Antoine Maurice Richardson v. Commonwealth of VA ( 2001 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Frank and Clements
Argued at Chesapeake, Virginia
ANTOINE MAURICE RICHARDSON
MEMORANDUM OPINION * BY
v. Record No. 2610-00-1 JUDGE ROBERT P. FRANK
NOVEMBER 13, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
Randolph T. West, Judge
Theophlise L. Twitty (Jones and Twitty, on
brief), for appellant.
Eugene Murphy, Assistant Attorney General
(Randolph A. Beales, Attorney General, on
brief), for appellee.
Antoine Maurice Richardson (appellant) was convicted in a
bench trial of possession with the intent to distribute cocaine,
in violation of Code § 18.2-248. On appeal, he contends the trial
court erred in finding the evidence was sufficient to convict.
Finding no error, we affirm the judgment of the trial court.
BACKGROUND
On March 15, 2000, Newport News Police Detective D.L.
Williams was looking for a suspect who was wanted on an
outstanding felony warrant when he saw appellant coming out of a
house. Williams could see appellant's back but not his face. The
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
detective observed him get into a yellow cab parked in front of
the house. Appellant was the only backseat passenger. From the
rear, appellant fit the description of the suspect sought by
Williams.
After the detective obtained backup, the police decided to
stop the cab. Appellant had been riding in the middle of the
backseat "with his arm thrown around the rear of the left seat"
prior to the police activating their lights, but
[w]hen he realized the cab was being stopped,
[the detective] observed [appellant] put his
arms down, lean forward, move to the left and
he bent down to the left where his shoulder
was bent below the rear window. Prior to
that, [the detective] could see both of his
shoulders. He then moved over to the right
side of the cab.
He "scooted over" one to two feet to the right.
Detective R.L. McArthur assisted in stopping the cab. After
appellant got out of the vehicle, McArthur saw "in plain view on
the left-hand side, right as the seat back falls, if you follow
the line of the seat back, there was a plastic bag, a clear
plastic bag which contained what [he] believed to be crack
cocaine, suspected crack cocaine on the floorboard [of the cab] in
plain view." Nothing obstructed his view of the item. "The
cocaine was in the hump in the floorboard. . . . It wasn't
actually under the seat, but it was in line if you would follow
the back of the seat down."
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Inside the 5- by 4-inch plastic bag were smaller bags, each
containing a number of separate glassine envelopes. Several large
chunks of rock cocaine were in the bag, weighing a total of 19
grams and worth approximately $1,900. At trial, appellant
stipulated that if he in fact possessed the drugs, the evidence
would be sufficient to show he did so with the intent to
distribute. Appellant challenged only the sufficiency of the
evidence as to possession.
In overruling the motion to strike the evidence, the trial
court found appellant's actions were sufficient to find him
guilty.
ANALYSIS
When considering the issue of sufficiency on appeal, we view
the evidence in the light most favorable to the Commonwealth,
granting to it all reasonable inferences fairly deducible
therefrom. See Higginbotham v. Commonwealth, 216 Va. 349, 352,
218 S.E.2d 534, 537 (1975). "In so doing we must '"discard the
evidence of the accused in conflict with that of the Commonwealth,
and regard as true all the credible evidence favorable to the
Commonwealth and all fair inferences that may be drawn
therefrom."'" Norman v. Commonwealth, 2 Va. App. 518, 520, 346
S.E.2d 44, 45 (1986) (quoting Parks v. Commonwealth, 221 Va. 492,
498, 270 S.E.2d 755, 759 (1980) (quoting Wright v. Commonwealth,
196 Va. 132, 137, 82 S.E.2d 603, 606 (1954))). The trial court's
judgment will not be set aside unless plainly wrong or without
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evidence to support it. Josephs v. Commonwealth, 10 Va. App. 87,
99, 390 S.E.2d 491, 497 (1990) (en banc).
Possession of a controlled substance may be actual or
constructive. See Archer v. Commonwealth, 225 Va. 416, 418, 303
S.E.2d 863, 863 (1983). "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) (quoting Powers v.
Commonwealth, 227 Va. 474, 476, 316 S.E.2d 739, 740 (1984)). See
Eckhart v. Commonwealth, 222 Va. 447, 450, 281 S.E.2d 853, 855
(1981); McGee v. Commonwealth, 4 Va. App. 317, 322, 357 S.E.2d
738, 740 (1987).
Although mere proximity to drugs is insufficient to establish
possession, such a circumstance may be probative in determining
whether an accused possessed the drugs. Lane v. Commonwealth, 223
Va. 713, 716, 292 S.E.2d 358, 360 (1982). "Ownership or occupancy
of the vehicle in which the drugs are found is likewise a
circumstance probative of possession." Glasco v. Commonwealth, 26
Va. App. 763, 774, 497 S.E.2d 150, 155 (1998) (citations omitted),
aff'd, 257 Va. 433, 513 S.E.2d 137 (1999). Thus, in resolving
this issue, we must consider "the totality of the circumstances
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disclosed by the evidence." Womack v. Commonwealth, 220 Va. 5, 8,
255 S.E.2d 351, 353 (1979).
Proof by circumstantial evidence "'is not sufficient . . . if
it engenders only a suspicion or even a probability of guilt.'"
Littlejohn v. Commonwealth, 24 Va. App. 401, 414, 482 S.E.2d 853,
859 (1997) (quoting Hyde v. Commonwealth, 217 Va. 950, 955, 234
S.E.2d 74, 78 (1977)). "'"All necessary circumstances proved must
be consistent with guilt and inconsistent with innocence and
exclude every reasonable hypothesis of innocence."'" Betancourt
v. Commonwealth, 26 Va. App. 363, 373, 494 S.E.2d 873, 878 (1998)
(quoting Stover v. Commonwealth, 222 Va. 618, 623, 283 S.E.2d 194,
196 (1981) (quoting Inge v. Commonwealth, 217 Va. 360, 366, 228
S.E.2d 563, 567 (1976))). "When, from the circumstantial
evidence, 'it is just as likely, if not more likely,' that a
'reasonable hypothesis of innocence' explains the accused's
conduct, the evidence cannot be said to rise to the level of proof
beyond a reasonable doubt." Littlejohn, 24 Va. App. at 414, 482
S.E.2d at 859 (quoting Haywood v. Commonwealth, 20 Va. App. 562,
567-68, 458 S.E.2d 606, 609 (1995)). The Commonwealth need not
"'exclude every possible theory or surmise,'" but it must exclude
those hypotheses "'which flow from the evidence itself.'"
Cantrell v. Commonwealth, 7 Va. App. 269, 289-90, 373 S.E.2d 328,
338-39 (1988) (quoting Black v. Commonwealth, 222 Va. 838, 841,
284 S.E.2d 608, 609 (1981)).
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Appellant argues Crisman v. Commonwealth, 197 Va. 17, 87
S.E.2d 796 (1955), controls review of this case. We disagree.
The facts in Crisman are distinctly different.
Crisman was riding in the backseat of a car when it was
stopped by the police. Id. at 18, 87 S.E.2d at 797. Three men
were in the front seat, and Crisman's brother was in the back with
him. Id. While searching the vehicle, the police
discovered "a small quantity of white powder
on the floor in front of the rear seat".
This powder (which was exhibited before [the
trial court]) was collected on paper and
turned over to a chemist for the police
department. The chemist testified that his
analysis of the powder revealed that it
contained .2364 grains of heroin.
Id. at 18-19, 87 S.E.2d at 797-98 (quoting the trial court). The
owner of the car testified he had washed the car the previous day
and seen nothing on the rear floorboard of the car. Id. at 19, 87
S.E.2d at 798. He also testified that no one other than Crisman
and his brother, whom the owner had picked up earlier that day as
they were walking down the road, had been in the backseat of the
car since it was washed. Id.
The Supreme Court held the Commonwealth had not proven
Crisman possessed the heroin as any of the five men could have
placed the drug on the floor. Id. at 20, 87 S.E.2d at 799. The
Court noted the only evidence tying the drug to Crisman was
presence in the car.
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Here, the drugs were found in plain view and within
appellant's reach. These circumstances are probative of his
guilt. See Brown v. Commonwealth, 5 Va. App. 489, 491-93, 364
S.E.2d 773, 774-75 (1988) (finding that the evidence was
sufficient to support a conviction for possession of cocaine found
in plain view and within an arm's reach of the accused, even
though others were present). Unlike the heroin in Crisman, the
cocaine here was in large chunks, easily observable on the floor
of the cab and easily retrievable.
Additionally, the cocaine found in the cab was valued at
$1,900. In Collins v. Commonwealth, we acknowledged that such
amounts are "'something of significant value and not something
that one would likely have abandoned or carelessly left in the
area there.'" 13 Va. App. 177, 180, 409 S.E.2d 175, 176 (1991)
(quoting the trial court). It is unlikely that someone other than
appellant left almost $2,000 worth of cocaine in plain view on the
floor of the cab.
More importantly, when the police activated their emergency
equipment, appellant removed his left hand from the back of the
seat, "put his arm down, leaned forward, move[d] to the left and
he bent down to the left where his shoulder was bent down below
the rear window." This furtive gesture, when viewed in the
totality of the circumstances, supports the trial court's finding
that appellant was aware of the presence and the character of the
drug and that the drug was subject to his dominion and control.
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See Powell v. Commonwealth, 27 Va. App. 173, 178-79, 497 S.E.2d
899, 901 (1998).
This Court previously has considered such gestures evidence
of possession. In Powell, for example, Powell was sitting on a
low wall when he placed his clenched fist behind his back. Id. at
176, 497 S.E.2d at 900. When he brought his hand back in front,
the hand was unclenched. Id. Police found a small paper bag
containing cocaine lying on the ground directly below the spot
where Powell had been sitting. Id. We held:
Appellant's suspicious hand movement and the
fact that cocaine was found precisely where
the appellant would have dropped an object
from his left hand behind his back, support
the inference that appellant possessed the
bag of cocaine and discarded it on the ground
behind him when the officers approached.
Id. at 178-79, 497 S.E.2d at 901. See also Clarke v.
Commonwealth, 32 Va. App. 286, 305-06, 527 S.E.2d 484, 493-94
(2000) (affirming a conviction for possession of firearm while
intending to distribute drugs based in part on evidence that
appellant reached behind his seat toward a gun).
More than mere presence proved appellant possessed the
cocaine. From the evidence presented, the trial court could
properly conclude that appellant was guilty of possession with the
intent to distribute. We affirm the conviction.
Affirmed.
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