COMMONWEALTH OF VA
JANUARY 26, 1999
ALFONZA WYCHE, JR.
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF
THE CITY OF NEWPORT NEWS
Judges Benton, Annunziata and Overton
OPINION  BY JUDGE
ROSEMARIE ANNUNZIATA Robert W. Jones, Jr. (Jones & Jones,
P.C., on brief), for appellant.
Elizabeth Shaffer, Assistant Attorney General (Mark L. Earley,
Attorney General, on brief), for appellee.
("appellant") appeals his convictions under Code
Sects. 18.2-250 and 18.2-308.4 for: (1) possession of
cocaine, and (2) possession of a firearm while in possession of
cocaine, respectively. Appellant contends the evidence was
insufficient to establish his guilt beyond a reasonable doubt. We
disagree and affirm.
When the sufficiency of
evidence is challenged on appeal, we must view the evidence
undergirding a conviction in the light most favorable to the
Commonwealth. Higginbotham v. Commonwealth, 216 Va. 349,
352, 318 S.E.2d 534, 537 (1975). "An appellate court must
discard all evidence of the accused that conflicts with that of
the Commonwealth and regard as true all credible evidence
favorable to the Commonwealth and all fair inferences reasonably
deducible therefrom." Lea v. Commonwealth, 16 Va.
App. 300, 303, 429 S.E.2d 477, 479 (1993).
Viewed in this light, the
following facts were established by the evidence. On April 7,
1997, officers of the Newport News police department executed a
search warrant at 1120 23rd Street in Newport News, which
authorized them to search the premises and all persons found
there. Police described the premises as "the largest open
air drug market in the city," and the constant source of
drug-related incidents. Appellant resided in the one-bedroom,
downstairs apartment of 1120 23rd Street. Appellant had lived in
the apartment for about three or four months. As police
approached the premises, they observed several individuals seated
on the front porch; appellant was seated on a stool just inside
the front screen door. Three juveniles were also found in the
downstairs apartment’s living room.
In the course of the
search of the premises, Detective Best found six
"packs" of heroin wrapped in a piece of white paper on
top of an open toolbox a few feet away from where appellant sat
at the doorway. In the downstairs bedroom, Best also found a rock
of cocaine lying unwrapped and in plain view on the bed’s flat
headboard and various amounts of cash in three separate drawers. 
Another officer, Detective
Stevenson, seized appellant at the doorway and directed him to
the downstairs bedroom, which appellant had identified as his.
While searching appellant in the bedroom, Stevenson asked if he
kept any weapons or drugs there. Appellant directed Stevenson to
a loaded .357 caliber revolver under his bed. Appellant claimed
that a brother, engaged in a domestic dispute, had placed the gun
there for safekeeping. Stevenson found approximately $300 of cash
in appellant’s wallet, $65 of cash in a front pocket of
appellant’s pants, and a pager.
At trial, appellant
testified that he knew nothing about the drugs found in the
bedroom, stating that the downstairs apartment belonged to a
brother, that he was staying there with him, and that he slept on
the couch in the living room, but kept clothes in the bedroom
where the cocaine was found. Appellant further testified that two
of the juveniles found in the downstairs living room were a
nephew and niece, that they were visiting him at the time, and
that they had access to the entire house. There was no evidence
regarding how long these individuals had been in the apartment or
what they were doing prior to the arrival of police.
We will not reverse the
trial court’s judgment unless it is plainly wrong or without
evidence to support it. Code Sect. 8.01-680. To obtain a
conviction of possession of a controlled substance, the
Commonwealth may prove either actual or constructive possession. White
v. Commonwealth, 24 Va. App. 446, 452, 482 S.E.2d 876, 879
(1997). Under a constructive possession theory, "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). Proof of the presence
of contraband on premises owned or occupied by an accused is
insufficient, standing alone, to prove constructive possession.
Code Sect. 18.2-250. Although such evidence is probative, it
is only a circumstance that may be considered with the other
evidence. Tucker v. Commonwealth, 18 Va. App. 141, 144,
442 S.E.2d 419, 421 (1994). Further, the duration of possession
is immaterial, and the defendant need not be in exclusive
possession to sustain a conviction. Clodfelter v. Commonwealth,
218 Va. 619, 622, 238 S.E.2d 820, 822 (1977); Archer v.
Commonwealth, 26 Va. App. 1, 12, 492 S.E.2d 826, 832 (1997).
evidence is sufficient to support a conviction as long as it
excludes every reasonable hypothesis of innocence." Tucker,
18 Va. App. at 143, 442 S.E.2d at 420. "When, from the
circumstantial evidence, ‘it is just as likely, if not more
likely,’ that a ‘reasonable hypothesis of innocence’ explains the
accused’s conduct, the evidence cannot be said to rise to the
level of proof beyond a reasonable doubt." Littlejohn v.
Commonwealth, 24 Va. App. 401, 414, 482 S.E.2d 853, 859
(1997) (quoting Haywood v. Commonwealth, 20 Va. App. 562,
567-68, 458 S.E.2d 606, 609 (1995)). The Commonwealth need not
"exclude every possible theory or surmise," but
only those hypotheses "which flow from the evidence itself,
and not from the imagination of defendant’s counsel." Cantrell
v. Commonwealth, 7 Va. App. 269, 289-90, 373 S.E.2d 328,
338-39 (1988) (citations omitted).
We find the evidence is
sufficient to sustain appellant’s conviction beyond a reasonable
doubt. Police found a rock of unwrapped cocaine lying in plain
view on the headboard of appellant’s bed while executing a search
warrant in the apartment, which was located in a house described
as the largest open air drug market in Newport News. Indeed,
police also found a quantity of heroin on the premises. Appellant
kept his personal property in the room where police found the
drugs and readily identified the hidden location of a gun,
evidencing his familiarity with the room and its contents. There
was no evidence that anyone other than appellant had been in the
bedroom prior to the discovery of drugs within it. Police also
found several bundles of cash in appellant’s bedroom, and two
bundles of cash and a pager on appellant’s person, evidence
generally associated with drug-distribution activities. See
Glasco v. Commonwealth, 26 Va. App. 763, 775, 497 S.E.2d
150, 156 (1998); White v. Commonwealth, 25 Va. App. 662,
668, 492 S.E.2d 451, 454 (1997) (en banc). Finally,
the trial court was entitled to reject appellant’s testimony
professing ignorance of the existence of the drugs in his bedroom
and infer that appellant lied to conceal his guilt. Price v.
Commonwealth, 18 Va. App. 760, 768, 446 S.E.2d 642, 647
(1994). See Speight v. Commonwealth, 4 Va. App. 83,
88, 354 S.E.2d 95, 98 (1987) (stating that the trial court’s
finding as to the credibility of a witness stands on the same
footing as the verdict of a jury and cannot be disturbed unless
plainly wrong or without evidence to support it).
We accordingly affirm the
Benton, J., dissenting.
To support on appeal a
conviction based upon constructive possession of a controlled
substance, "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 [accused] 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).
Based upon evidence that proved only that cocaine was found in
the room "identified as . . . [Alfonza] Wyche’s
bedroom," the majority upholds the convictions for
possession of cocaine and possession of cocaine while
simultaneously possessing a firearm. However, the legislature has
unequivocally determined that in Virginia "ownership or
occupancy of premises . . . in which a controlled
substance was found shall not create a presumption that such
person either knowingly or intentionally possessed such
controlled substance." Code Sect. 18.2-250.
The officer who obtained
the search warrant described the building as follows:
Q: And the house
that you’re talking about there, 1120 – 23rd Street, it
has — when you come in the foyer, you come in the main
door, the front door of the apartment, where you found
Mr. Wyche, there’s a stairway leading upstairs into what
has been made into an apartment?
A: That’s correct.
Q: And you go
down, I guess a hallway beside the stairwell to get to
the back apartment?
A: That’s correct.
Q: And with the
exception of what you read in the affidavit, you don’t
know whose apartment the upstairs apartment and
downstairs apartment belong to, from your own personal
A: Based on
information that I received from the informant, I knew
who both of the individuals were, but I did not have any
evidence does not prove who was the leaseholder of the first
floor apartment that was searched. Although the officer who
obtained the search warrant testified that, "[b]ased on the
information in the [search warrant] affidavit, [he] was able to
ascertain it was the apartment of . . . Wyche’s
girlfriend," the trial judge ruled that this "was
hearsay evidence" and disregarded it.
The evidence is
undisputed, however, that when the officers arrived to search the
apartment, Wyche was sitting on a stool at the front door of the
building which contained the two apartments. Wyche was not inside
the apartment; he was in the foyer at the building’s entrance in
full view of the officers. The officers initially detained Wyche
in the foyer where he was sitting.
Other officers entered the
apartment on the first floor of the building and detained three
juveniles who were inside the apartment. During the search of the
apartment, one of the officers found a "rock" of
cocaine in plain view on the headboard of a double bed. The
officer testified that the room was "identified as
. . . Wyche’s bedroom." The apartment contained
only one bedroom.
Even if the room was
Wyche’s bedroom, no evidence proved when Wyche was last in the
bedroom. Wyche made no statements that indicated he was aware of
the presence of the cocaine in the bedroom. At trial, he
testified that "it’s my brother’s apartment. I was just
staying with him." Wyche further testified that he
"slept in the living room on the couch" and kept his
clothes in the bedroom. He denied knowing the cocaine was in the
The Supreme Court has
consistently ruled that an accused may not be convicted of
possessing narcotics found in a place that the accused occupies
where the evidence proved (1) that the accused was not present in
the place where the narcotics were found and (2) that other
persons had access to the premises. See, e.g., Drew
v. Commonwealth, 230 Va. 471, 338 S.E.2d 844 (1986); Powers
v. Commonwealth, 227 Va. 474, 316 S.E.2d 739 (1984); Garland
v. Commonwealth, 225 Va. 182, 300 S.E.2d 783 (1983); Clodfelter
v. Commonwealth, 218 Va. 619, 238 S.E.2d 820 (1977); Huvar
v. Commonwealth, 212 Va. 667, 187 S.E.2d 177 (1972); Crisman
v. Commonwealth, 197 Va. 17, 87 S.E.2d 796 (1955). See
also Burchette v. Commonwealth, 15 Va. App. 432,
425 S.E.2d 81 (1992).
Wyche was arrested outside
the apartment. In failing to prove beyond a reasonable doubt when
Wyche was in the bedroom, the evidence does not otherwise
establish that Wyche was aware of the presence and character of
the cocaine and that he intentionally and consciously possessed
it or exercised dominion and control over it. See Drew,
230 Va. at 473, 338 S.E.2d at 845; Powers, 227 Va. at 476,
316 S.E.2d at 740. Failing to prove that Wyche had exclusive
access to the bedroom and failing to account for all those who
may have had access to the location where the cocaine was found,
the Commonwealth cannot rely on an inference from these
circumstances that Wyche knew of the presence of the cocaine. See
Best v. Commonwealth, 222 Va. 387, 389, 282 S.E.2d 16, 17
(1981) (per curiam).
No presumption that Wyche
possessed the drugs arises from the officer’s testimony that the
drugs were found in the bedroom that someone identified to the
officer as Wyche’s bedroom. Code Sect. 18.2-250.
Furthermore, although the majority notes that opinions of this
Court have considered an accused’s possession of cash and pagers
as factors in judging whether an accused intended to distribute a
controlled substance found in his or her possession, that
proposition is irrelevant to the facts of this case. Wyche did
not actually possess the cocaine. More significant, however, the
trial judge ruled that the evidence was insufficient to prove
Wyche intended to distribute cocaine, and the judge convicted
Wyche of simple possession. The majority cites no authority, and
the Commonwealth produced no evidence, which suggests that
Wyche’s possession of cash and a pager tends to prove that he
possessed the cocaine found in the bedroom.
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).
"'[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
(1981). The evidence in this record creates only a mere suspicion
and does not exclude the reasonable hypothesis that someone other
than Wyche placed the cocaine in the room and possessed it.
For these reasons, I would
reverse the convictions and dismiss the prosecution.
 Pursuant to Code
Sect. 17.1-413, recodifying Code Sect. 17-116.010, this
opinion is not designated for publication.
 Best found $38
in one drawer, $126 in another, and an unidentified amount in a