Cordon v. Com.

Present: Hassell, C.J., Koontz, Kinser, Lemons, Goodwyn, and
Millette, JJ., and Lacy, S.J.

HUGH LINCOLN CORDON, JR.

v. Record No. 092592 OPINION BY SENIOR JUSTICE
ELIZABETH B. LACY
COMMONWEALTH OF VIRGINIA NOVEMBER 4, 2010

FROM THE COURT OF APPEALS OF VIRGINIA

In this appeal, Hugh Lincoln Cordon, Jr., asks us to

reverse the judgment of the Court of Appeals affirming his

conviction for possession of cocaine, arguing that the evidence

was insufficient to support his conviction. Because we conclude

that the evidence was insufficient to establish constructive

possession of cocaine, we will reverse the judgment of the Court

of Appeals.

FACTS

On November 20, 2007, Detective John Baer of the Hampton

Police Department executed a search warrant at a house located

at 169 Finley Square in the City of Hampton. Cordon was not at

the house, but Donald Whitmeyer, Cordon’s uncle and owner of the

house, was present during the execution of the warrant. Baer

found a cooler in one of the bedrooms containing two bags of

suspected powder cocaine, numerous baggies, and drug

paraphernalia inside. A Certificate of Analysis subsequently

showed that one of the bags contained 5.001 grams of powder

cocaine.
 While in the bedroom Baer also found “some checks and some

papers and stuff” containing Cordon’s name. In a nightstand in

the bedroom, Baer found a box of bullets, a digital scale, a bag

of white powdery substance, a knife, glass “test-tube type

things,” a wooden crusher, a torch, and a marijuana pipe. The

nightstand drawer also contained Baer’s business card.

Baer had given Cordon a business card two days prior to

executing the search warrant while investigating a burglary at

the house that occurred the previous September. In the course

of the burglary investigation, Cordon told Baer and another

investigating officer that his uncle owned the house, but was

away and Cordon was living at the house. Cordon showed the

officers “his” bedroom but told him that nothing was missing.

Cordon later told Baer that a lockbox was taken from underneath

“his bed.” In his handwritten statement regarding the burglary,

Cordon listed an address in Newport News as his residence. The

bedroom Cordon referred to as “his” during the burglary

investigation was the bedroom containing the cooler and

nightstand searched by Baer when executing the search warrant.

On November 27, 2007, Baer interviewed Cordon and told him

that he found drugs and drug paraphernalia and Baer’s card in

the bedroom at the Finley Square house that Cordon had

previously described as “his” bedroom. Cordon denied living at

the house and terminated the conversation.

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 Cordon was indicted for possession of cocaine in violation

of Code § 18.2-250 and convicted by the Circuit Court of the

City of Hampton. He was sentenced to three years imprisonment

with two years and six months suspended. The Court of Appeals

affirmed his conviction. Cordon v. Commonwealth, Record No.

1724-08-1 (Dec. 1, 2009)(unpublished). Cordon filed a timely

appeal with this Court arguing that the evidence was

insufficient to establish that he possessed the cocaine found in

the cooler of a bedroom in the Finley Square house.

DISCUSSION

To support a conviction for possession of cocaine in this

case, the Commonwealth was required to establish that Cordon

constructively possessed the cocaine. Constructive possession

of cocaine requires a showing that the presence and character of

the substance was known to the defendant and that the substance

was subject to his dominion and control. Lane v. Commonwealth,

223 Va. 713, 716, 292 S.E.2d 358, 360 (1982). Thus, the

Commonwealth was required to produce evidence demonstrating

beyond a reasonable doubt that Cordon knew that cocaine was in

the cooler in the bedroom and that the cooler was subject to his

dominion and control. Furthermore, to establish constructive

possession of cocaine through circumstantial evidence, all

necessary circumstances proved must be consistent with guilt and

inconsistent with innocence and exclude every reasonable

3
hypothesis of innocence. Rogers v. Commonwealth, 242 Va. 307,

317, 410 S.E.2d 621, 627 (1991) (quoting Inge v. Commonwealth,

217 Va. 360, 366, 228 S.E.2d 563, 567 (1976)). Finally, under

well-established principles, when considering the sufficiency of

the evidence to support a conviction, we review the evidence in

the light most favorable to the Commonwealth. Maxwell v.

Commonwealth, 275 Va. 437, 442, 657 S.E.2d 499, 502 (2008). The

judgment of conviction will be reversed only when the ruling is

plainly wrong or without evidence to support it. Id.

The Commonwealth, relying on Rawls v. Commonwealth, 272 Va.

334, 634 S.E.2d 697 (2006), asserts that Cordon’s repeated

references to the bedroom in which the cocaine was found as

“his” bedroom and subsequent denial that he was living at the

house when the police told him that drugs were found in the

room, allowed the trier of fact to conclude that Cordon was

lying to conceal his guilt and that this conduct tended to show

Cordon’s knowledge of the presence and character of the cocaine.

The Commonwealth argues that such conduct, along with Cordon’s

personal effects and Baer’s business card found in the room, was

sufficient to support a finding that Cordon knowingly possessed

cocaine in that bedroom. We disagree.

This Court has recognized that if a defendant’s denial of

circumstances relating to an illegal act is inconsistent with

previous statements or facts, it is fair to infer that such

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denial was for the purposes of concealing guilt. Covil v.

Commonwealth, 268 Va. 692, 696, 604 S.E.2d 79, 82 (2004) (“false

or evasive account is a circumstance, similar to flight from a

crime scene, that a fact-finder may properly consider as

evidence of guilty knowledge”). In cases involving possession

of contraband, such an inference qualifies as evidence that

tends to show that the defendant was aware of the contraband and

that it was subject to his dominion and control. Rawls, 272 Va.

at 349-50, 634 S.E.2d at 705; Lane, 223 Va. at 716-17, 292

S.E.2d at 360. For example, in Rawls the defendant was in a

bedroom with the door closed when the police arrived to arrest

him for a probation violation. 272 Va. at 341, 634 S.E.2d at

700. When Rawls opened the door, he appeared to have been

sleeping. Id. When told of the warrant for his arrest, Rawls

“[i]mmediately” denied that the bedroom was his. Id. The

police searched the room and found a loaded handgun between the

mattress and box spring. Id. at 342, 634 S.E.2d at 700. The

facts also showed that articles of clothing found in the room

belonged to Rawls, Rawls apparently had been sleeping on the bed

where the handgun was found when the police arrived, he was

alone in the bedroom with the handgun, and other residents of

the house testified that the bedroom was Rawls’ bedroom. Id. at

341-42, 634 S.E.2d at 700. In reciting that Rawls’ denial of

ownership of the room could support a conclusion that Rawls was

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lying to conceal his guilt, the Court observed that this

conclusion was “[b]ased on the substantial evidence that the

room in fact did belong to Rawls.” Id. at 350, 634 S.E.2d at

705. Ultimately, this Court concluded that the Commonwealth met

its burden of proof “by demonstrating Rawls’ presence in his own

bedroom and the presence of the firearm at the time, along with

the other circumstances suggesting his possession of the

firearm.” Id. at 350-51, 634 S.E.2d at 705.

In Lane, the defendant owned and occupied the dwelling in

which the contraband was found. 223 Va. at 715, 292 S.E.2d at

359. Lane was present during the execution of the search

warrant and “became ‘fidgetive’” when an officer approached the

chair in which she was sitting. Id. at 716, 292 S.E.2d at 359.

When a large amount of methaqualone pills were found in a white

plastic bag behind the chair, Lane denied any knowledge of the

contraband. Id. at 716, 292 S.E.2d at 360. Again, the

inference of guilt based on the defendant’s denial and its

tendency to show knowledge and control of the contraband was

accompanied by significant evidence connecting the defendant to

the contraband. Id.

In this case, Cordon was not in the house or the bedroom

when the cooler containing the cocaine was discovered. There

was no other physical evidence linking Cordon to the cooler or

the contraband. The record showed that two days had passed

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between the time Cordon was known to be at the Finley Square

house and the seizure of the cooler containing cocaine. While

he referred to the bedroom as “his” and stated that he was

staying there while his uncle was away at the time of the

September burglary, Cordon listed his address as a location in

Newport News. There was no evidence of ownership of the cooler,

a very portable item, and no evidence placed Cordon at the house

at any time between the day he received Baer’s business card and

the day the search warrant was executed. Although Cordon, like

Rawls, denied that he “lived” at the Finley Square house when

informed that cocaine was found in a cooler in “his” bedroom,

assuming his denial gave rise to an inference that he was lying

to conceal guilt and thus tended to show his knowledge and

control of the cocaine, that inference along with the remaining

evidence falls far short of the evidence considered sufficient

in Rawls or Lane to support the convictions in those cases.

While the circumstantial evidence in this case may be sufficient

to raise a suspicion of guilt, it cannot support a conclusion

beyond a reasonable doubt, by a rational trier of fact, that

Cordon knew that cocaine was in the cooler in the bedroom and

that it was subject to his dominion and control. Accordingly,

we will reverse the judgment of the Court of Appeals and vacate

the conviction.

Reversed and final judgment.

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JUSTICE KINSER, with whom JUSTICE LEMONS and JUSTICE MILLETTE
join, dissenting.

In reversing the judgment of the Court of Appeals and

vacating Cordon's conviction for possession of cocaine, the

majority holds that "no 'rational trier of fact could have found

. . . beyond a reasonable doubt' " that Cordon " 'was aware of

both the presence and character of the substance and that it was

subject to his dominion and control.' " Maxwell v.

Commonwealth, 275 Va. 437, 442-43, 657 S.E.2d 499, 502-03 (2008)

(quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979) and Drew

v. Commonwealth, 230 Va. 471, 473, 338 S.E.2d 844, 845 (1986),

respectively). Upon viewing the evidence in the light most

favorable to the Commonwealth, I am persuaded that the evidence

was not insufficient as a matter of law to establish Cordon's

guilt of the charged offense. Thus, I respectfully dissent.

When the sufficiency of the evidence is challenged on

appeal, the issue is "'whether, after viewing the evidence in

the light most favorable to the prosecution, any rational trier

of fact could have found the essential elements of the crime

beyond a reasonable doubt.' " Maxwell, 275 Va. at 442, 657

S.E.2d at 502 (quoting Jackson, 443 U.S. at 319). This inquiry,

however, "does not require a court to 'ask itself whether it

believes that the evidence at the trial established guilt beyond

a reasonable doubt.' " Jackson, 443 U.S. at 318-19 (quoting

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Woodby v. INS, 385 U.S. 276, 282 (1966)). On the contrary,

" '[i]f there is evidence to support the convictions, the

reviewing court is not permitted to substitute its own judgment,

even if its opinion might differ from the conclusions reached by

the finder of fact at the trial.' " Clark v. Commonwealth, 279

Va. 636, 641, 691 S.E.2d 786, 788 (2010) (quoting Commonwealth

v. Jenkins, 255 Va. 516, 520, 499 S.E.2d 263, 265 (1998)).

When as here, a defendant waives the right to a jury trial

and is tried in a bench trial, the trial court's "factual

findings are entitled to the same weight as that accorded a jury

verdict and will not be disturbed on appeal unless plainly wrong

or without evidence to support them." Schneider v.

Commonwealth, 230 Va. 379, 382, 337 S.E.2d 735, 736 (1985).

"This is so because the credibility of witnesses and the weight

accorded their testimony are matters solely for the fact[-]

finder who has the opportunity of seeing and hearing the

witnesses." Id. at 382, 337 S.E.2d at 736-37; accord Young v.

Commonwealth, 275 Va. 587, 590, 659 S.E.2d 308, 310 (2008) ("On

appeal, great deference is given to the fact[-]finder who,

having seen and heard the witnesses, assesses their credibility

and weighs their testimony."). And, as this Court reiterates

today, though not here, "[t]hat deference applies not only to

findings of fact, but also to any reasonable and justified

inferences the fact-finder may have drawn from the facts

9
proved." Sullivan v. Commonwealth, 280 Va. ___, ___, ___ S.E.2d

___, ___ (2010) (this day decided).

As the majority notes, to establish Cordon's guilt of

cocaine possession, the Commonwealth had to prove "that the

presence and character of the substance was known to the

defendant and subject to his dominion and control." (Citing

Lane v. Commonwealth, 223 Va. 713, 716, 292 S.E.2d 358, 360

(1982).) Knowledge "may be shown by evidence of the acts,

statements or conduct of the accused." Young, 275 Va. at 591,

659 S.E.2d at 310. "While the Commonwealth does not meet its

burden of proof simply by showing the defendant's proximity to

the [drugs] or ownership or occupancy of the premises where the

[drugs are] found, these are circumstances probative of

possession and may be considered as factors in determining

whether the defendant possessed the [drugs]." Rawls v.

Commonwealth, 272 Va. 334, 350, 634 S.E.2d 697, 705 (2006).

The majority further states that when the Commonwealth

relies on circumstantial evidence to carry its burden of proof,

the circumstances proved "must be consistent with guilt and

inconsistent with innocence and exclude every reasonable

hypothesis of innocence." (Citing Rogers v. Commonwealth, 242

Va. 307, 317, 410 S.E.2d 621, 627 (1991).) "The statement that

circumstantial evidence must exclude every reasonable theory of

innocence is simply another way of stating that the Commonwealth

10
has the burden of proof beyond a reasonable doubt." Hudson v.

Commonwealth, 265 Va. 505, 513, 578 S.E.2d 781, 785 (2003)

(citing Cox v. Commonwealth, 140 Va. 513, 517, 125 S.E. 139, 141

(1924)). Thus, in reviewing the sufficiency of the

circumstantial evidence in this appeal, the issue "is not

whether 'there is some evidence to support' [Cordon's]

hypotheses" of innocence. Id. Instead, "[t]he issue is whether

a reasonable [trier of fact], upon consideration of all the

evidence, could have rejected [Cordon's] theories in his defense

and found him guilty of [cocaine possession] beyond a reasonable

doubt." Id.

In this case, the trier of fact had the following evidence

to consider. When seeking the assistance of an officer of the

"Hampton Police Division" regarding a home invasion that

occurred at 169 Finley Square on September 29, 2007, Cordon

stated to the responding police officer that the house was his

"home," where he was residing "at the time." Cordon had also

told the responding officer that the room in which the cocaine

was subsequently found "was his room." Later, on November 14,

2007, during a phone interview with Detective John Baer, Cordon

again referred to the residence as his "home," and reported that

"a lock box from underneath his bed had been stolen." (Emphasis

added.) And again, on November 18, 2007, Cordon reiterated to

Detective Baer, who was present at the residence, that "a

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lockbox from underneath his bed" had been stolen, and "advised

that [the intruders had] pried his bedroom door open," directing

the detective to the room in which the cocaine was found two

days later. Before leaving the residence that day, Detective

Baer gave Cordon his business card.

As the majority states, the search of the bedroom claimed

by Cordon as "his room" revealed cocaine, "checks and some

papers and stuff with [Cordon's] name on it," and numerous items

of drug paraphernalia. The drug paraphernalia was found in a

drawer of a nightstand abutting Cordon's bed. In the same

drawer, Detective Baer's business card was discovered.

Detective Baer testified that "[w]hen [he] initially opened the

[nightstand] door, [his] business card was sitting right inside

the drawer next to all these items" of drug paraphernalia. In a

subsequent interview with Cordon, only after Detective Baer

"advised [Cordon] of what items [had been] located in [Cordon's]

bedroom" did Cordon "den[y] living at 169 Finley Square."

According to Detective Baer, Cordon ended the interview when

Detective Baer told him that the business card was found in the

nightstand drawer with the drug paraphernalia.

Upon viewing the evidence "in the light most favorable to

the Commonwealth, the prevailing party at trial," Rawls, 272 Va.

at 349, 634 S.E.2d at 704, and deferring to the trial court's

factual findings and all reasonable inferences drawn from those

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facts, Young, 275 Va. at 590, 659 S.E.2d at 310, all of which an

appellate court must do, I am unable to say that no rational

trier of fact could have concluded Cordon possessed the cocaine

recovered from "his room." Moreover, Cordon's denial that he

lived at 169 Finley Square after being confronted with the items

seized during the search of "his room" bolsters the inference

that Cordon " 'intentionally and consciously possessed [the

cocaine] with knowledge of its nature and character.' " Young,

275 Va. at 591, 659 S.E.2d at 310 (quoting Burton v.

Commonwealth, 215 Va. 711, 713, 213 S.E.2d 757, 759 (1975)). As

the majority acknowledges, "if a defendant's denial of

circumstances relating to an illegal act is inconsistent with

previous statements or facts, it is fair to infer that such

denial was for the purposes of concealing guilt."

The majority nonetheless concludes, even "assuming

[Cordon's] denial gave rise to an inference that he was lying to

conceal . . . his knowledge and control of the cocaine, that

inference along with the remaining evidence falls far short of

the evidence considered sufficient in Rawls or Lane." Presuming

those cases set the evidentiary floor necessary to sustain a

conviction for possession of an illegal drug, the majority's

efforts to show that the evidence here "falls far short" of that

in Rawls, 272 Va. 334, 634 S.E.2d 697 and Lane, 223 Va. 713, 292

S.E.2d 358, fails.

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 In discussing both cases, the majority states that the

"inference of guilt based on the [respective] defendant's denial

and its tendency to show knowledge and control of the contraband

was accompanied by significant evidence connecting [that]

defendant to the contraband." The "significant evidence" in

Lane was the defendant's ownership and occupancy of the house

where the drugs were found, coupled with her occupancy of a

chair behind which the illegal substances were discovered, and

the fact that she became "nervous and volunteered . . . that

there was nothing behind the chair." 223 Va. at 716, 292 S.E.2d

at 360. In Rawls, the "significant evidence" consisted of the

following facts: the defendant was sleeping alone in a room with

the door closed when the police arrived to serve a warrant for

the defendant's arrest; a loaded handgun was found between the

mattress and box spring; the defendant's roommates testified

that the bedroom belonged to him; and the defendant's clothes

were found in the room. Rawls, 272 Va. at 341-42, 350, 634

S.E.2d at 700, 705.

The evidence in each case also included a denial by the

respective defendant. In Lane, the defendant denied any

knowledge of the illegal drugs when confronted with them. 223

Va. at 716, 292 S.E.2d at 360. Similarly, in Rawls, the

defendant "disclaimed ownership" of the bedroom when the police

14
told him they had an arrest warrant for a probation violation.

272 Va. at 350, 634 S.E.2d at 705.

Contrary to the majority's conclusion, the same type of

evidence is present here. Cordon reported a burglary of the

house where he acknowledged he was residing; in the process, he

claimed that nothing was taken from "his room," only to later

assert that an item was taken from "underneath his bed"; he

again claimed the bedroom as his own when interviewed by

Detective Baer at the residence two days prior to execution of

the search warrant; and the search of the bedroom revealed

papers bearing Cordon's name, and, in the nightstand, Detective

Baer's business card alongside drug paraphernalia. These facts

constitute "substantial evidence that the room in fact did

belong to" Cordon. Cf. Rawls, 272 Va. at 350, 634 S.E.2d at

705. And, the cocaine was located inside a cooler that was

readily observable to anyone entering the bedroom; the cocaine

as well as the drug paraphernalia were located a short distance

from where Cordon admitted to sleeping, the paraphernalia being

found in a drawer with the business card Detective Baer had

given Cordon two days prior to the search. Finally, Cordon,

like the defendants in Lane and Rawls, evinced "guilty

knowledge" by his denial that he resided at 169 Finley Square

when confronted with the items seized from "his room" during the

search.

15
 Thus, like the trier of fact in Rawls, the trial court here

reasonably could have inferred from Cordon's occupancy of the

bedroom where the contraband was found that Cordon had "dominion

and control" over the cocaine. 272 Va. at 350, 634 S.E.2d at

705. Further, the trial court reasonably could have concluded

from Cordon's denial of occupancy that he "was lying to conceal

his guilt," thereby demonstrating that he was aware of the

cocaine's "presence and character." Id. Thus, I conclude that

the evidence was sufficient to sustain the trial court's

conclusion that Cordon "possessed" the cocaine.

Although Cordon was not present when the search warrant was

executed, that factor alone does not mean the trial court could

not reject Cordon's theory of defense. Certainly, one

hypothesis of innocence is that another individual placed the

cocaine in Cordon's bedroom without his knowledge. But the same

possibility existed in Rawls, notwithstanding Rawls' presence in

the bedroom where the firearm was found. Rawls could not have

seen the firearm concealed underneath the mattress merely by

being present in the bedroom. Acknowledging that evidence was

adduced that "other individuals had unrestricted access to the

bedroom" where the firearm was found in Rawls, this Court

nonetheless concluded that there was sufficient evidence of

possession because "such access is only a single factor to be

considered among all of the circumstances." Id. As in Rawls,

16
the Commonwealth was not required to prove that Cordon had

exclusive access to the bedroom.

For these reasons, I respectfully dissent. I would affirm

the judgment of the Court of Appeals.

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