va. 379, 382, 337 S.E.2d 735, 736-37 (1985)).
In this case the Commonwealth relied wholly on
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circumstantial evidence to prove that appellant possessed the
cocaine found under the porch and that he intended to distribute
it. As such, "`all necessary circumstances proved must be
consistent with guilt and inconsistent with innocence and exclude
every reasonable hypothesis of innocence.'" Moran v.
Commonwealth, 4 Va. App. 310, 314, 357 S.E.2d 551, 553 (1987)
(citation omitted); see also Dukes v. Commonwealth, 227 Va. 119,
122, 313 S.E.2d 382, 383 (1984); Wilkins v. Commonwealth, 18 Va.
App. 293, 298, 443 S.E.2d 440, 444 (1994). The Commonwealth,
however, "`is not required to disprove every remote possibility
of innocence, but is, instead, required only to establish guilt
of the accused to the exclusion of a reasonable doubt.'"
Cantrell v. Commonwealth, 7 Va. App. 269, 289, 373 S.E.2d 328,
338 (1988), cert. denied, 496 U.S. 911 (1990) (quoting Bridgeman
v. Commonwealth, 3 Va. App. 523, 526-27, 351 S.E.2d 598, 600
(1986)). "The hypotheses which the prosecution must reasonably
exclude are those `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)). 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).
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As appellant concedes, "[t]he Commonwealth is not required
to prove that there is no possibility that someone else may have
planted, discarded, abandoned or placed the drugs [where they are
found near an accused]." See, e.g., Brown v. Commonwealth, 15
Va. App. 1, 10, 421 S.E.2d 877, 883 (1992).
"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
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, 15 Va. App.
at 9, 421 S.E.2d at 882-83. 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 (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). An accused's knowledge of the presence
of contraband "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.
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Pigrenet, 26 Ill. 2d 224, 227, 186 N.E.2d 306, 308 (1962)).
In light of these principles, we find that the record
contains sufficient evidence to support the trial court's finding
beyond a reasonable doubt that appellant possessed the cocaine
found under the porch and that he intended to distribute it. The
record supports only one explanation for appellant's activity in
relation to the downspout and his engagement with passing
motorists and pedestrians: appellant was dealing drugs. Officer
Hise testified that appellant engaged numerous passers-by in
conjunction with his repeated trips to retrieve objects near a
downspout. Hise witnessed a transaction between appellant and a
pedestrian that he did not mistake for a handshake. Hise
testified that appellant's activity was consistent with other
drug transactions he had witnessed. The activity described by
Hise was consistent with Officer Duff's generic description of a
drug transaction and his description of a drug dealer's use of a
"stash." No reasonable, contrary hypothesis to explain
appellant's activity flows from the evidence. Appellant's
testimony, that he left the porch only once to discard a beer
bottle and that he engaged no motorists and greeted only one
pedestrian with a handshake, was wholly contradicted by the
testimony of the officer. The trial court was entitled to
conclude that appellant's conflicting testimony concerning his
activity was untruthful and to infer from that determination that
appellant was concealing his guilt. See Speight v. Commonwealth,
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4 Va. App. 83, 88, 354 S.E.2d 95, 98 (1987).
The evidence of appellant's drug dealing is a significant
circumstance establishing both that he possessed the cocaine
found under the porch and that he intended to distribute it. The
conclusion that appellant constructively possessed the cocaine
found under the porch is further supported by Officer
Poindexter's testimony. Poindexter observed appellant make a
sweeping motion with his hand as if to discard something between
his legs as the officers approached him; she then found the
cocaine lying directly beneath appellant's seat on the porch.
See Collins, 13 Va. App. at 178-79, 409 S.E.2d at 175-76. The
testimony of the officers established that appellant shared the
porch steps with at most one other person at the time the
officers approached, not six as appellant described. Moreover,
Poindexter testified that she saw no one other than appellant
make a sweeping motion with his hand as if to discard something
under the porch. The conclusion that appellant intended to
distribute the cocaine is further supported by the presence of an
unusual amount of money, reflecting, by inference, profit from
sales, and the quantity of cocaine found, exceeding by nearly
four times the amount typically purchased in an individual
transaction. See Servis v. Commonwealth, 6 Va. App. 507, 524,
371 S.E.2d 156, 165 (1988).
The decision of the trial court is accordingly affirmed.
Affirmed.
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Benton, J., dissenting.
The Supreme Court of Virginia has consistently held that
convictions may not be based upon speculation, surmise, or
conjecture.
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.
Conviction cannot rest upon conjecture. The
evidence must be such that it excludes every
reasonable hypothesis of innocence.
Smith v. Commonwealth, 192 Va. 453, 461, 65 S.E.2d 528, 533
(1951); see also Hyde v. Commonwealth, 217 Va. 950, 955, 234
S.E.2d 74, 78 (1977). That holding is grounded in the
constitutional principle that "the Due Process Clause protects
the accused against conviction except upon proof beyond a
reasonable doubt of every fact necessary to constitute the crime
with which [the accused] is charged." In re Winship, 397 U.S.
358, 364 (1970).
"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.'" Drew v. Commonwealth, 230 Va. 471, 473,
338 S.E.2d 844, 845 (1986) (citation omitted). Where the
Commonwealth relies upon circumstantial evidence to prove guilt,
that circumstantial evidence must be "wholly inconsistent with
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the innocence of [the] defendant." Foster v. Commonwealth, 209
Va. 326, 330, 163 S.E.2d 601, 604 (1968). In other words,
"'[w]here inferences are relied upon to establish [a factual
element of the offense], they must point to [that fact] so
clearly that any other conclusion would be inconsistent
therewith.'" Dotson v. Commonwealth, 171 Va. 514, 518, 199 S.E.
471, 473 (1938) (citation omitted). Thus, "circumstances of
suspicion, no matter how grave or strong, are not proof of guilt
sufficient to support a [guilty] verdict" beyond a reasonable
doubt. Powers v. Commonwealth, 182 Va. 669, 676, 30 S.E.2d 22,
25 (1944).
The officer who was conducting the surveillance that evening
testified that before Roy Carlton Davis sat on the steps, Davis
walked several times to the drain pipe at the corner of the
house, picked up something, and gave it to other people.
However, the officer could not identify the item. Although the
surveillance officer was watching Davis as Davis sat on the
steps, he did not see Davis holding any item. Moreover, when the
surveillance officer commanded the other officers to enter the
area, he directed them to search the area by the drain pipe.
When they searched the area of the drain pipe they found no drugs
or contraband.
Davis was sitting on the steps when the officers arrived and
went to the drain pipe. Another person was also sitting on the
steps. Indeed, two to four people had earlier sat on the steps
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at various times. The surveillance officer was unsure of the
conduct of those other people because his attention was primarily
drawn to Davis.
Although the officer who went to search the drain pipe
testified that she saw Davis make a "sweeping" motion with his
hands between his legs while he was sitting on the steps, she saw
nothing in Davis' hand. After she went to the drain pipe and
found nothing there, she returned to the steps of the house,
shone her flashlight under the steps and discovered a plastic
baggie of cocaine on the ground.
This evidence failed to prove that Davis was aware of the
presence of the cocaine under the steps or that he had dominion
and control of the cocaine. Davis' presence on the steps does
not prove constructive possession of the cocaine found under the
steps. "Mere proximity to a controlled drug is not sufficient to
establish dominion and control." Drew, 230 Va. at 473, 338
S.E.2d at 845.
The majority's conclusion that Davis must have thrown the
drugs on the ground under the steps is merely conjecture and
based only on the suspicion that he was hiding drugs near the
drain pipe. However, none of the officers who testified saw
anything in Davis' hand. The majority speculates that Davis had
something in his hands. From that speculation, it then infers
that he threw that something under the steps. The principle is
well established, however, that a conclusion that an accused is
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guilty "cannot rest upon conjecture or suspicion." Dixon v.
Commonwealth, 162 Va. 798, 801, 173 S.E. 521, 522 (1934).
Indeed, the evidence must do more than suggest even a
"'probability of guilt[;] . . . the evidence must go further and
exclude every reasonable hypothesis except that of guilt.'" Id.
(citation omitted).
The evidence proved a reasonable hypothesis that explained
the presence of the cocaine under the steps. The uncontradicted
evidence established that the house and the steps were located in
a "high drug area." Two to four other people were on the steps
that night and other people were in the area. In addition, the
officer testified as follows:
A lot of times drug dealers will keep their
drugs away from their person actually
stashing the drugs at a separate location,
sometimes under a rock. Some open air drug
markets are heavily trashed with litter.
Narcotics are kept in chip bags, brown pieces
of paper that can be balled up and dropped
with the trash so it doesn't look suspicious
or out of the ordinary. That is to keep the
narcotics off of the person while they
conduct business. They can then go to the
stash as they need the cocaine.
Thus, the presence of drugs that appeared to be unattended was
explained.
When the speculation is excluded, the evidence does not even
make it more likely that Davis, rather than the other individuals
on the steps or in the area, used the space under the steps to
hide the drugs. The possibility that Davis discarded the cocaine
is merely one of several hypotheses. However, "[w]henever
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'evidence leaves indifferent which of several hypotheses is true,
or merely establishes only some finite probability in favor of
one hypothesis, such evidence does not amount to proof of guilt
beyond a reasonable doubt.'" Pemberton v. Commonwealth, 17 Va.
App. 651, 654, 440 S.E.2d 420, 422 (1994) (citation omitted); see
also Hairston v. Commonwealth, 5 Va. App. 183, 186-87, 360 S.E.2d
893, 895 (1987). "The guilt of a party is not to be inferred
because the facts are consistent with his guilt, but they must be
inconsistent with his innocence." Cameron v. Commonwealth, 211
Va. 108, 110-11, 175 S.E.2d 275, 276 (1970).
Because the evidence in this case creates only a suspicion
of guilt, I would reverse the conviction. Therefore, I dissent.
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