Matthew Kris Smith v. Commonwealth ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Senior Judges Cole and Duff
Argued at Richmond, Virginia
MATTHEW KRIS SMITH
v. Record No. 1203-95-2 MEMORANDUM OPINION * BY
CHIEF JUDGE NORMAN K. MOON
COMMONWEALTH OF VIRGINIA MARCH 19, 1996
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Thomas N. Nance, Judge
Patricia P. Nagel, Assistant Public Defender
(David J. Johnson, Public Defender; Office of
the Public Defender, on brief), for
appellant.
Marla Graff Decker, Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.
Matthew Kris Smith appeals his conviction of possession of
cocaine with intent to distribute. He argues that the evidence
was insufficient to support his conviction. We affirm the
conviction.
On November 30, 1994 two police officers were on assignment
at the Greyhound bus station in Richmond. They were part of an
"interdiction team" seeking to prevent illegal narcotics from
entering Richmond from source cities such as New York and
Philadelphia. The officers saw Smith get off a bus from New York
and enter the bus terminal. Smith was carrying a navy blue piece
of luggage.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
Once inside the terminal, Smith put down the blue bag just
long enough to put on his overcoat. He carried the bag as he
moved around the terminal, attempting to exit through two of the
gates and speaking on two occasions to the clerk behind the
ticket counter. He then sat down about ten feet in front of the
ticket counter and placed the blue bag between his feet.
One of the officers approached Smith, identified herself as
a police officer, and asked Smith to accompany her to the
customer service office. Smith complied, but left the bag
behind. The second officer followed Smith and his partner into
the office, keeping watch on the bag as he walked. The officer
lost sight of the bag only for a "split second" as he walked past
the wall to enter the inner office. At the customer service
office, the first officer explained to Smith that she was part of
the drug interdiction team and that he was not under arrest. She
asked for permission to search his person and his bag. He gave
permission for the personal search, but stated that his bag was
already on board the bus.
The second officer conducted the search while the first went
to retrieve the blue bag. As he searched Smith, the second
officer kept watch on the bag through the glass window in the
office. No one else approached the bag or tampered with it in
any way. When the first officer retrieved the bag, it was in the
same position as it was when Smith left it.
Smith did not have narcotics on his person. However, when
the officers searched the bag, they found a bag containing over
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211 grams of cocaine with a street value of $7,200.
Where sufficiency of the evidence is challenged after
conviction, we examine the evidence in the light most favorable
to the Commonwealth, granting to the Commonwealth all reasonable
inferences deducible therefrom. The jury's verdict will not be
disturbed on appeal unless it is plainly wrong or without
evidence to support it. Higginbotham v. Commonwealth, 216 Va.
349, 352, 218 S.E.2d 534, 537 (1975).
To convict a defendant of illegal possession of drugs, the
Commonwealth must show that the defendant was aware of the
presence and character of the drug, and that he was intentionally
and consciously in possession of it. Woodson v. Commonwealth, 14
Va. App. 787, 794, 421 S.E.2d 1, 5, aff'd, 245 Va. 104, 429
S.E.2d 1, 5 (1992). Possession may be either constructive or
actual. For actual possession, physical possession giving the
defendant "immediate and exclusive control" is sufficient.
Ritter v. Commonwealth, 210 Va. 732, 741, 173 S.E.2d 799, 805-06
(1970). For constructive possession, the Commonwealth must show
that the drugs were in the defendant's "dominion or control".
Id.
Smith argues that the Commonwealth failed to prove that
Smith was aware of the presence of cocaine inside the blue bag.
We disagree. Smith got off the bus and entered the terminal with
the blue bag in his hand. The bag remained exclusively in his
possession and control until he abandoned it in order to
accompany the officer to the station office. The defense
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presented no credible evidence that the bag searched was not the
bag Smith carried into the terminal, or that anyone tampered with
the bag inside the terminal. Thus, the Commonwealth proved that
Smith actually possessed the bag and the drugs inside it. Proof
of possession of a controlled substance gives rise to the
inference that the defendant knows of its character. Josephs v.
Commonwealth, 10 Va. App. 87, 101, 390 S.E.2d 491, 498-99 (1990)
(en banc).
Smith's knowledge that he had illegal drugs in his
possession is confirmed by his conduct after he was approached by
the police. He abandoned the bag and denied any connection with
it, both when he was questioned by the police and at trial. His
denial, coupled with the officers' evidence that he possessed the
bag, demonstrate his knowledge of the cocaine's character.
Smith also argues that the Commonwealth failed to prove that
Smith had dominion and control over the blue bag. His argument
is based primarily on the lack of "direct evidence" that the bag
belonged to Smith, combined with the "break in the chain of
circumstances" when Smith left the bag to accompany the officer.
However, the Commonwealth proved by direct evidence that Smith
left the bus with the blue bag that contained the cocaine and
exercised exclusive physical control of it until he left it at
his chair to accompany the first police officer. While the
second officer acknowledged that he lost sight of the bag for a
"split second" when he entered the customer service office,
viewed in the light most favorable to the Commonwealth, this
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evidence does not show a "break in the chain of circumstances."
The Commonwealth proved, by direct evidence, actual possession of
the bag and the cocaine. For these reasons, the conviction is
affirmed.
Affirmed.
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