Opinion
Record No. 0982-91-2
February 2, 1993
FROM THE CIRCUIT COURT OF THE CITY OF PETERSBURG OLIVER A. POLLARD, JR., JUDGE
Paul C. Bland, for appellant.
Janet F. Rosser, Assistant Attorney General (Mary Sue Terry, Attorney General, on brief), for appellee.
Present: Judges Benton, Elder, and Willis
Argued at Richmond, Virginia
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Andrew Turner was convicted for possession of cocaine in violation of Code § 18.2-250. The sole question on appeal is whether the evidence is sufficient to support a finding that Turner knowingly and intentionally possessed cocaine. We reverse the conviction because the record contains insufficient evidence.
When reviewing the evidence on appeal for sufficiency to support the conviction, we view the evidence in the light most favorable to the Commonwealth. Boothe v. Commonwealth, 4 Va. App. 484, 492, 358 S.E.2d 740, 445 (1987). Viewed in this light, the evidence proved that police officer David Hamilton saw Turner and John Jones standing together and talking at 4:16 p.m. in the 300 block of Harrison Street in the City of Petersburg. Jones was holding a brown paper bag. When Jones saw the police car approach, he handed the bag to Turner and ran. Turner, while holding the bag, walked north on Harrison Street. When he reached the intersection of Harrison Street and Maple Lane, he dropped the bag beside a telephone pole. After chasing and apprehending Jones, Hamilton returned to the intersection with Jones and found five dollars on Jones' person.
Police officer James White testified that he also saw Turner and Jones standing at the intersection of Harrison Street and Maple Lane. He saw Jones give something to Turner and then run. After Turner walked to the northwest corner of Harrison and Maple, White confronted Turner and ordered him to place his hands on the police vehicle.
White testified that as Turner approached the police vehicle he dropped nineteen dollars onto the street. When White searched Turner, he found $100 in Turner's right front pocket. At the southwest corner of the intersection, White picked up a brown paper bag that "contained three glass smoking stems with residue, a smaller paper bag containing a yellow white powder substance, a test tube with residue, a Magnum beer cap with residue, four syringes, a water Choreboy copper filter, and one radio antenna." Test results established that the residue in the three glass tubes was cocaine. The yellow white powder in the paper bag was not a controlled substance. None of the other items in the larger bag were tested.
White testified that after he gave Turner Miranda warnings, Turner stated "that the guy just asked him to hold the bag." Turner also informed White that he was employed, and he gave White "a check stub to prove that he was working." White further testified that he recovered from the grass near the place where Turner was standing a plastic bag containing a "white, rock-like substance [of] cocaine." White also testified, however, that he did not see Turner in possession of the plastic bag. In addition, White testified that it was not unusual to find contraband in the area where he found the plastic bag.
The evidence does not develop the context in which the issue of Turner's employment arose. However, the check stub in the record indicates that Turner received $262 for the pay period July 16 to July 31. Presumably, Turner sought to establish that the money he had on August 16 was the proceeds from the cashing of his check, which was also dated August 16.
On this evidence, Turner was convicted of possession of cocaine, fined $500, sentenced to "five years in the penitentiary, suspended on the condition [that he] complete a nine month jail sentence, pay the cost of court, keep the peace and obey the law for a period of 10 years."
The prosecution had the burden of proving beyond a reasonable doubt that Turner was aware of the presence and nature of the cocaine in the brown bag when Turner received the bag from Jones and that Turner intentionally and consciously possessed the cocaine. Glenn v. Commonwealth, 10 Va. App. 150, 154, 390 S.E.2d 505, 507 (1990).
To establish 'possession' in a legal sense it is not sufficient to simply show actual or constructive possession of the drug by the defendant. The Commonwealth must also establish that the defendant intentionally and consciously possessed it with knowledge of its nature and character.
Buono v. Commonwealth, 213 Va. 475, 476, 193 S.E.2d 798, 799 (1973) (per curiam). "[W]here . . . the element of knowledge [is] based on circumstantial evidence, 'all necessary circumstances proved must be consistent with guilt and inconsistent with innocence and exclude every reasonable hypothesis of innocence.'" Hairston v. Commonwealth, 5 Va. App. 183, 186, 360 S.E.2d 893, 895 (1987) (quoting Garland v. Commonwealth, 225 Va. 182, 184, 300 S.E.2d 783, 784 (1983)).
The Commonwealth argues that circumstantial evidence proved that Turner knew the contents of the brown bag. We disagree. The evidence showed that initially Jones was holding the brown bag. After seeing the police vehicles, Jones handed the bag to Turner and Jones ran. Turner walked away and dropped the bag when White approached him. The Commonwealth argues that Turner must have known the contents of the bag because, "if, indeed, Turner did not know what the bag contained, and he had become suspicious, he would have looked inside it." The Commonwealth also asserts that "[h]ad Turner not known of the presence of drugs in the bag, he would have had no reason to get rid of it." This reasoning merely suggests suspicious circumstances by speculating what Turner should have done if he was innocent. However, "[s]uspicious circumstances . . . are insufficient to support a conviction" for the possession of drugs. Glenn, 10 Va. App. at 154, 390 S.E.2d at 507. The guilt of an accused may not be inferred merely because the circumstances are consistent with guilt. Bishop v. Commonwealth, 227 Va. 164, 170, 313 S.E.2d 390, 393 (1984).
No evidence proved that Turner looked into the brown bag or had the bag before Jones handed it to him. In contrast to the Commonwealth's assertion, it is equally probable that Turner's act of accepting the bag was a passive response to Jones' act in handing him the bag. Thus, the evidence is consistent with the hypothesis that the bag belonged to Jones and that Jones "just asked [Turner] to hold the bag" to deflect attention to Turner.
Moreover, Turner's failure immediately to discard the brown bag does not prove knowledge. The officer testified that Jones saw the police vehicle, but no evidence proved that Turner saw the police vehicle or was in a position to see it. If Turner had no knowledge of the contents of the bag, he had no reason to discard it immediately. Furthermore, if he had immediately discarded the bag, the Commonwealth undoubtedly would have argued that Turner must have been aware of its contents and feared apprehension.
No evidence in the record proved that Turner ever possessed the plastic bag of cocaine found in the grass behind him. The police officer's testimony that it was not unusual to find contraband in the area where he found the plastic bag further supports the hypothesis that the bag had no connection to Turner. In summary, nothing in the record rebuts the hypothesis that Turner did not knowingly and intentionally possess the contents of the brown bag. The Commonwealth has, thus, not proven that all the circumstances are "inconsistent with innocence and exclude every reasonable hypothesis of innocence." Inge v. Commonwealth, 217 Va. 360, 366, 228 S.E.2d 563, 567 (1976).
Reversed and dismissed.
I respectfully dissent. I would affirm the judgment of the trial court.
On appeal, we review the evidence in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom. The judgment of a trial court sitting without a jury is entitled to the same weight as a jury verdict and will not be set aside unless it appears from the evidence that the judgment is plainly wrong or without evidence to support it.
Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1988) (citing Code § 8.01-680). Appellant admits that he had possession of the cocaine for a brief period of time. However, "[t]o establish 'possession' in a legal sense it is not sufficient to simply show actual or constructive possession of the drug by the defendant. The Commonwealth must also establish that the defendant intentionally and consciously possessed it with knowledge of its nature and character." Buono v. Commonwealth, 213 Va. 475, 476, 193 S.E.2d 798, 798-99 (1973) (citing Ritter v. Commonwealth, 210 Va. 732, 741, 173 S.E.2d 799, 805 (1970)). Appellant denied that he had such knowledge of the contents of the bag, and the Commonwealth did not provide any direct evidence to contradict his assertion. Case law makes clear, however, that "[k]nowledge of the presence and character of the controlled substance . . . may be shown by evidence of the acts, statements or conduct of the accused." Glenn v. Commonwealth, 10 Va. App. 150, 154, 390 S.E.2d 505, 507 (1990) (citing Eckhart v. Commonwealth, 222 Va. 447, 450, 281 S.E.2d 853, 855 (1981)). In addition, the court was entitled to find that appellant's testimony lacked credibility. Black v. Commonwealth, 222 Va. 838, 842, 284 S.E.2d 608, 610 (1981). If the trial court determines that the testimony lacks credibility, it is entitled to infer that [the defendant is lying] to conceal his guilt." Speight v. Commonwealth, 4 Va. App. 83, 88, 354 S.E.2d 95, 98 (1987) (citing Carter v. Commonwealth, 223 Va. 528, 532, 290 S.E.2d 865, 867 (1982)).
In this case, the trial court was entitled to conclude that appellant's denial of knowledge of the contents of the bag was incredible. Given appellant's conduct in accepting the bag from his companion, who had fled the scene upon spotting a police car, the court also was entitled to conclude that he was aware of the contents of the bag. As the Commonwealth contends, the trial court was entitled to conclude that, had appellant truly been unaware of and suspicious about the contents of the bag, he would have looked inside instead of carrying the bag with him for a distance as he walked down the street.
On the evidence introduced at trial, I do not believe that the judgment of the trial court is plainly wrong or without evidence to support it. Accordingly, I would affirm.