Virginia Lawyers Weekly//October 3, 2023
Virginia Lawyers Weekly//October 3, 2023//
Where appellant was detained on suspicion of shoplifting, there was sufficient evidence to convict her of possessing a controlled substance after a baggie of methamphetamine was found next to where she had been sitting while a police officer searched her purse.
“Stafford County Sheriff’s Deputy Crossett arrived at a store in response to a reported theft. A store employee reported that he saw Johnson concealing merchandise and altering their price tags. …
“At the employee’s direction, Deputy Crossett watched Johnson on a store surveillance camera as she approached a cash register carrying a purse and pretended to pay for the stolen items.
“As she did so, Deputy Crossett noticed that Johnson ‘stumbl[ed],’ had ‘very jerky mannerisms,’ and ‘seemed unable to control her facial expressions,’ which he opined was consistent with ‘intoxication.’
“When Johnson attempted to leave the store without paying for the stolen merchandise, Deputy Crossett confronted her. Johnson immediately raised her arms in surrender and began crying, so the deputy escorted her to an office to question her.
“Johnson sat on a bench while Deputy Crossett searched her purse, which contained stolen merchandise and ‘Suboxone strips.’ Denying that she was intoxicated, Johnson claimed that she had recently consumed ‘over the counter speed’ and had not slept in two days.
“As she spoke to the deputy, Johnson reached inside her jacket pocket to remove more stolen items and accidentally knocked over a box that was beside her. When Johnson stood to pick up the box, Deputy Crossett noticed a small plastic bag containing ‘crystalline white powder’ on the bench ‘exactly where’ Johnson had been sitting.
“At trial, Deputy Crossett testified that the plastic bag had not been there previously and it ‘lined up nearly perfectly with [Johnson’s] right jacket pocket, as if it had fallen out when she removed’ the stolen items. Forensic testing established that the plastic bag contained methamphetamine, a Schedule II controlled substance.
“Johnson told Deputy Crossett that she was wearing her daughter-in-law’s jacket and that ‘the methamphetamine that was in [her] pocket was her daughter-in-law’s.’
“Johnson, a convicted felon, testified at trial and denied knowledge of the methamphetamine. She maintained that she had borrowed her daughter-in-law’s jacket and did not use drugs, although Johnson had prior convictions for drug possession and she recognized the appearance of methamphetamine.
“Johnson also claimed that she had a hip injury that explained her erratic movements in the store.
“Following closing arguments, the trial court convicted Johnson of possession of a Schedule I or II controlled substance.”
On appeal, Johnson argues there was insufficient evidence to convict her. “Additionally, she asserts that the evidence failed to exclude her reasonable hypothesis of innocence that a third party hid the methamphetamine in the office without her knowledge and she accidentally discovered it by knocking over the box. We disagree. …
“The record supports the trial court’s finding that Johnson knowingly and intentionally possessed the methamphetamine found on the bench.
“To begin, we have recognized that although a person’s proximity to contraband alone is insufficient to establish possession, it is a ‘probative factor to be considered in determining whether the totality of the circumstances supports a finding of possession.’ …
“Deputy Crossett testified that immediately after Johnson reached into her pocket and stood up to retrieve the fallen box, he found the methamphetamine ‘exactly’ where Johnson had been sitting—’lined up nearly perfectly with [Johnson’s] right jacket pocket, as if it had fallen out.’ …
“Moreover, a fact finder may infer a defendant’s knowledge of the nature and character of a controlled substance from his confessed prior use of that drug. … Johnson admitted that she recently consumed ‘over the counter speed,’ and she appeared ‘intoxicated’ and exhibited ‘erratic’ behavior consistent with drug use.
“Additionally, although Johnson claimed that a third party placed the methamphetamine in the office without her knowledge, it is well-established that methamphetamine and other drugs are ‘commodit[ies] of significant value, unlikely to be abandoned or carelessly left in an area.’ …
“Indeed, in judging Johnson’s credibility, the trial court was entitled to discount her self-serving denials of drug use and knowledge of the methamphetamine as ‘little more than l[ies] to “conceal h[er] guilt,” and could treat such prevarications as “affirmative evidence of guilt.”’ …
“In sum, a rational fact finder could conclude from the above evidence that Johnson knowingly and intentionally possessed the methamphetamine. In addition, the record supports the trial court’s finding that the evidence did not contain a reasonable theory of innocence.
“Accordingly, we find no basis to disturb the trial court’s judgment.”
Johnson v. Commonwealth, Record No. 1506-22-4, Sept. 12, 2023. CAV (unpublished opinion) (Annunziata) From the Circuit Court of Stafford County. (Willis) (Alexander Raymond; Raymond Law, PLC, on brief), for appellant. Appellant submitting on brief. (Jason S. Miyares, Attorney General; Michael L. Eaton, Assistant Attorney General, on brief), for appellee. VLW 023-7-350, 6 pp.