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JANUARY 23, 2001

Record No. 0684-00-1

Present: Chief Judge Fitzpatrick, Judges Benton
and Clements

Argued at Chesapeake, Virginia





Joseph A. Leafe, Judge


Glenn R. Hilton for appellant.

Robert H. Anderson, III, Senior Assistant
Attorney General (Mark L. Earley, Attorney General, on brief),
for appellee.

Terry D. Jackson (appellant) was convicted in a
bench trial of (1) possession of cocaine, with intent to
distribute, in violation of Code ? 18.2-248, (2) possession
of a firearm, while possessing, with intent to distribute,
cocaine, in violation of Code ? 18.2-308.4(B); and (3)
possession, with intent to distribute, of more than one-half
ounce but less than five pounds of marijuana, in violation of
Code ? 18.2-248(a)(2). On appeal, he contends the evidence
was insufficient to convict him. We agree and reverse and remand
for further proceedings his convictions for possession of cocaine
and marijuana with the intent to distribute. We reverse and
dismiss his conviction for possession of a firearm while
possessing, with intent to distribute, cocaine.

I. Background

Under familiar principles of appellate review,
we examine the evidence in the light most favorable to the
Commonwealth, the prevailing party below, granting to that
evidence all reasonable inferences fairly deducible therefrom. See
Juares v. Commonwealth, 26 Va. App. 154, 156, 493 S.E.2d
677, 678 (1997). On May 13, 1999, the Norfolk Police Department
executed a search warrant at 3126 Argonne Avenue, Apartment B, in
Norfolk. The warrant was obtained on the sworn affidavit of
Investigator J.F. Poch, who did not testify. The affidavit
asserted that three controlled buys were made at the apartment
and described two men involved in the sales, neither of whom was
appellant. One of the men described in the affidavit was later
identified as Gary Hill (Hill). The other man was not identified.
After the search warrant was issued but before its execution, the
confidential informant conducted a fourth controlled buy. The
fourth buy occurred two to three hours before the warrant was
executed. The confidential informant described the seller to
police as "[a]pproximately five nine, 160 pounds,
light-skinned, medium Afro, . . . wearing a
light-colored shirt, in his early 20’s." The confidential
informant did not testify at trial.

When Officer R.C. Boone (Boone) executed the
warrant, he found appellant and Hill sitting on a couch. Five
small bags of cocaine, weighing a total of .48 grams with a
street value of $50, were on a coffee table in front of the couch
and two bags of marijuana, containing a total of 2.64 ounces of
marijuana, were on the coffee table. A 1.34 ounce bag of
marijuana was on the couch next to appellant. A digital scale in
a leather case was found on the coffee table. Boone saw a handgun
on the couch between appellant and Hill.

A search of the rest of the apartment uncovered
4.48 ounces of marijuana in the hallway closet and .08 ounces of
marijuana in the kitchen cabinet. Appellant admitted he was aware
of the marijuana on the coffee table and couch and the handgun on
the couch. However, other than appellant’s presence in the
apartment at the time the officers executed the search warrant,
there was no evidence linking appellant to the apartment.

II. Sufficiency of the Evidence

Appellant contends that the evidence was
insufficient to convict him of the three charges. The judgment of
the trial court, sitting without a jury, is entitled to the same
deference as a jury verdict and will be set aside only if plainly
wrong or without evidence to support it. Crawley v.
, 29 Va. App. 372, 375, 512 S.E.2d 169, 170
(1999). "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." Id.
(citation omitted).

In the instant case, appellant was tried on an
indictment alleging that he possessed cocaine, marijuana and a
firearm with the "intent to distribute" the cocaine and
marijuana. "The Commonwealth was required to prove that
appellant ‘intentionally and consciously possessed’ the
[marijuana, cocaine and firearm], either actually or
constructively, with knowledge of its nature and character,
together with the intent to distribute it." Wilkins v.
, 18 Va. App. 293, 298, 443 S.E.2d 440, 444
(1994) (citations omitted).

A. Constructive Possession

Appellant contends that the evidence was
insufficient to prove he possessed the marijuana, cocaine and
firearm. Possession can be actual or constructive. See id.
"Constructive possession may be shown by [appellant’s] acts,
declarations or conduct which support the inference that the
contraband was ‘subject to his dominion or control.’" Id.
(quoting Josephs v. Commonwealth, 10 Va. App. 87, 99, 390
S.E.2d 491, 497-98 (1990) (en banc)). Thus, the
Commonwealth must establish that appellant "was aware of
both the presence and character of the substance and that it was
subject to his dominion and control." Brown v.
, 5 Va. App. 489, 491-92, 364 S.E.2d 773, 774
(1988). "[A] person may constructively possess drugs owned
by another." Harrison v. Commonwealth, 12 Va. App.
581, 585, 405 S.E.2d 854, 857 (1991).

In the instant case, appellant testified that
he knew what marijuana, cocaine and a gun look like. He admitted
he sat on the couch with a handgun between himself and Hill. He
saw the drugs
[3] on a coffee table [4]
located directly in front of the couch and the marijuana on the
side of the couch near him. Appellant noticed the marijuana and
gun as soon as he entered the living room. While talking, Hill
asked appellant if he wanted to "smoke a blunt," but
appellant refused. The drugs and handgun were located within the
immediate vicinity of appellant. At one point, Hill went to the
door and talked to someone else, leaving appellant alone with the
drugs and handgun. In combination, these circumstances establish
appellant’s knowledge of the drugs and firearm and that they were
subject to appellant’s dominion and control. Thus, the
Commonwealth established that appellant constructively possessed
the drugs and firearm. However, our inquiry does not end there.

B. Intent to Distribute

All three of the charged offenses required the
Commonwealth to prove not only possession but also to prove
beyond a reasonable doubt that appellant had the specific intent
to distribute the drugs.
"[P]roof of intent is essential to conviction. While intent
may be shown by circumstantial evidence, the existence of intent
cannot be based upon speculation or surmise." Adkins v.
, 217 Va. 437, 440, 229 S.E.2d 869, 871 (1976).
Where evidence of intent to distribute is wholly circumstantial,
"’all necessary circumstances proved must be consistent with
guilt and inconsistent with innocence and exclude every
reasonable hypothesis of innocence.’" Barksdale v.
, 31 Va. App. 205, 211, 522 S.E.2d 388, 391
(1999) (quoting Dukes v. Commonwealth, 227 Va. 119, 122,
313 S.E.2d 382, 383 (1984)); see also Morton v.
, 13 Va. App. 6, 9, 408 S.E.2d 583, 584 (1991).

To prove appellant’s "intent to
distribute," the Commonwealth presented evidence attempting
to establish that appellant was the seller in the fourth buy
which occurred several hours before the execution of the search
warrant. "The standard for judging the sufficiency of
evidence to prove identity or any other key fact in a criminal
case is . . . the Commonwealth must prove that fact
beyond a reasonable doubt." Crawley, 29 Va. App. at
377-78, 512 S.E.2d at 172 (emphasis in original). In the instant
case, the confidential informant described the seller in the
fourth buy as "[a]pproximately five nine, 160 pounds,
light-skinned, medium Afro, . . . wearing a
light-colored shirt, in his early 20’s." The confidential
informant was the only person who observed the seller during the
fourth sale. There was no evidence presented that the
confidential informant identified appellant as being the seller.
The following colloquy with Investigator Boone occurred during
the trial:

Q. I thought. Investigator, earlier, when I
asked you whether Mr. Jackson had been identified as the person
described by the confidential informant, you said, in essence,
that Investigator Poch would have to address that question?

A. Right. He said to me, he didn’t say to the
informant. He said, Did I identify him from the description, and
yes, I mean, from the description, to me that fit him, yes. I
identified him as such. He didn’t say anything about the
informant identifying him. I’m not sure about the informant
identifying him.

Q. I’d asked you earlier whether the informant
had subsequently identified Mr. Jackson by name. You said, by
just a general physical description. And you said, well, I really
can’t address that. Officer Poch would have to do it. And now
you’ve just said, you identified Mr. Jackson as being the person
who allegedly made the sale to the confidential informant. I’m
wondering how we’re getting to that point? I’m a little confused.

A. Okay, so am I. Basically when you asked me
that question, I told you that he identified him by description
is what I said. And what he just asked me was, based upon the
information that the informant gave to us, did I identify him as
being that subject? To me, that information obtained, matches the
subject. That has nothing to do with the informant, as far as
what I understood. If that’s what it was, then I misunderstood
the question.

Q. That’s what I wanted to make sure of. In
other words, Mr. Jackson seemed to match the general physical
description given by the confidential informant. So you’re
assuming that Mr. Jackson was, in fact, the person who tried to
sell grass to the confidential informant?

A. That’s correct.

Despite testifying that appellant matched the
description provided by the confidential informant, Boone

Q. Did he have the appearance that he has today
with the snakes or the dreads?

A. No.

Q. He did not?

A. Not to that extent, but he did have the
medium dreads.

Thus, Boone confirmed appellant’s testimony
that appellant had "medium dreads" at the time of
arrest not the "medium afro" observed by the
confidential informant. The general description of the seller,
never identified by anyone as appellant, is insufficient to prove
his involvement in the fourth sale. Nor is this a case where the
Commonwealth may rely upon the quantity and packaging of the
drugs to establish appellant’s "intent to distribute"
because "one party in possession of controlled substances
may intend to distribute them while another person who
constructively possesses the same substances because they are
subject to his dominion and control may not share the intent to
distribute the substances." Harrison, 12 Va. App. at
585, 405 S.E.2d at 857. As appellant was not the sole possessor
of the drugs, the Commonwealth must provide further evidence of
"intent to distribute" than simply the quantity and
packaging of the drugs. Absent proof of appellant’s involvement
in the fourth sale, the Commonwealth provided no evidence that
linked appellant to any earlier sale or proved that he
"intended to sell" any drugs.

In summary, we hold the evidence was
insufficient to sustain appellant’s conviction for possession of
a firearm while possessing, with the intent to distribute,
cocaine and dismiss this conviction. We hold the evidence was
insufficient to sustain appellant’s convictions for possession of
cocaine, with intent to distribute, and possession of marijuana,
with intent to distribute, but remand to the trial court for
sentencing on the two lesser-included offenses of possession of
cocaine and marijuana.

Reversed and remanded,

in part, and reversed

and dismissed, in part.

Benton, J., concurring and dissenting.

I concur in Part I and Part II(B) of the
opinion. Because I believe, however, that the evidence failed to
prove Terry Jackson constructively possessed the narcotics and
the gun, I dissent from Part II(A).


The standard governing the analysis of this
circumstantial evidence case is well established.

The burden was on the Commonwealth to prove
beyond a reasonable doubt that [Jackson] was aware of the
presence and character of the [narcotics] and was
intentionally and consciously in physical or constructive
possession of [them]
. To support the conviction, the
possession does not have to be actual or exclusive, but may be
proved by showing that the [narcotics were] subject to
[Jackson’s] dominion and control. But mere proximity to a
controlled drug is not sufficient to establish possession

Wright v. Commonwealth, 217 Va. 669,
670, 232 S.E.2d 733, 734 (1977) (citations omitted) (emphasis
added). The existence of evidence necessary to prove elements of
the offense "cannot be based upon surmise or
speculation." Patterson v. Commonwealth, 215 Va. 698,
699, 213 S.E.2d 752, 753 (1975). "To satisfy the due process
requirements of the . . . Constitution, the prosecution must bear
the burden of proving all elements of the offense beyond a
reasonable doubt." Stokes v. Warden, 226 Va. 111,
117, 306 S.E.2d 882, 885 (1983).

The evidence proved that the apartment was
leased and occupied by Gary Hill, who was present in the
apartment at all times. The evidence proved marijuana and cocaine
were on the table in front of Hill and marijuana was hidden in
other places in Hill’s apartment. The police officer testified
that he did not know how long the cocaine and marijuana had been
on the table and that he detected no smell indicating that
marijuana or cocaine had been smoked. He further testified that
the marijuana and cocaine "weren’t laying open as if someone
had been . . . using it."

As in Wright, the evidence in this case
proved only that Jackson was seated in proximity to the gun and
the cocaine and marijuana. No evidence proved he exerted dominion
or control over any of those items. Indeed, as in Wright,
Jackson "did not live in the apartment, no [cocaine] was
found in his actual possession, and there is no evidence that the
[cocaine] was shared with [the lessee] or that it was under
[Jackson’s] dominion or control." 217 Va. at 670, 232 S.E.2d
at 734. The decisions in Wright, Huvar v. Commonwealth,
212 Va. 667, 187 S.E.2d 177 (1972), and Crisman v.
, 197 Va. 17, 87 S.E.2d 796 (1955), all stand for
the proposition that an accused’s mere proximity to persons who
possess drugs or to places where drugs are found is insufficient
to establish constructive possession. As in those cases, the
evidence here also fails to establish that Jackson owned,
controlled, or used any of the cocaine or marijuana found in
Hill’s apartment.

Apropos to this case, the Court ruled in Huvar
as follows:

The only evidence which connects the [accused] with the drugs involved here is his presence in the apartment
when they were found . . . . There is no evidence that [the
accused] owned, possessed or exercised any control over these
specific drugs.

212 Va. at 668, 187 S.E.2d at 178. No evidence
of acts, declarations, or conduct proved Jackson had dominion or
control over the marijuana or cocaine that was in Hill’s
apartment. Proof that Jackson remained in the living room while
Hill answered a knock on the door fails to prove Jackson
intentionally and consciously possessed Hill’s narcotics. This
evidence proves only that Jackson may have had the opportunity to
exercise control over the items.

"'[C]ircumstances of suspicion, no matter
how grave or strong, are not proof . . . sufficient to support a
verdict of guilty.’" Crisman, 197 Va. at 21, 87
S.E.2d at 799 (citation omitted); see also Stover
v. Commonwealth
, 222 Va. 618, 624, 283 S.E.2d 194, 197

It is well settled in Virginia that to justify
conviction of a crime, it is not sufficient to create a suspicion
or probability of guilt, but the evidence must establish the
guilt of an accused beyond a reasonable doubt. It must exclude
every reasonable hypothesis except that of guilt. The guilt of a
party 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).

The evidence in this record proves only
Jackson’s mere proximity to the cocaine, the marijuana, and the
gun. This evidence creates a mere suspicion that he could have
had control and, thus, it was insufficient to prove constructive
possession beyond a reasonable doubt. As does the majority
opinion, I would reverse the convictions of possession with
intent to distribute the marijuana and the cocaine and the
corresponding conviction for possessing a firearm. In addition,
however, I would also hold that the evidence failed to prove
constructive possession necessary to support the lesser-included
offenses. Accordingly, I would reverse all the convictions and
dismiss the indictments.


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

[2] According to appellant’s
uncontradicted testimony, he had not seen Hill in over five years
and was in the apartment for only thirty minutes before the
search warrant was executed.

[3] On appeal, appellant claims he
was only aware of the marijuana, however, the record indicates he
testified that "the drugs were in front of" him.

[4] Drugs were also found elsewhere
in the apartment. However, the Commonwealth presented no evidence
that appellant had knowledge of the other drugs.

[5] The Commonwealth argues that Rule 5A:18 bars this Court
from considering the "intent to distribute" element of
the crimes because appellant "conceded that whoever
possessed the drugs had intended to distribute them." We
disagree. Appellant argued in his motion to strike that even
though other persons clearly possessed the intent to distribute
the drugs, appellant did not.