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WILLIAMS v. COMMONWEALTH (54642)



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WILLIAMS

v.

COMMONWEALTH


SEPTEMBER 21, 1999

Record No. 1156-98-1

ROBERT GREG WILLIAMS, JR.

v.

COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK

Charles E. Poston, Judge

Present: Judges Bray, Frank and Senior Judge
Baker

Argued at Norfolk, Virginia

MEMORANDUM OPINION* BY JUDGE ROBERT
P. FRANK

J. Carroll Melton, II, for appellant.

Ruth M. McKeaney, Assistant Attorney General
(Mark L. Earley, Attorney General of Virginia, on brief), for
appellee.


Following a bench trial on March 9, 1998,
Robert Greg Williams, Jr. (appellant) appeals his convictions of
possession of a firearm by a convicted felon, possession of a
concealed weapon by a convicted felon, possession of a firearm
while in the possession of heroin, possession of a firearm while
in the possession of cocaine, possession of an imitation
controlled substance with intent to distribute, and possession of
cocaine with intent to distribute within 1,000 feet of school
property. On appeal, appellant challenges the sufficiency of the
evidence to support the convictions. We find that the trial judge
did not err in denying appellant’s motion to strike the evidence,
and we affirm the convictions.

I. BACKGROUND

On February 3, 1997, appellant was the right,
front passenger in a vehicle stopped for travelling in the wrong
direction on a one-way street by Officers Infantino, Thompson,
and Lee and Corporal Huffman of the Norfolk Police Department.
The vehicle was stopped within 1,000 feet of an elementary
school. As Officer Infantino and Corporal Huffman approached the
vehicle, appellant’s eyes became wide. He acted nervous and began
fidgeting, looked around, and then reached down with his right
arm towards the floor of the vehicle or under the seat. The
officers commanded appellant to put his hands where they could
see them. When Officer Infantino reached the passenger-side door,
appellant handed the officer a red straw containing a white
powdery residue. He told Officer Infantino that there was no
residue on the straw.

Appellant exited the car, and Officer Infantino
and Corporal Huffman performed a pat-down search. In appellant’s
front pants pocket, the officers found a bag containing two,
white, rock-like substances. Appellant told the officers that
they were his "lucky rocks." The substances were later
confirmed to be crack cocaine.

During a more thorough search of appellant by
Officer Thompson, appellant attempted to drop a tissue from his
hands. A wax paper envelope containing heroin was wrapped inside
the tissue.

During a search of the vehicle, the officers
found a loaded nine millimeter semi-automatic pistol under the
passenger seat closer to the right, passenger-side door. They
also found a plastic baggie containing imitation cocaine sticking
out of the glove compartment, directly in front of appellant’s
seat. The corner of the baggie was in plain view, and white
powder was visible inside the bag.

Corporal Huffman testified that the imitation
cocaine was inconsistent with personal use, and the combination
of the heroin, crack cocaine and imitation cocaine was
"consistent with a user that’s selling to support his
habit."
[1]

Appellant was tried in a bench trial on March
9, 1998, and was convicted of escape without force, possession of
heroin, possession of a firearm while in the possession of
heroin, possession of imitation cocaine with intent to
distribute, possession of cocaine, possession of a firearm while
in the possession of cocaine, possession of cocaine with intent
to distribute within 1,000 feet of school property, possession of
a firearm by a convicted felon, possession of a concealed weapon
by a convicted felon, and failure to appear.

II. ANALYSIS

"We review the evidence in the light most
favorable to the Commonwealth and give it all reasonable
inferences fairly deducible therefrom. The judgment appealed from
will be affirmed unless it appears from the evidence that it is
plainly wrong or without evidence to support it." McGee
v. Commonwealth
, 4 Va. App. 317, 322, 357 S.E.2d 738, 740
(1987). "’Circumstantial evidence is as competent and is
entitled to as much weight as direct evidence provided it is
sufficiently convincing to exclude every reasonable hypothesis
except that of guilt.’" Id. (quoting Coleman v.
Commonwealth
, 226 Va. 31, 53, 307 S.E.2d 864, 876 (1983)).

A. Possession of imitation
cocaine with intent to distribute

Appellant was convicted of possession of an
imitation controlled substance (imitation crack cocaine) with the
intent to distribute. He challenges the conviction on the ground
that the evidence was insufficient to support the conviction.

"Possession of a controlled substance may
be actual or constructive." Id. (citing Archer v.
Commonwealth
, 225 Va. 416, 418, 303 S.E.2d 863, 863 (1983)).
Possession does not have to be exclusive; possession of the drugs
may be shared by more than one person. See Ritter v.
Commonwealth
, 210 Va. 732, 741, 173 S.E.2d 799, 806 (1970).
Appellant did not have actual possession of the imitation
controlled substance, so the evidence must show constructive
possession.

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
the 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)).

Ownership or occupancy of a
vehicle or of premises where illicit drugs are
found is a circumstance that may be considered
together with other evidence tending to prove
that the owner or occupant exercised dominion and
control over items in the vehicle or on the
premises in order to prove that the owner or
occupant constructively possessed the contraband.

Burchette v. Commonwealth, 15 Va. App.
432, 435, 425 S.E.2d 81, 83 (1992) (citations omitted). Physical
proximity to the contraband is not, alone, sufficient to support
a conviction based on constructive possession, but is a
circumstance to be considered with other evidence. See Powers,
227 Va. at 476, 316 S.E.2d at 740. Possession of other drugs or
paraphernalia "are additional facts which [permit] the fact
finder to infer" that the accused had knowledge of the
presence of the drugs. Wymer v. Commonwealth, 12 Va. App.
294, 301, 403 S.E.2d 702, 707 (1991).

In Jones v. Commonwealth, 17 Va. App.
572, 439 S.E.2d 863 (1994) (en banc), this Court
held that the mere proximity of a passenger in a car to small
rocks of crack cocaine in the vehicle’s console was insufficient
to establish possession. We held that the evidence did not
establish the length of time the passenger occupied the vehicle
or that the passenger occupied the vehicle when the police
officer received the report that drugs were being used in the
vehicle. See id. at 574, 439 S.E.2d at 864.
Further, there was no evidence that the passenger saw the cocaine
among the other items in the console or that he knew the rocks
were cocaine. See id. The police officer did not
see the passenger using cocaine nor did the driver or the
passenger make any statement indicating that the passenger had
knowledge of the drugs. See id.

This case is distinguishable from Jones.
Appellant was seated in the right, front, passenger seat of the
vehicle. The imitation controlled substance was located in the
glove compartment directly in front of appellant’s seat and in
his line of sight. The corner of the bag containing the substance
was sticking out of the glove compartment in plain view, and a
white powdery substance was visible in the bag. As the officers
approached the vehicle, appellant acted nervous and fidgety, his
eye were wide, and he looked around. He was in possession of
other drugs, and he clearly had knowledge relating to drug use as
he stated that there was no residue on the red straw as he handed
it to the police officer. We find that this evidence was
sufficient to show that appellant was aware of the presence and
character of the imitation controlled substance and that it was
subject to his dominion and control.

"Possession of a quantity greater than
that ordinarily possessed for one’s personal use may be
sufficient to establish an intent to distribute it." Hunter
v. Commonwealth
, 213 Va. 569, 570, 193 S.E.2d 779, 780
(1973). The method in which the drugs are packaged may indicate
an intent to distribute it. See Monroe v. Commonwealth,
4 Va. App. 154, 355 S.E.2d 336 (1987).

At trial, Corporal Huffman testified that the
imitation crack cocaine was inconsistent with personal use. The
imitation crack cocaine was chopped into smaller blocks which
Corporal Huffman stated is consistent with a trend among drug
dealers to sell drugs hand-to-hand without packaging material. We
find that this evidence was sufficient to establish intent to
distribute.

We, therefore, affirm the conviction of
possession of an imitation controlled substance with the intent
to distribute.

B. Convictions involving
possession of a firearm

Appellant challenges the sufficiency of the
evidence as to the convictions involving possession of a firearm:
possession of a firearm by a convicted felon, possession of a
concealed weapon by a convicted felon, possession of a firearm
while in the possession of heroin, and possession of a firearm
while in the possession of cocaine. Appellant does not challenge
his status as a convicted felon, and does not argue that he did
not possess the cocaine and the heroin. The evidence is clear
that appellant did not have actual possession of the gun.
Therefore, the issues for review as to these convictions are
whether the evidence was sufficient to show that appellant
constructively possessed the gun and whether the gun was
concealed.

"’A conviction for knowingly and
intentionally possessing a firearm after having been convicted of
a felony . . . requires proof beyond a reasonable
doubt of either actual or constructive possession of the
firearm.’" Gregory v. Commonwealth, 28 Va. App. 393,
397, 504 S.E.2d 886, 888 (1998) (quoting Hancock v.
Commonwealth
, 21 Va. App. 466, 468, 465 S.E.2d 138, 140
(1995)).

This Court has applied the same principles of
law for constructive possession of a controlled substance to
constructive possession of a firearm. See id. at
397-98, 504 S.E.2d at 888.

In this case, the evidence showed the gun was
located under the right, front, passenger seat of the car in
which appellant was the right, front passenger. The gun was
closer to the front, passenger-side door than to the middle of
the passenger compartment. As the police officers approached the
vehicle, appellant leaned forward towards the floor and reached
with his right arm under the seat or to the floor of the vehicle.
Appellant acted nervous, began fidgeting, and looked around. The
officers also found drugs on appellant’s person and an imitation
controlled substance directly in front of where he was sitting.
Corporal Huffman testified that the drugs and the imitation
controlled substance were consistent with a user who sells drugs
to support his habit.
[2] From this evidence, the
fact finder could infer beyond a reasonable doubt that appellant
was aware of the presence and the character of the gun on the
floor of the vehicle and that it was subject to his dominion and
control.

Code ? 18.2-308.2(A) defines a concealed
weapon as one "hidden from common observation." Code
? 18.2-308.2(A). In Main v. Commonwealth, 19 Va.
App. 272, 450 S.E.2d 772 (1994), we held that "’common
observation’ connotes general or ordinary observation," and
it is the province of the trier of fact to determine "what
is common observation and what is not." Main v.
Commonwealth
, 19 Va. App. 272, 275, 450 S.E.2d 772, 773
(1994) (citation omitted).

In this case, the gun was under the front,
passenger seat of the vehicle. The trier of fact determined that
the gun was hidden from common observation, and we will not
disturb that determination on appeal.

We find that the evidence was sufficient to
support the trier of fact’s finding that appellant constructively
possessed the weapon and that the weapon was hidden from common
observation. Therefore, we affirm the convictions involving
possession of the gun: possession of a firearm by a convicted
felon, possession of a concealed weapon by a convicted felon,
possession of a firearm while in the possession of heroin, and
possession of a firearm while in the possession of cocaine.

C. Possession of cocaine with
intent to distribute within 1,000 feet of a school

Appellant contends that the evidence was not
sufficient to support his conviction for possession of cocaine
with intent to distribute within 1,000 feet of a school.
Appellant does not contest that he possessed cocaine. The issues
for determination as to this conviction are whether appellant had
intent to distribute cocaine and whether appellant was within
1,000 feet of school property.

Appellant contends that he did not possess an
amount of cocaine sufficient to establish intent to distribute.
We disagree with appellant and find that the evidence was
sufficient to show that he possessed the requisite intent to
distribute cocaine.

In Colbert v. Commonwealth, 219 Va. 1,
4, 244 S.E.2d 748, 749 (1978), the Supreme Court of Virginia held
that the quantity of drugs possessed by a defendant is "not
necessarily indicative of a lack of intent to distribute."
The defendant in Colbert was discovered in the passenger
seat of a van parked on the grounds of an elementary school. See
id. at 2, 244 S.E.2d at 748. Officers approached the van
because trespassing on school grounds after dark was prohibited. See
id. One of the officers saw a bag of what appeared to be
marijuana over the sun visor, and the other officer saw the
defendant remove a styrofoam bucket from between his legs and put
it behind the seat. See id. The defendant was
arrested, and a search of the van revealed a bag of marijuana
over the sun visor, five "nickel bags" of marijuana in
the styrofoam bucket and a large plastic bag on the defendant’s
seat containing marijuana residue. See id. at 2-4,
244 S.E.2d at 748-49. The defendant had over two hundred dollars
in small denominations on his person. See id. at 3,
244 S.E.2d at 749. The Court held that the evidence was
sufficient to support the conviction for possession with intent
to distribute because "the jury might well have inferred
that the quantity seized was what remained from a larger supply
held for distribution." Id. at 4, 244 S.E.2d at 749.
The Court considered the packaging of the marijuana into
"nickel bags" as a factor that could lead the jury to
infer that the marijuana had been transferred from the large
plastic bag into smaller bags for distribution. See id.
The Court also considered the money in the defendant’s pocket as
a factor that the jury may have used to reach the conclusion that
the defendant sold the marijuana. See id.

We believe that this case is similar to Colbert.
Appellant possessed a small quantity of heroin, a small quantity
of crack cocaine, and an unknown quantity of imitation crack
cocaine. Corporal Huffman testified that the drugs and the
imitation crack cocaine possessed by appellant were inconsistent
with personal use, and, instead, were indicative of a user who
sells drugs to support his habit. Appellant also possessed a
firearm. We believe that despite the small quantity of cocaine
possessed by appellant, other circumstances, i.e., the possession
of heroin, the possession of imitation crack cocaine and the
possession of a firearm, coupled with Corporal Huffman’s
testimony, could permit the fact finder to reasonably infer that
appellant was distributing cocaine.

Code ? 18.2-255.2(A)(ii) states that it
is unlawful to possess a controlled substance with intent to
distribute the substance while "upon public property or any
property open to public use within 1,000 feet
of . . . school property." Code
? 18.2-255.2(A)(ii). The statute further states that
"[v]iolation of this section shall constitute a separate and
distinct felony." Code ? 18.2-255.2(B). The statute
also sets forth a separate penalty that applies in addition to
any penalties proscribed for violations of other provisions of
law arising from the same act. See Code
? 18.2-255.2(B) and (C).

The evidence is undisputed that the vehicle in
which appellant was a passenger was travelling in the wrong
direction on a one-way street and was stopped by the officers
within 1,000 feet of an elementary school. Appellant, however,
argues that since he was in a moving vehicle and the incident
occurred after eleven o’clock at night, he did not violate the
intent of the statute.

Our decision on this issue is controlled by the
Supreme Court of Virginia’s decision in Commonwealth v. Burns,
240 Va. 171, 395 S.E.2d 456 (1990). In Burns, the
defendant was arrested at 8:45 p.m. on a Friday evening for
distributing cocaine on public property within 1,000 feet of a
school. See Commonwealth v. Burns, 240 Va. 171,
174, 395 S.E.2d 456, 457 (1990). School was not in session when
the transaction occurred, school-related activities were not
taking place, and juveniles did not view or take part in the
sale. See id. at 174-75, 395 S.E.2d at 457-58. The
trial court granted the defendant’s motion to dismiss on the
ground that the statute was unconstitutional as applied to Burns.
See id. at 175, 395 S.E.2d at 458. The trial court
reasoned that since the statute did not provide a defense for
transactions which occur when school is not in session and
children are not present, the statute created "an
irrebuttable presumption ‘violative of due process
guarantees.’" Id. The Supreme Court held, however,
that the statute does not create presumptions. See id.
at 176, 395 S.E.2d 459. Instead, the statute "creates a
‘separate and distinct felony,’" which "reflects the
General Assembly’s concern about the aggravated nature of drug
transactions involving children." Id. The Court
stated that the General Assembly incorporated the aggravating
factor, drug transactions occurring within 1,000 feet of a
school, into the offense. See id. Thus, the Court
reasoned, the legislative finding that drug transactions are
harmful to children becomes a matter of substance rather than a
presumption. See id. In its holding the Court
stated:

In our opinion, also implicit
in the General Assembly’s enactment of Code
? 18.2-255.2 is the legislative finding
that the threat of harm to children is
present whether or not school is in session,
school-related activities are being held, or
children are present when drug transactions take
place within 1,000 feet of a school. By its
finding, the General Assembly has settled once
and for all that such drug transactions do cause
harm to children, whether or not children are
present when the transactions take
place. . . . Nor can there be
any question that this latter conclusion is
rationally related to the Commonwealth’s interest
in protecting children from such threatened harm.

Id. at 177, 395 S.E.2d at 459 (emphasis
in original).

Therefore, based on the holding in Burns,
we hold that appellant’s argument that he did not violate the
intent of the statute is without merit, and we find that the
evidence was sufficient to support a conviction under Code
? 18.2-255.2.

We, therefore, hold that the evidence was
sufficient to support appellant’s conviction for possession of
cocaine with intent to distribute within 1,000 feet of school
property.

III. CONCLUSION

For the foregoing reasons, we hold that the
trial court did not err in denying appellant’s motion to strike
the evidence and that the evidence was sufficient to support
appellant’s convictions for possession of a firearm by a
convicted felon, possession of a concealed weapon by a convicted
felon, possession of a firearm while in the possession of heroin,
possession of a firearm while in the possession of cocaine,
possession of an imitation controlled substance with intent to
distribute, and possession of cocaine with intent to distribute
within 1,000 feet of school property. We, therefore, affirm the
convictions.

Affirmed.

 

* Pursuant to Code ? 17.1-413,
recodifying Code ? 17-116.010, this opinion is not
designated for publication.

FOOTNOTES:

[1] While expert testimony on
an ultimate issue of fact is generally inadmissible, appellant
does not challenge Corporal Huffman’s statement on appeal, and,
therefore, the issue is not before this Court. See Llamera
v. Commonwealth
, 243 Va. 262, 414 S.E.2d 597 (1992).

[2] This Court has recognized
there is a relationship between drug distribution and the
presence of weapons. See Logan v. Commonwealth, 19
Va. App. 437, 445, 452 S.E.2d 364, 369 (1994).

 

 

 

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