COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Willis and Annunziata
Argued at Chesapeake, Virginia
MARVIN WALTER HASKINS
OPINION BY
v. Record No. 1423-98-1 CHIEF JUDGE JOHANNA L. FITZPATRICK
DECEMBER 7, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
Robert P. Frank, Judge
Gail Starling Marshall (Timothy S. Fisher;
Overman & Cowardin, P.L.C., on brief), for
appellant.
Leah A. Darron, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Marvin Walter Haskins (appellant) was convicted in a bench
trial of possession of cocaine, in violation of Code § 18.2-250.
On appeal, he argues the evidence was insufficient to prove that
he constructively possessed the cocaine. For the following
reasons, we reverse.
I.
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 January 9, 1998,
three uniformed police officers executed a search warrant at the
TDY Inn, Room 111, in the City of Newport News. Detective
Richard Dawes (Dawes) made a "knock and announce" entry and
observed numerous people in the front of the room and in the
back bedroom. As Dawes walked down the hallway, he observed
appellant leaving the bathroom. Dawes testified that appellant
"wasn't standing in the hallway, he wasn't standing at the
doorway, he was coming out of the bathroom into the hallway."
Dawes and his fellow officers directed the occupants of the
room, including appellant, to be seated in the living room.
Dawes described the search of the hotel room and bathroom as
follows:
After we got the people in the back bedroom
under control and . . . [the search] warrant
was served and everything, I went back into
the bathroom where I had observed
[appellant] coming out of. The door was
open at this time. I pushed the door closed
and looked directly behind the door, which
would be between the door and the wall which
was just right at the hallway, I observed a
dollar bill was crumpled up.
The dollar bill contained several rocks of what Dawes "believed
to be crack cocaine." Nobody entered or left the bathroom
between the time Dawes saw appellant coming out and Dawes'
discovery of the dollar bill behind the door.
Detective Randy Ronneberg (Ronneberg) acted as the evidence
collection officer during the search of the hotel room.
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Ronneberg collected only the dollar bill containing the
suspected narcotics from the bathroom. After gathering the
evidence but before leaving the hotel room, Ronneberg told
appellant that suspected cocaine had been seized from the
bathroom.
While appellant was seated in the front of the hotel room,
Detective Carl Cespedes (Cespedes) overheard appellant talking
to another person seated to his left. Appellant stated,
"they're trying to pin that stuff on me in the bathroom, but
it's only baking soda." At the time Cespedes overheard
appellant's statement, the detective was unaware of what had
been found in the bathroom. Laboratory testing confirmed that
the rocks found in the dollar bill were .57 grams of cocaine.
Appellant presented no evidence. The trial court overruled
appellant's motion to strike the evidence and found appellant
guilty as charged.
II.
When the sufficiency of the evidence is challenged on
appeal, we determine whether the evidence, viewed in the light
most favorable to the prevailing party, the Commonwealth, and
the reasonable inferences fairly deducible from that evidence
support each and every element of the charged offense. See
Moore v. Commonwealth, 254 Va. 184, 186, 491 S.E.2d 739, 740
(1997); Derr v. Commonwealth, 242 Va. 413, 424, 410 S.E.2d 662,
668 (1991). "In so doing, we must discard the evidence of the
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accused in conflict with that of the Commonwealth, and regard as
true all the credible evidence favorable to the Commonwealth and
all fair inferences that may be drawn therefrom." Watkins v.
Commonwealth, 26 Va. App. 335, 349, 494 S.E.2d 859, 866 (1998).
"We will not reverse the judgment of the trial court, sitting as
the finder of fact in a bench trial, unless it is plainly wrong
or without evidence to support it." Reynolds v. Commonwealth,
30 Va. App. 153, 163, 515 S.E.2d 808, 813 (1999) (citing Martin
v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418
(1987)).
On appeal, appellant contends that the circumstantial
evidence was insufficient to prove his possession of the
cocaine. He argues that his proximity to the cocaine was
insufficient to prove possession and that the Commonwealth's
evidence failed to prove that he was aware of the presence and
character of the cocaine found in the bathroom. We agree.
To establish possession of a controlled substance, the
Commonwealth must prove that "'the defendant was aware of the
presence and character of the particular substance and was
intentionally and consciously in possession of it.'" McNair v.
Commonwealth, ___ Va. App. ___, ___, ___ S.E.2d ___, ___ (1999)
(en banc) (quoting Gillis v. Commonwealth, 215 Va. 298, 301, 208
S.E.2d 768, 771 (1974)). However, "[c]onstructive possession
may be proved through evidence demonstrating 'that the accused
was aware of both the presence and character of the substance
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and that it was subject to his or her dominion and control.'"
Id. at ___, ___ S.E.2d at ___ (quoting Wymer v. Commonwealth, 12
Va. App. 294, 300, 403 S.E.2d 702, 706 (1991)). "Knowledge of
the presence and character of the controlled substance may be
shown by evidence of the acts, statements or conduct of the
accused." Eckhart v. Commonwealth, 222 Va. 447, 450, 281 S.E.2d
853, 855 (1981); see Glasco v. Commonwealth, 26 Va. App. 763,
774, 497 S.E.2d 150, 155 (1998).
Proof by circumstantial evidence "'is not sufficient . . .
if it engenders only a suspicion or even a probability of guilt.
Conviction cannot rest upon conjecture.'" Littlejohn v.
Commonwealth, 24 Va. App. 401, 414, 482 S.E.2d 853, 859 (1997)
(quoting Hyde v. Commonwealth, 217 Va. 950, 955, 234 S.E.2d 74,
78 (1977)). "'"[A]ll necessary circumstances proved must be
consistent with guilt and inconsistent with innocence and
exclude every reasonable hypothesis of innocence."'" Betancourt
v. Commonwealth, 26 Va. App. 363, 373, 494 S.E.2d 873, 878
(1998) (quoting Stover v. Commonwealth, 222 Va. 618, 623, 283
S.E.2d 194, 196 (1981) (quoting Inge v. Commonwealth, 217 Va.
360, 366, 228 S.E.2d 563, 567 (1976))). "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, 24
Va. App. at 414, 482 S.E.2d at 859 (quoting Haywood v.
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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 it must exclude those hypotheses "which
flow from the evidence itself." Cantrell v. Commonwealth, 7 Va.
App. 269, 289-90, 373 S.E.2d 328, 338-39 (1988) (citations
omitted). The evidence in the instant case fails to prove
appellant's guilt beyond a reasonable doubt.
The Commonwealth's evidence failed to prove acts or conduct
from which the trial court could infer beyond a reasonable doubt
that appellant knowingly and intentionally possessed the cocaine
found in the dollar bill located behind the bathroom door. When
Officer Dawes first entered the hotel room he observed appellant
leaving the bathroom, but no evidence negated the reasonable
hypothesis that one of the other "numerous" individuals in the
room placed the crumpled dollar bill with the cocaine in it
behind the bathroom door. In fact, drugs were found on other
occupants of the room. Additionally, no evidence proved that
appellant had a lawful interest in the hotel room. Officer
Dawes admitted on cross-examination that there was "no reason to
suspect that [appellant] had any ownership, rental, or control
in this room at all" and that another individual rented the
hotel room. Appellant's mere proximity to the cocaine found in
the bathroom is not sufficient to prove his possession of the
controlled substance. See Walton v. Commonwealth, 255 Va. 422,
426, 497 S.E.2d 869, 872 (1998).
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Additionally, the evidence established that Officer
Ronnenberg told appellant that suspected cocaine had been found
in the bathroom. Although appellant's statement that the
officers were "trying to pin" the cocaine on him and that the
substance was "only baking soda" proves that appellant knew the
officers had found some suspected substance behind the bathroom
door, it proves little else. The record discloses neither the
context of this statement nor whether appellant actually
believed the substance was baking soda. Viewed as a whole, the
circumstantial evidence is suspicious, but does not prove beyond
a reasonable doubt that appellant constructively possessed the
cocaine found behind the bathroom door. "Suspicion, no matter
how strong, is not enough. Convictions cannot rest upon
speculation and conjecture." Littlejohn, 24 Va. App. at 415,
482 S.E.2d at 860 (citations omitted). For the foregoing
reasons, we reverse the conviction.
Reversed.
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