COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judge Annunziata and
Senior Judge Coleman
Argued at Richmond, Virginia
CHARLES ANTHONY BIRDSONG
OPINION BY
v. Record No. 0516-01-2 CHIEF JUDGE JOHANNA L. FITZPATRICK
MARCH 12, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF HENRICO COUNTY
George F. Tidey, Judge
David M. Gammino for appellant.
Stephen R. McCullough, Assistant Attorney
General (Randolph A. Beales, Attorney
General, on brief), for appellee.
Charles Anthony Birdsong (appellant) was convicted in a
bench trial of possession of cocaine with intent to distribute,
in violation of Code § 18.2-248, and possession of a firearm
while in possession of cocaine, in violation of
Code § 18.2-308.4. On appeal, he contends that the evidence was
insufficient to prove he constructively possessed the drugs and
gun which were found in a locked safe. For the following
reasons, we affirm the judgment of the trial court.
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 it all reasonable inferences
fairly deducible therefrom. See Juares v. Commonwealth, 26 Va.
App. 154, 156, 493 S.E.2d 677, 678 (1997).
So viewed, the evidence established that on April 6, 2000,
at approximately 10:15 p.m., police officer Kevin Harver
(Harver) executed a search warrant at 323 Winston Street in
Henrico County. Appellant was not present during the search.
His mother, who lived at the home, arrived during the execution
of the search warrant but remained outside. The townhouse had
two stories with two bedrooms upstairs, the front "female"
bedroom and the rear "male" bedroom.
The male bedroom contained two beds and a closet. A
dresser and a locked safe were located inside the closet.
Papers belonging to appellant were found on top of the dresser,
in the dresser drawers, and scattered on the floor of the closet
by the dresser. All of the papers were addressed to Charles
Birdsong, including a copy of a March 1, 2000 misdemeanor
warrant, a cognizance bond receipt, a capias, and an Alltel
phone bill. Adult male clothes were also found in the room. A
handgun, ammunition, a baggie containing 27.5 grams of cocaine,
and a sock stuffed with $2,900 out of a total $6,604.19 in cash
were found inside the locked safe. The sock tested positive for
DNA that matched the DNA profile of appellant. The DNA
certificate of analysis indicated that the probability of
randomly selecting an unrelated individual with a matching DNA
profile was one in 88 million in the black population.
- 2 -
At trial, appellant's mother testified that neither the
safe nor its contents belonged to her and that she did not know
the combination to the safe. She stated that appellant had a
key to the townhouse and used the rear bedroom. Her
eleven-year-old son, Gregory, slept in the front room with her.
Her third son, Rondell, who previously had been arrested for a
drug offense, visited occasionally, but kept no property in the
townhouse. She acknowledged that she had been working twelve
hour days in April and did not know who was at the townhouse
while she was at work.
Delores White (White), a neighbor who lived next door to
323 Winston Street, testified that during the spring of 2000
"[appellant] was there just about every day," and because of
that, she asked him to "watch out for [her] apartment." During
this time, she saw appellant leave the townhouse with "baggies
in his hands." White also stated that on April 6, 2000, the day
the search warrant was executed, at approximately 3:00 p.m. she
saw appellant use a key to let himself and a female friend into
the townhouse. White also testified that she knew appellant's
brother Gregory, but she did not know Rondell.
II. STANDARD OF REVIEW
In reviewing the sufficiency of the evidence, "the judgment
of the trial court sitting without a jury is entitled to the
same weight as a jury verdict." Saunders v. Commonwealth, 242
- 3 -
Va. 107, 113, 406 S.E.2d 39, 42, cert. denied, 502 U.S. 944
(1991).
"[T]he trial court's judgment will not be set aside unless
plainly wrong or without evidence to support it." Hunley v.
Commonwealth, 30 Va. App. 556, 559, 518 S.E.2d 347, 349 (1999).
"The credibility of a witness and the inferences to be drawn
from proven facts are matters solely for the fact finder's
determination." Marable v. Commonwealth, 27 Va. App. 505, 509,
500 S.E.2d 233, 235 (1998) (citation omitted).
III. CONSTRUCTIVE POSSESSION
Appellant contends the trial court erred in finding the
evidence sufficient to prove that he constructively possessed
the gun and drugs found in the locked safe. Specifically, he
argues that the evidence at trial failed to show that he had
access to the safe, was aware of the presence and character of
the cocaine in the safe, and that he exercised dominion over it.
We disagree.
"The Commonwealth may prove possession of a controlled
substance by showing either actual or constructive possession."
Barlow v. Commonwealth, 26 Va. App. 421, 429, 494 S.E.2d 901,
904 (1998).
"To establish 'possession' in the legal sense, not only
must the Commonwealth show actual or constructive possession of
the drug by the defendant, it must also establish that the
defendant intentionally and consciously possessed the drug with
- 4 -
knowledge of its nature and character." Williams v.
Commonwealth, 14 Va. App. 666, 669, 418 S.E.2d 346, 348 (1992)
(citation omitted).
To support a conviction based on
constructive possession, "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."
Glasco v. Commonwealth, 26 Va. App. 763, 774, 497 S.E.2d 150,
155 (1998) (citation omitted) (emphasis added).
"Proof of constructive possession necessarily rests on
circumstantial evidence; thus, '"all necessary circumstances
proved must be consistent with guilt and inconsistent with
innocence and exclude every reasonable hypothesis of
innocence."'" Burchette v. Commonwealth, 15 Va. App. 432, 434,
425 S.E.2d 81, 83 (1992) (citations omitted). However, "[t]he
Commonwealth need only exclude reasonable hypotheses of
innocence that flow from the evidence, not those that spring
from the imagination of the defendant." Hamilton v.
Commonwealth, 16 Va. App. 751, 755, 433 S.E.2d 27, 29 (1993).
Although mere proximity to drugs is
insufficient to establish possession, it is
a circumstance which may be probative in
determining whether an accused possessed
such drugs. Ownership or occupancy of the
[location] in which drugs are found is
likewise a circumstance probative of
possession. In resolving this issue, the
- 5 -
court must consider the totality of the
circumstances disclosed by the evidence.
Glasco, 26 Va. App. at 774, 497 S.E.2d at 155 (internal
citations omitted).
Appellant argues that our holding in Burchette controls the
instant case. In Burchette, we found the evidence insufficient
to prove Burchette constructively possessed marijuana found in a
car parked in front of his home. Burchette, who was under
investigation for suspected drug activity, drove another car
from his house. The police stopped him and, after finding no
drugs in the car he was driving, asked for consent to search the
car parked in front of his house. Burchette refused to consent
to the search. The police returned to Burchette's house and,
looking through the window of the parked car, saw plastic bags
containing green plant-like material. The officers obtained a
search warrant and found, inside the car, sandwich bags with
marijuana, a .9 mm loaded handgun, a wallet containing
Burchette's driver's license and papers with his name on them, a
cellular phone and cellular phone bill with Burchette's name on
it. We held that:
The Commonwealth presented no evidence from
which one reasonably could infer that
Burchette occupied the vehicle or had
exercised dominion over it while the
marijuana was present in it. The evidence
failed to show either when Burchette may
have used or occupied the vehicle or when or
for how long the drugs or paraphernalia had
been in it. The evidence failed to show
that Burchette was the exclusive or primary
- 6 -
operator of the vehicle, or that he
possessed a set of keys to the vehicle, or
when or by whom the vehicle had been most
recently operated or occupied. The
circumstances were not such that one
reasonably could infer, to the exclusion of
other reasonable hypotheses, that Burchette,
as the owner of the vehicle, knew of the
presence, nature and character of the
contraband that was found in it.
Burchette, 15 Va. App. at 435-36, 425 S.E.2d at 84.
The instant case is clearly distinguishable from Burchette.
The evidence when properly viewed, established that appellant
occupied the bedroom and used the closet where the safe with the
drugs was located. No evidence placed anyone other than
appellant in that bedroom. His mother testified that she had no
access to the safe and that she and her eleven-year-old son
slept in a different bedroom. While appellant contends that his
brother, Rondell, had access to the house, his mother testified
that Rondell kept no property in the apartment, and no physical
evidence linked him to the room, the safe or its contents.
White, the next-door neighbor, placed appellant in the apartment
"just about every day" including only hours before the search
warrant was executed. She also testified that she had seen
appellant leave the apartment with "baggies in his hands."
Lastly, appellant's DNA was on the sock containing $2,900 found
inside the safe.
Unlike Burchette, the evidence proved that appellant
"occupied the [room] while the [drugs] were in it," was the
- 7 -
"exclusive or primary" occupant of the room and was in the home
shortly before the execution of the search warrant. His
contention that Rondell may have put the drugs in the safe is
unsupported by any evidence. As we said in Hamilton, the
Commonwealth is not required to exclude a hypothesis of
innocence that finds its foundation in the "imagination of the
defendant." 16 Va. App. at 755, 433 S.E.2d at 29. Thus, these
are all circumstances properly considered by the trial court in
its determination that appellant possessed the drugs and gun.
Although standing alone, no one of these circumstances might be
sufficient to prove appellant constructively possessed the drugs
and gun found in the safe, viewed as a whole, we cannot say that
the trial court erred in finding the evidence sufficient.
Affirmed.
- 8 -