PRESENT: All the Justices
LAKEITHA D. BRICKHOUSE
v. Record No. 080130 OPINION BY
JUSTICE S. BERNARD GOODWYN
COMMONWEALTH OF VIRGINIA October 31, 2008
FROM THE COURT OF APPEALS OF VIRGINIA
In this appeal, we consider whether the Court of Appeals
erred in affirming the conviction of Lakeitha D. Brickhouse
(“Brickhouse”) for possession with the intent to distribute
cocaine as a principal in the second degree.
Brickhouse was charged, in the Circuit Court of the City
of Portsmouth, with possession of cocaine with the intent to
distribute. Code § 18.2-248. After a bench trial, Brickhouse
was found guilty and sentenced to serve a term of five years
in prison, with three years and six months suspended. The
Court of Appeals affirmed the conviction in an unpublished
opinion. Brickhouse v. Commonwealth, Record No. 3128-06-1
(Dec. 18, 2007). Brickhouse appeals.
FACTS
At approximately 2:30 p.m. on May 10, 2006, Portsmouth
police officers executed a search warrant for a residence at
103 Lexington Drive in Portsmouth. The targets of the
warrant, Garnet Brown and Tywon Wilkins (“Wilkins”) were not
present; however, police found Brickhouse just outside of the
residence. Officer G.B. Smith (“Smith”) explained to
Brickhouse why the police were there and took her inside the
residence. Officer Smith testified that Brickhouse told him
that she knew why the police were there, whom they were there
for, and that “she wasn’t the one doing it.” Officer Smith
also testified that Brickhouse told him that she had, at some
point in time, seen Wilkins with bags of cocaine at the
residence.
While searching the residence, the officers discovered
thirteen bags of crack cocaine weighing approximately 45 grams
behind an air-conditioning vent in an upstairs bedroom closet.
The officers found personal papers belonging to both
Brickhouse and Wilkins and drug-packaging materials in that
bedroom.
Police also discovered a digital scale with cocaine
residue in the living room, a razor blade on top of a
microwave oven in the kitchen, and suspected heroin in another
bedroom. Additionally, drug-packaging material was found
throughout the residence. At trial, an expert witness
testified that the amount of cocaine, considered along with
the other items found at the residence, was inconsistent with
the personal use of the cocaine.
The only person in the residence at the time of the
search was a man, identified as a “user,” who was found in the
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upstairs bathroom, approximately fifteen feet from the closet
where the cocaine was found. Brickhouse testified that the
man in the bathroom was the eldest brother of Wilkins and
Brown and that he had entered the residence to use the
bathroom. Brickhouse further testified that he had been in
the bathroom for about an hour when the police arrived.
Brickhouse testified that she resided in the home along
with her aunt and uncle. Brickhouse stated that Wilkins, her
boyfriend, had a key to the residence and had been in the
residence at times without her. Brickhouse further testified
that she did not have any knowledge of drugs stored in or sold
from the residence. There was no evidence presented
concerning who owned, rented, or had legal possession of the
residence.
The officers did not find anything illegal on
Brickhouse’s person. Also, upon testing, her fingerprints
were not identified on the drugs or the drug paraphernalia.
The circuit court found the evidence sufficient to find
Brickhouse guilty of possession of cocaine with intent to
distribute as a principal in the second degree. Focusing on
the evidence found in plain view, such as the digital scale,
the razor blade, and the drug packaging material, the court
found that “[Brickhouse] knew these folks were using her house
essentially as a drug house, either to stash or to sell.” The
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Court of Appeals affirmed the conviction stating that “she
actually provided her home as a venue for the operation of a
drug distribution scheme.” Brickhouse, slip op. at 3.
ANALYSIS
Brickhouse alleges that the evidence presented at trial
was insufficient to find her guilty of possession with intent
to distribute cocaine. When a defendant challenges the
sufficiency of the evidence, we view the evidence and all
reasonable inferences in the light most favorable to the
Commonwealth. Jay v. Commonwealth, 275 Va. 510, 524, 659
S.E.2d 311, 319 (2008); Walton v. Commonwealth, 255 Va. 422,
425-26, 497 S.E.2d 869, 871 (1998). However, we will not
sustain a trial court’s judgment that is plainly wrong or
without evidence to support it. McMorris v. Commonwealth, 276
Va. 500, 504, 666 S.E.2d 348, 350 (2008); Jay, 275 Va. at 524,
659 S.E.2d at 319.
The Commonwealth has the burden of proving beyond a
reasonable doubt that the accused is guilty of the charged
crime. McMorris, 276 Va. at 504, 666 S.E.2d at 350.
“ ‘Suspicion of guilt, however strong, or even a probability
of guilt, is insufficient to support a conviction.’ ” Rogers
v. Commonwealth, 242 Va. 307, 317, 410 S.E.2d 621, 627 (1991)
(quoting Cheng v. Commonwealth, 240 Va. 26, 42, 393 S.E.2d
599, 608 (1990)).
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Brickhouse was found guilty of possession with the intent
to distribute cocaine as a principal in the second degree. To
prove that a defendant is guilty as a principal in the second
degree, the Commonwealth must establish that the defendant
procured, encouraged, countenanced or approved the criminal
act. Augustine v. Commonwealth, 226 Va. 120, 124, 306 S.E.2d
886, 888-89 (1983); Spradlin v. Commonwealth, 195 Va. 523,
526-27, 79 S.E.2d 443, 445 (1954). Evidence of a defendant’s
mere presence at a crime scene is insufficient to sustain a
conviction as a principal in the second degree. Hall v.
Commonwealth, 225 Va. 533, 536, 303 S.E.2d 903, 904 (1983);
Augustine, 226 Va. at 124, 306 S.E.2d at 888; Underwood v.
Commonwealth, 218 Va. 1045, 1048, 243 S.E.2d 231, 233 (1978).
“The Commonwealth must prove that the defendant consented to
the felonious purpose and the defendant contributed to its
execution.” McMorris, 276 Va. at 505, 666 S.E.2d at 350.
There must be evidence that Brickhouse committed an overt act
knowingly in furtherance of the commission of the crime,
possession with the intent to distribute cocaine, or that she
shared in the criminal intent of the principal committing the
crime. See id. at 505, 666 S.E.2d at 351.
The Commonwealth does not contend that Brickhouse shared
in the criminal intent of the principal in the first degree,
the unknown person who placed the cocaine in the vent.
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Rather, Brickhouse’s conviction is based upon the finding that
she committed an overt act in furtherance of the crime by
permitting the residence to be used as a haven for the
distribution of cocaine or the storage of cocaine intended for
distribution.
The status of the accused as a principal in the second
degree may be established by any combination of circumstantial
evidence or direct evidence. Foster v. Commonwealth, 179 Va.
96, 100, 18 S.E.2d 314, 316 (1942). Here, there is no direct
evidence that Brickhouse gave permission for the drugs to be
stored in the air conditioning vent in the bedroom. The
circuit court’s holding, therefore, is based upon evidence
that is wholly circumstantial. Consequently, “ ‘all necessary
circumstances proved must be consistent with guilt and
inconsistent with innocence and exclude every reasonable
hypothesis of innocence.’ ” Rogers, 242 Va. at 317, 410
S.E.2d at 627 (quoting Inge v. Commonwealth, 217 Va. 360, 366,
228 S.E.2d 563, 567 (1976)).
Viewed in the light most favorable to the Commonwealth,
the evidence shows that the home in which Brickhouse resided
contained drug paraphernalia in plain view, such as a digital
scale with cocaine residue in the living room, a razor blade
on the microwave oven in the kitchen, and drug-packaging
materials throughout the residence. The evidence demonstrates
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that Brickhouse knew why the police came to the residence, who
they were looking for and why. Such evidence indicates that
Brickhouse was aware of the drug activity; however, the
Commonwealth must prove more than Brickhouse’s knowledge of
the crime. See Hall, 225 Va. at 536, 303 S.E.2d at 904;
Augustine, 226 Va. at 124, 306 S.E.2d at 888; Underwood, 218
Va. at 1048, 243 S.E.2d at 233.
Brickhouse stated that she lived at the residence with
her aunt and uncle. The Commonwealth admits that no evidence
was presented concerning who had legal possession of the
residence in which the drugs were found. Given that the
principal in the first degree is unknown, and it was not
proven that Brickhouse had exclusive control and authority
over the residence where the drugs were found, the
circumstantial evidence presented by the Commonwealth failed
to exclude all reasonable inferences inconsistent with
Brickhouse’s guilt as a principal in the second degree. Even
if Brickhouse knew the drugs were being stored at the
residence, there is insufficient evidence to conclude that she
is the person who permitted it, as opposed to another
resident. Thus, there is insufficient evidence to support the
conviction of Brickhouse of possession with the intent to
distribute cocaine as a principal in the second degree.
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Accordingly, we will reverse the judgment of the Court of
Appeals affirming Brickhouse’s conviction of possession of
cocaine with intent to distribute, vacate Brickhouse’s
conviction, and dismiss the indictment against her.
Reversed, vacated, and dismissed.
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