Virginia Lawyers Weekly VA Lawyers Weekly
Where police found a bag of heroin on top of a bag of marijuana in the console of the car appellant was driving, there was sufficient evidence for a factfinder to determine that appellant had dominion and control over the drugs. His conviction for possessing heroin is confirmed.
Facts
Miller, a police officer, stopped appellant King for speeding. King, the lone occupant of the vehicle, parked it in front of a house. Miller parked, approached King and told him he was driving too fast. King disagreed and walked up to the house, where he had a brief conversation with a young girl. King told Miller he and girl were cousins. She let King into the house.
According to Miller, the girl appeared nervous, so he knocked on the door. The girl confirmed King was her cousin and said his first name was Talik. King then volunteered his last name to Miller.
Miller went back to his squad car, ran a check on King and discovered an outstanding warrant. He placed King under arrest and obtained the keys to the car he was driving. As he walked toward the car, there was a strong odor of burnt marijuana. Miller searched the car. He opened the center console and discovered a bag of heroin. Underneath it, there was a bag of marijuana.
More than ‘mere proximity’
“In challenging his conviction, King points out the absence of evidence commonly used to secure a conviction. He did not make any incriminating statements. No fingerprints or DNA evidence linked King to the drugs found in the vehicle. Additionally, the Commonwealth offered no evidence concerning the ownership or regular use of the vehicle. He also contends that the evidence does not establish his familiarity with the smell of marijuana. King argues that this record establishes his proximity to the illegal drugs, but nothing more.
“To establish criminal possession of a controlled substance, the evidence must demonstrate beyond a reasonable doubt that the defendant ‘intentionally and consciously possessed [the substance] with knowledge of its nature and character.’ … We acknowledge the longstanding principle that proximity alone to an illegal substance is not sufficient to convict. … These facts show more than mere proximity, however.
“King was traveling alone in the vehicle. When Officer Miller approached the car, he noticed a strong smell of freshly burned marijuana emanating from the vehicle. A factfinder could plausibly infer from this circumstance that King, the sole occupant of the vehicle, had recently smoked marijuana in the vehicle.
“A search of the vehicle yielded a baggie containing marijuana. This marijuana was located in the center console beneath a baggie containing heroin. A factfinder could sensibly draw the inference that the marijuana in the vehicle was the marijuana that King, the lone occupant of the vehicle, had freshly smoked – as opposed to drawing the inference that this marijuana was a separate stash left behind by an unknown stranger.
“Furthermore, if King was aware of the nature and presence of the marijuana in the center console, and that he exercised dominion and control over this illegal substance, the factfinder could likewise deduce that he was aware of the presence and character of the heroin that was located above the marijuana in the center console.”
Affirmed.
King vv. Commonwealth, Record No. 190424 (Order) Jan. 30, 2020, (COA). Sante John Piracci for Appellant, Kenneth Allen Blalock, Lauren Catherine Campbell for Appellee. VLW 020-6-005, 3 pp.
