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KELLY v. COMMONWEALTH


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KELLY

v.

COMMONWEALTH


COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Elder and Senior Judge Coleman
Argued at Chesapeake, Virginia
Record No. 3100-01-1
DEMETRIUS KELLY


v.


COMMONWEALTH OF VIRGINIA
MEMORANDUM OPINION*[1] BY JUDGE SAM W. COLEMAN III
JANUARY 21, 2003


FROM THE CIRCUIT COURT OF ACCOMACK COUNTY

Glen A. Tyler, Judge

William L. Taliaferro, Jr. (Swartz, Rabinowitz, Taliaferro, Lewis, Swartz & Goodove, on briefs), for appellant.

John H. McLees, Senior Assistant Attorney General (Jerry W. Kilgore, Attorney General; Susan M. Harris, Assistant Attorney General, on brief), for appellee.

Demetrius Kelly appeals his bench trial convictions for importing narcotics into Virginia with the intent to distribute, Code ??18.2-248.01, and possessing marijuana with the intent to distribute, Code ??18.2-248.1. He argues the evidence was insufficient to support his convictions. Finding the evidence insufficient to convict Kelly of importing narcotics into Virginia but sufficient to convict him of possession of marijuana with the intent to distribute, we reverse in part and affirm in part the judgment of the trial court.

BACKGROUND

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). “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.” Watkins v. Commonwealth, 26 Va. App. 335, 349, 494 S.E.2d 859, 866 (1998). 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).

So viewed, the evidence proved that on March 14, 2000, State Trooper William Talbert stopped the vehicle Kelly was driving for having unapproved tinting on its windows. Kelly was driving southbound on Route 13 in Accomack County. Talbert approached the driver’s side of the vehicle and asked Kelly for his identification. The officer testified Kelly appeared nervous and that his hands shook. Talbert detected the odors of both burnt and “green” marijuana.

Kelly’s license bore a Norfolk address. Talbert asked Kelly from where he was travelling. Kelly twice told the officer that he and his passenger, Joey Knight, had been in Maryland. Knight told the officer they were coming from New York.

Talbert searched Kelly’s vehicle and found marijuana seeds, flakes, and chunks throughout the car. In the back of the vehicle, the officer found a black duffel bag. Its contents were heavily wrapped in cellophane. Talbert told Kelly he was under arrest for trafficking cocaine. Talbert testified Kelly looked “extremely surprised” and stated, “cocaine?” Talbert transported the two men to the police station and as he placed the duffel bag on a table, Kelly exclaimed, “Man, that ain’t my weed.” Talbert testified he did not know the contents of the bag until he cut through the cellophane, that Kelly was not placed where he could observe the contents of the bag, and had not been told the bag contained marijuana.

The bag contained twenty pounds and five ounces of marijuana. Talbert testified that amount of marijuana was inconsistent with personal use. Where Talbert stopped and searched Kelly’s vehicle was approximately ten miles from the Virginia-Maryland state line.

ANALYSIS

I.

In pertinent part, Code ??18.2-248.01 provides that “it is unlawful for any person to transport into the Commonwealth by any means with intent to sell or distribute .?.?. five or more pounds of marijuana.” Kelly argues the Commonwealth failed to prove he transported the drugs into Virginia. We agree.

“[A] violation of Code ??18.2-248.01 occurs at the moment a person transporting illegal substances penetrates the borders of the Commonwealth.” Seke v. Commonwealth, 24 Va. App. 318, 325, 482 S.E.2d 88, 91 (1997). Although the circumstances were suspicious, the record does not support the trial court’s conclusion that Kelly possessed the drugs when he entered Virginia from Maryland. Although Kelly twice informed the officer that he and Knight were coming from “somewhere in Maryland,” he did not indicate he purchased or possessed the drugs at that time and the evidence does not prove that essential element. The fact that Kelly possessed the drugs in close proximity to the Virginia-Maryland state line and that he was coming from somewhere in Maryland does not reasonably support an inference by the fact finder that Kelly brought the drugs from Maryland into Virginia anymore so than that he acquired the drugs after he came into Virginia.

In McCary v. Commonwealth, 36 Va. App. 27, 548 S.E.2d 239 (2001), we held that the detective’s testimony that McCary admitted bringing cocaine into Virginia from North Carolina provided sufficient evidence to support a Code ??18.2-248.01 conviction. Id. at 41, 548 S.E.2d at 246. Kelly made no such admission to the police, and no evidence in the record indicates Kelly possessed the marijuana at the time he entered the Commonwealth.

To justify conviction of a crime, it is insufficient to create a suspicion or probability of guilt. Rather, the burden is upon the Commonwealth to prove every essential element of the offense beyond a reasonable doubt. “The evidence must exclude every reasonable hypothesis of innocence and be consistent only with the guilt of the accused.”

Moore v. Commonwealth, 254 Va. 184, 186, 491 S.E.2d 739, 740 (1997) (citation omitted). Because neither Kelly nor Knight admitted obtaining the drugs while out of state, and because no other evidence indicated Kelly brought the marijuana from outside Virginia, the evidence was insufficient to support his Code ??18.2-248.01 conviction.

II.

Kelly argues only that the Commonwealth failed to establish he possessed the contraband. We disagree.

“The Commonwealth may prove possession of a controlled substance by showing either actual or constructive possession.” Barlow v. Commonwealth, 26 Va. App. 421, 429, 494 S.E.2d 901, 904 (1998).

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). “The Commonwealth is not required to prove that there is no possibility that someone else may have planted, discarded, abandoned or placed the drugs .?.?.?.” Brown v. Commonwealth, 15 Va. App. 1, 10, 421 S.E.2d 877, 883 (1992) (en banc). “Although mere proximity to the contraband is insufficient to establish possession, it is a factor that may be considered in determining whether a defendant possessed the contraband. Ownership or occupancy of the premises on which the contraband was found is likewise a circumstance probative of possession.” Archer v. Commonwealth, 26 Va. App. 1, 12, 492 S.E.2d 826, 832 (1997).

Talbert testified he noted a strong scent of burnt and green marijuana emanating from Kelly’s vehicle. Kelly was the owner and driver of the car and appeared nervous during the encounter with the officer. Kelly appeared surprised upon hearing he was being arrested for possession of cocaine. At the police station, Kelly indicated the marijuana was not his before he had been informed there was marijuana in the bag. Kelly’s statements and conduct, his ownership of the vehicle, and proximity to the drugs indicate he knowingly possessed the contraband. The Commonwealth’s evidence was competent, was not inherently incredible, and was sufficient to prove beyond a reasonable doubt that Kelly was guilty of possession of marijuana with the intent to distribute.

Accordingly, we affirm Kelly’s conviction for possession of marijuana with the intent to distribute, and we reverse his conviction for importing narcotics into Virginia with the intent to distribute and dismiss that indictment.

Affirmed in part,

reversed in part

and dismissed.

Benton, J., concurring, in part, and dissenting, in part.

I join in the parts of the opinion styled BACKGROUND and ANALYSIS (I); therefore, I concur in reversing the conviction for importing narcotics into Virginia with the intent to distribute. I dissent from ANALYSIS (II).

This conviction was based on circumstantial evidence of constructive possession. To prove that an accused constructively possessed a controlled substance, “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.” Powers v. Commonwealth, 227 Va. 474, 476, 316 S.E.2d 739, 740 (1984).

[W]ell established principles apply to testing the sufficiency of circumstantial evidence .?.?.?.

“[I]f the proof relied upon by the Commonwealth is wholly circumstantial, as it here is, then to establish guilt beyond a reasonable doubt all necessary circumstances proved must be consistent with guilt and inconsistent with innocence. They must overcome the presumption of innocence and exclude all reasonable conclusions inconsistent with that of guilt. To accomplish that, the chain of necessary circumstances must be unbroken and the evidence as a whole must satisfy the guarded judgment that both the corpus delicti and the criminal agency of the accused have been proved to the exclusion of any other rational hypothesis and to a moral certainty.”

But, circumstances of suspicion, no matter how grave or strong, are not proof of guilt sufficient to support a verdict of guilty. The actual commission of the crime by the accused must be shown by evidence beyond a reasonable doubt to sustain his conviction.

Clodfelter v. Commonwealth, 218 Va. 619, 623, 238 S.E.2d 820, 822 (1977) (citations omitted).

Although Kelly was in close proximity to the marijuana, he was no closer to it than his passenger. Furthermore, Code ??18.2-250 could not be clearer: “Upon the prosecution of a person [for possession of a controlled substance], ownership or occupancy of .?.?. [a] vehicle upon or in which a controlled substance was found shall not create a presumption that such person either knowingly or intentionally possessed such controlled substance.” The opaque duffel bag in the rear compartment of the vehicle was not shown to be Kelly’s. Indeed, the evidence is equally consistent with the conclusion that the duffel bag belonged to Kelly’s passenger. “Although both men were riding in the automobile, no evidence or rule of law compels a finding that a person who shares an automobile with another necessarily knows that the other person has contraband or also shares possession of contraband that the other person has in the automobile.” Scruggs v. Commonwealth, 19 Va. App. 58, 62, 448 S.E.2d 663, 665 (1994). See also Crisman v. Commonwealth, 197 Va. 17, 20-21, 87 S.E.2d 796, 798-99 (1955) (occupants of an automobile not presumed to know that a small amount of white powder on the floor was heroin); Jones v. Commonwealth, 17 Va. App. 572, 573, 439 S.E.2d 863, 864 (1994) (occupant of automobile not presumed to have awareness of presence and character of small pieces of cocaine on tray between occupant and driver).

The police officer testified that during the road-side interrogation Kelly denied he had drugs or guns in the vehicle. Despite Kelly’s denial, the officer searched the vehicle because he believed he detected the smell of “a sweet deodorizer, and .?.?. [the] smell [of] burnt marijuana .?.?. and a greenish tinge of marijuana .?.?. from outside the car.” No evidence, however, established that Kelly knew or should have known that the odor, which the officer said he detected, indicated the bag contained marijuana.

Furthermore, the evidence contains innocent explanations for Kelly’s surprised reaction to the cocaine accusation, for his statement at the police station concerning the marijuana, and for denying that the marijuana was his. The officer testified that before he searched the vehicle, he “advised .?.?. Kelly that [he] smelled marijuana in the car and .?.?. was going to check the vehicle.” After seizing the bag, he “thought .?.?. [it] might have [contained] cocaine and marijuana.” The evidence proved Kelly expressed surprise when the officer told him he was “under arrest for trafficking cocaine.” That expression of surprise is consistent with Kelly’s disbelief that cocaine was in the vehicle and with incredulity that some other unlawful substance existed when the officer had said he smelled marijuana.

The officer’s testimony about the events following the arrest did not prove beyond a reasonable doubt Kelly knew when he was driving that marijuana was in the duffel bag in the rear compartment. He described those events as follows:

A: Mr. Kelly and Mr. Knight were separated and they were put in the task force office in another room where they couldn’t see us and they were being watched at a desk in the office.

Q: Were they separated from one another?

A: They were separated from one another and from the contraband.

Q: They were not in that same room?

A: That’s correct, they were not.

Q: Was there any further conversation with the defendant, Mr. Kelly?

A: He sat there in the open room of the stuff. I started taking the items out and placed them on the table to see what they were and kind of walked back and forth between Mr. Kelly and the other room and observed what was going on. Mr. Kelly just blurted out, he said, Man, that ain’t my weed.

Q: Had you said anything to him about weed?

A: Not as of yet. I didn’t know it was marijuana until we took it out and started cutting it open.

Q: Was he in a position to be able to see the “weed”?

A: No, sir.

Q: So had he been questioned about marijuana?

A: Yes.

In view of the officer’s statement to Kelly that he would search the vehicle because he smelled marijuana and the officer’s interrogation of Kelly about marijuana, the evidence provides ample bases for Kelly to believe the officers found marijuana and to preemptively declare the marijuana was not his.

This evidence proved only suspicious circumstances because of Kelly’s proximity to the duffel bag. Inferences that are drawn from these suspicious circumstances alone are not sufficient to prove knowing possession of a controlled substance. No evidence proved that Kelly knew the controlled substances were in the bag before the officer opened it and arrested him. “Evidence merely that the accused was in the proximity of controlled substances is insufficient .?.?. to prove that the accused was aware of the presence and character of a controlled substance.” Jones, 17 Va. App. at 574, 439 S.E.2d at 864.

Even if it is probable that the marijuana belonged to Kelly, probability of guilt is insufficient to warrant a criminal conviction. Crisman, 197 Va. at 21, 87 S.E.2d at 799. Because “the evidence must establish the guilt of an accused beyond a reasonable doubt .?.?.?[,] guilt .?.?. 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). Suspicious circumstances “‘no matter how grave or strong, are not proof of guilt sufficient to support a verdict of guilty. The actual commission of the crime by the accused must be shown by evidence beyond a reasonable doubt to sustain his conviction.’” Crisman, 197 Va. at 21, 87 S.E.2d at 799 (quoting Powers v. Commonwealth, 182 Va. 669, 676, 30 S.E.2d 22, 25 (1944)).

For these reasons, I would reverse both convictions.


FOOTNOTES:

[1]* Pursuant to Code ??17.1-413, this opinion is not designated for publication.

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