Robert Neal Jr v. Commonwealth ( 2002 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bumgardner and Clements
Argued at Richmond, Virginia
ROBERT NEAL, JR.
MEMORANDUM OPINION * BY
v. Record No. 1799-01-2 JUDGE JEAN HARRISON CLEMENTS
OCTOBER 29, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Margaret P. Spencer, Judge
Gregory W. Franklin, Assistant Public
Defender (Office of the Public Defender, on
briefs), for appellant.
Donald E. Jeffrey, III, Assistant Attorney
General (Jerry W. Kilgore, Attorney General,
on brief), for appellee.
Robert Neal, Jr., was convicted in a bench trial of
possession of cocaine, in violation of Code § 18.2-250. On
appeal, he contends the evidence was insufficient, as a matter of
law, to prove beyond a reasonable doubt that he constructively
possessed the cocaine found in a parking lot near where he had
been standing. Finding no error, we affirm the conviction.
As the parties are fully conversant with the record in this
case and because this memorandum opinion carries no precedential
value, this opinion recites only those facts and incidents of the
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
proceedings necessary to the parties' understanding of the
disposition of this appeal.
I. BACKGROUND
On December 15, 2000, Richmond City Police Officer Patrick
Warner was on routine bicycle patrol with another officer in the
area around the Chimborazo Market in Richmond. According to
Officer Warner, that location was a "known drug area" where he
had made "numerous drug arrests." At approximately 4:15 p.m.,
while it was "still light out," Warner observed Neal standing
with another man in the parking lot of the market. Neal's back
was to the officer, and the other man was facing him. Warner
observed other people in the parking lot, but none of them was
closer than thirty feet to Neal and the other man.
Suspecting, based on his "training and experience," that
Neal and the other man were involved in a drug deal, Officer
Warner rode toward them. As Warner approached, Neal turned in
the direction of the officer, who was in uniform and displaying
his badge of authority, gave him a "quick look," and turned back
to his companion. Warner then observed Neal make a quick
throwing motion with his left hand. According to the officer,
Neal's left hand "went out and opened." The officer
acknowledged, however, that he "did not see anything leave
[Neal's] hand." Warner was approximately twenty feet from Neal
"and closing" when he saw him make the throwing motion. Warner,
who was "trying to watch everything," testified he was "certain"
- 2 -
the other man did not "make any sudden movements with his
hands."
Officer Warner then got off his bicycle and asked Neal to
come and speak with him. Neal willingly approached Warner and,
at the officer's request, produced identification.
While he was involved with Neal, Warner asked the other
officer to look around the area where Neal and the other man had
originally been standing "for anything that [Neal] might have
thrown down." Looking around that area, the other officer found
a "small plastic bag" on the ground containing what was later
determined to be a single .085 gram rock of crack cocaine.
Warner recovered the cocaine. It was located, he observed,
"approximately three to five feet" from where Neal had been
standing on what would have been Neal's left side, which,
according to Warner, was consistent with the left-handed
throwing motion he saw Neal make. Warner conducted another
search of the area, but found nothing else on the ground.
Officer Warner explained that, although he clearly saw Neal
make the throwing motion, he may not have been able to see the
object leave Neal's left hand because it was a single "very
small rock" and because he approached the scene from Neal's
"back right" while the object was thrown from Neal's left side.
II. ANALYSIS
Neal contends the Commonwealth's evidence was insufficient to
prove he constructively possessed the cocaine found in the parking
- 3 -
lot. His only proven connection to the cocaine, he asserts, was
his mere proximity to it, which is not enough to show he possessed
the drug. Indeed, he argues, in light of the fact that, from
twenty feet away, in good light, with his attention focused on a
suspected drug transaction, Officer Warner did not see anything
leave Neal's hand when he made the throwing motion, the only
reasonable inference to be drawn from the Commonwealth's
evidence is that Neal did not throw anything. The fact that the
officer saw nothing, Neal claims, can only indicate that there
was nothing to see. Moreover, Neal maintains, it was reasonable
to conclude that the cocaine, having been found in a "known drug
area" where other people were present, had been dropped or left
there by someone else. Hence, he concludes, the Commonwealth's
evidence failed to prove Neal's guilt beyond a reasonable doubt.
When the sufficiency of the evidence is challenged on appeal,
we review the evidence "in the light most favorable to the
Commonwealth, granting to it all reasonable inferences fairly
deducible therefrom." Bright v. Commonwealth, 4 Va. App. 248,
250, 356 S.E.2d 443, 444 (1997). We will not disturb the
conviction unless it is plainly wrong or unsupported by the
evidence. Sutphin v. Commonwealth, 1 Va. App. 241, 243, 337
S.E.2d 897, 898 (1985). "The "credibility of a witness, the
weight accorded the testimony, and the inferences to be drawn from
proven facts are matters solely for the fact finder's
- 4 -
determination." Crawley v. Commonwealth, 29 Va. App. 372, 375,
512 S.E.2d 169, 170 (1999).
"In order to convict a person of illegal possession of an
illicit drug, the Commonwealth must prove beyond a reasonable
doubt that the accused was aware of the presence and character of
the drug and that the accused consciously possessed it." Walton
v. Commonwealth , 255 Va. 422, 426, 497 S.E.2d 869, 871 (1998).
"[P]roof of actual possession is not required; proof of
constructive possession will suffice." Id. at 426, 497 S.E.2d
at 872. Constructive possession may be established by "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." Powers v. Commonwealth,
227 Va. 474, 476, 316 S.E.2d 739, 740 (1984).
Although insufficient by itself to prove possession, an
accused's "proximity to an illicit drug" is a factor that "may
be considered in deciding whether [the] accused possessed the
drug." Walton, 255 Va. at 426, 497 S.E.2d at 872. In resolving
the issue of constructive possession, "the Court must consider
'the totality of the circumstances disclosed by the evidence.'"
Archer v. Commonwealth, 26 Va. App. 1, 12, 492 S.E.2d 826, 832
(1997) (quoting Womack v. Commonwealth, 220 Va. 5, 8, 255 S.E.2d
351, 353 (1979)).
- 5 -
"Proof of constructive possession necessarily rests on
circumstantial evidence; thus, '"all necessary circumstances
proved must be consistent with guilt and inconsistent with
innocence and exclude every reasonable hypothesis of
innocence."'" Burchette v. Commonwealth, 15 Va. App. 432, 434,
425 S.E.2d 81, 83 (1992) (quoting Garland v. Commonwealth, 225
Va. 182, 184, 300 S.E.2d 783, 784 (1983) (quoting Carter v.
Commonwealth, 223 Va. 528, 532, 290 S.E.2d 865, 867 (1982))).
"However, the Commonwealth need only exclude reasonable
hypotheses of innocence that flow from the evidence, not those
that spring from the imagination of the defendant." Hamilton v.
Commonwealth, 16 Va. App. 751, 755, 433 S.E.2d 27, 29 (1993).
"Whether an alternative hypothesis of innocence is reasonable is
a question of fact and, therefore, is binding on appeal unless
plainly wrong." Archer, 26 Va. App. at 12-13, 492 S.E.2d at 832
(citation omitted). "While no single piece of evidence may be
sufficient, the 'combined force of many concurrent and related
circumstances, each insufficient in itself, may lead a
reasonable mind irresistibly to a conclusion.'" Stamper v.
Commonwealth, 220 Va. 260, 273, 257 S.E.2d 808, 818 (1979)
(quoting Karnes v. Commonwealth, 125 Va. 758, 764, 99 S.E. 562,
564 (1919)).
Applying these principles to the present case, we conclude
the circumstantial evidence presented by the Commonwealth was
- 6 -
sufficient to prove Neal constructively possessed the cocaine
found in the parking lot.
The Commonwealth's evidence established that Officer
Warner, suspecting Neal and another man were engaged in a drug
transaction, approached them on a bicycle. Neal, whose back was
toward Warner, turned around and, seeing the officer, quickly
turned back around. Warner then observed Neal make a quick
throwing motion with his left hand. Although Warner did not see
an object leave Neal's hand, a small plastic bag containing a
very small rock of crack cocaine was found three to five feet
away from where Neal had been standing, in a location that was
consistent with the throwing motion made by Neal with his left
hand. No other objects were found nearby. Nobody else in the
parking lot was within thirty feet of Neal and the other man.
The other man made no throwing motion or other sudden movements
with his hands.
These facts support the reasonable inference that Neal
possessed the small bag of cocaine and threw it on the ground
when he saw the police approaching. See Collins v.
Commonwealth, 13 Va. App. 177, 179-80, 409 S.E.2d 175, 176
(1991) (holding that, although the police did not see the drugs
they subsequently found under a car leave the defendant's hand,
the evidence that, upon seeing the officers' approach, the
defendant "made a throwing motion with his hand under the car"
was sufficient to support the trial court's finding that the
- 7 -
defendant threw the drugs under the car; and noting that drugs
are "something of significant value and not something that one
is likely to have abandoned or carelessly left in the area").
Furthermore, the trial court apparently believed Officer
Warner's explanation that he may not have seen the bag
containing the cocaine leave Neal's left hand because of the bag
and drug's small size and because the angle at which he
approached Neal allowed him to see the throwing motion itself
but not its result. We cannot say, as a matter of law, that
Warner's testimony was incredible. Likewise, therefore, we
cannot say the trial court's conclusion that Neal possessed
cocaine was plainly wrong or without evidence to support it.
Accordingly, we affirm Neal's conviction.
Affirmed.
- 8 -