John Trevor Vilacha v. Commonwealth of VA ( 2002 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Willis and Clements
Argued at Salem, Virginia
JOHN TREVOR VILACHA
MEMORANDUM OPINION * BY
v. Record No. 0679-01-3 JUDGE JEAN HARRISON CLEMENTS
APRIL 30, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF BUCHANAN COUNTY
Keary R. Williams, Judge
Henry A. Barringer for appellant.
Eugene Murphy, Assistant Attorney General
(Randolph A. Beales, Attorney General, on
brief), for appellee.
John Trevor Vilacha was convicted in a bench trial of
possession of cocaine, in violation of Code § 18.2-250. On
appeal, he contends (1) the evidence was insufficient, as a matter
of law, to prove beyond a reasonable doubt that he constructively
possessed the cocaine in the straw found by the police on the
floor of the pickup truck in which he was a passenger and (2) the
trial court erred in admitting into evidence a codefendant's
out-of-court statement implicating him because it violated his
Sixth Amendment right of confrontation. Finding the evidence
insufficient to convict Vilacha, we reverse the conviction.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
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 other incidents
of the proceedings as necessary to the parties' understanding of
the disposition of this appeal.
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 are further mindful that 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 determination." Crawley v. Commonwealth, 29
Va. App. 372, 375, 512 S.E.2d 169, 170 (1999). 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).
"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).
However, "proof of actual possession is not required; proof of
constructive possession will suffice." Id. at 426, 497 S.E.2d at
872. "To support a conviction based upon constructive possession,
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'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.'" Drew v. Commonwealth, 230 Va. 471, 473, 338 S.E.2d
844, 845 (1986) (quoting Powers v. Commonwealth, 227 Va. 474, 476,
316 S.E.2d 739, 740 (1984)). Because "[p]roof of constructive
possession necessarily rests on circumstantial evidence[,] . . .
'"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))).
Here, viewed in the light most favorable to the Commonwealth,
the evidence establishes that, when Trooper Anthony Skeens pulled
over the pickup truck being driven by Scotty McBride, Vilacha was
sitting next to the window on the passenger side of the truck and
Wade Price was sitting in the middle between Vilacha and McBride.
After the occupants exited the truck, Skeens recovered a pill
bottle and part of a white pill with "Vicodin ES" inscribed on it
from the truck's bench seat between where McBride and Price had
been sitting. Laboratory testing later confirmed that the pill
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was Vicodin, a Schedule III narcotic. 1 Skeens also recovered a
plastic straw from the front passenger-side floor of the truck,
near the transmission hump. The straw, which was found lying "in
some trash," had "white-powder residue caked inside" it. The
substance in the straw was later identified through laboratory
analysis as cocaine.
Vilacha, McBride, and Price were placed under arrest and
transported to the jail. At the jail, Skeens observed
white-powder residue inside Vilacha's right nostril. That
residue, however, was not analyzed or identified.
While at the jail, Skeens confronted Vilacha, McBride, and
Price with the pill bottle, the Vicodin pill, and the straw, but
all three denied ownership. Later, Skeens advised Price that he
was being charged with, among other things, "possession of a
controlled substance." That charge, according to Skeens, was
based solely on the Vicodin pill found in the truck. McBride, who
was within earshot of Skeens' conversation with Price, said that
"the drugs in the truck was [sic] not Wade's. They were his and
Trevor's." Vilacha was not present during that exchange.
The Commonwealth contends that Vilacha's proximity in the
truck to the cocaine, the presence of white-powder residue in
Vilacha's right nostril, and the statement by McBride that "the
1
Vilacha was also tried, and acquitted, in these same
proceedings before the trial court of a misdemeanor charge of
possessing a Schedule III controlled substance, namely Vicodin.
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drugs in the truck . . . were his and [Vilacha's]" prove Vilacha
was aware of the presence and character of the cocaine and that it
was subject to his dominion and control.
Clearly, the evidence shows that the cocaine was found
relatively near to where Vilacha was sitting in the truck. "An
accused's mere proximity to an illicit drug, however, is not
sufficient to prove possession." Walton, 255 Va. at 426, 497
S.E.2d at 872. Furthermore, "[p]roof that the [illicit drug] was
found in . . . a vehicle . . . occupied by the [accused] is
insufficient, standing alone, to prove constructive possession."
Powers, 227 Va. at 476, 316 S.E.2d at 740. Thus, while such
circumstances may be considered in determining whether Vilacha
possessed the cocaine, the evidence of Vilacha's mere occupancy of
the truck and proximity to the cocaine in the truck is not
sufficient by itself to prove he constructively possessed the
cocaine.
Turning to the Commonwealth's remaining evidence, we find it
void of any facts or circumstances that prove beyond a reasonable
doubt that Vilacha was aware of the presence and character of the
cocaine and that it was subject to his dominion and control.
Although Trooper Skeens observed the presence of white-powder
residue in Vilacha's right nostril, no evidence negated the
reasonable hypothesis that the residue resulted from Vilacha
having crushed and snorted that part of the white Vicodin pill
that was missing. Indeed, Skeens himself testified that, when he
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saw the straw in the truck, he assumed the missing part of the
Vicodin pill had been crushed. The residue was never tested or
identified. Thus, no evidence connected the white-powder residue
observed in Vilacha's nostril to the cocaine found in the truck.
Additionally, assuming, without deciding, for purposes of
this analysis, that McBride's statement that "the drugs in the
truck . . . were his and [Vilacha's]" was properly admitted into
evidence, nothing about that statement, or the context in which it
was made, suggests that it referred to anything other than the
Vicodin found in the truck. McBride made the statement after
overhearing Skeens tell Price that he was being charged with
possession of a controlled substance, a misdemeanor charge, in
this instance, based solely on the Vicodin pill Skeens found in
the truck. In fact, Skeens was not even aware at the time that
the substance in the straw was cocaine, and nothing in the record
indicates that he or any other officer mentioned that possibility
to any of the accused before McBride made the statement. Thus,
given its lack of specificity and the context in which it was
made, McBride's statement failed to establish a connection between
Vilacha and the later-identified cocaine.
We conclude, therefore, that the Commonwealth's evidence in
this case creates, at most, only a strong suspicion that Vilacha
was aware of the presence and character of the cocaine and that it
was subject to his dominion and control. "Suspicion, however, no
matter how strong is insufficient to sustain a criminal
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conviction." Stover v. Commonwealth, 222 Va. 618, 624, 283 S.E.2d
194, 197 (1981). Thus, the evidence in this case fails to prove
beyond a reasonable doubt that Vilacha constructively possessed
the cocaine. Consequently, we hold that the evidence is
insufficient, as a matter of law, to sustain Vilacha's conviction.
Accordingly, we reverse Vilacha's conviction and dismiss the
indictment. 2
Reversed and dismissed.
2
Because we reverse Vilacha's conviction on the basis of
insufficient evidence, we do not address his second assignment
of error.
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