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WHITE v. COMMONWEALTH




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WHITE

v.

COMMONWEALTH


COURT OF APPEALS OF VIRGINIA

Present: Judges Elder, Bumgardner and Senior Judge Overton

Argued by teleconference

Record No. 0591-03-2

SHERMAN C. WHITE, SOMETIMES KNOWN AS

SHERMAN C. WHITE

v.

COMMONWEALTH OF VIRGINIA

 

MEMORANDUM OPINION[1]
BY JUDGE RUDOLPH BUMGARDNER, III

OCTOBER 28, 2003

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND

Robert W. Duling, Judge

David M. Gammino for appellant.

Alice T. Armstrong, Assistant Attorney General (Jerry W.
Kilgore,

Attorney General; H. Elizabeth Shaffer, Assistant Attorney
General,

on brief), for appellee.

Sherman C. White appeals his convictions of possession of
cocaine and marijuana both

with the intent to distribute. He maintains the evidence was
insufficient to prove possession of

the drugs. Finding the evidence sufficient to prove he
constructively possessed them, we affirm.

We view the evidence and the reasonable inferences fairly
deducible therefrom in the

light most favorable to the Commonwealth. Dowden v.
Commonwealth, 260 Va. 459, 467, 536

S.E.2d 437, 441 (2000). Police officers saw the defendant in a
Jeep Cherokee about three hours

before they executed a search warrant at the apartment of his
girlfriend. They had previously

seen the defendant in the Jeep more than forty times in the last
month and a half. When the

police executed the warrant at 6:00 a.m., the Jeep was parked
outside the apartment. The

defendant was in a back bedroom where the police found keys to a
Chrysler-make automobile.

They were on the dresser next to a pair of glasses, a smoking
device, and marijuana. The

defendant conceded the marijuana on the dresser was his. The
officers also found marijuana in

his right front pocket.

The defendant claimed to know nothing about the car keys. He
told the officers he had

arrived by bus from Danville to visit his girlfriend. The Jeep
was not registered to the defendant,

and he denied knowing its owner. When told the police had
recently seen him in the Jeep, the

defendant claimed the owner lived in the apartments. The officer
then pressed a button on the

key, which activated an alarm in the Jeep and started its
engine. When shown a search warrant

for the Jeep, the defendant claimed he did know the owner, and
he began to pace, sweat, and

breathe faster.

The police searched the Jeep. They found crack cocaine,
marijuana, about $1,400 cash,

digital scales, and a wallet containing the defendant’s driver’s
license. All the items were in a

closed compartment, "under the back seat on the driver’s
side." The police had "to break open

the back seat" to find the items and recover them.

The defendant contends someone else could have put the drugs in
the car and relies on

Burchette v. Commonwealth, 15 Va. App. 432, 425 S.E.2d 81
(1992). Police officers executed a

search warrant for Burchette’s locked vehicle. They recovered
drugs, drug paraphernalia, a

loaded handgun, and a wallet containing the defendant’s driver’s
license. This Court reversed

the defendant’s drug conviction because no evidence established
whether he had keys to the car,

when he last used the car, whether he had exclusive use of it,
and whether he occupied the car

when the drugs were present. Id. at 435-36, 425 S.E.2d at 84.

To prove the defendant possessed the cocaine and marijuana found
in the Jeep, "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." Powers v.

Commonwealth, 227 Va. 474, 476, 316 S.E.2d 739, 740 (1984). In
the present case, the officers

had seen the defendant in the Jeep more than forty times and saw
him in it just hours before the

search. Though the Jeep was not registered to the defendant, the
keys that would start it

remotely were on the dresser of his room where he lay. The
defendant admitted the marijuana,

which was next to the keys, was his. The defendant gave
conflicting statements about the Jeep

and became visibly nervous when he learned the officers had a
warrant to search it. The

defendant’s driver’s license was found with the drugs in a
concealed compartment in the back

seat that could only be entered with force.

The facts connect the defendant to the Jeep and to the drugs
hidden in it. Unlike the facts

in Burchette, the only hypothesis flowing from the evidence was
that the defendant was in recent

possession of the Jeep, was aware of the presence and character
of the items hidden in it and that

they were subject to his dominion and control. See Goins v.
Commonwealth, 251 Va. 442, 467,

470 S.E.2d 114, 130 (1996). Accordingly, we affirm the
convictions.

Affirmed.

 

FOOTNOTES:

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


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