Powell v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Coleman and Bumgardner
Argued at Salem, Virginia

TREMAYNE ORTEZE POWELL
OPINION BY
v. Record No. 0545-97-3 JUDGE SAM W. COLEMAN III
APRIL 21, 1998
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG
Richard S. Miller, Judge
Philip B. Baker (Joseph A. Sanzone
Associates, P.C., on brief), for appellant.

Marla Graff Decker, Assistant Attorney
General (Richard Cullen, Attorney General, on
brief), for appellee.

Tremayne Orteze Powell appeals his bench trial conviction

for possession of marijuana and possession of cocaine. He

contends: (1) the trial court erred by denying his motion to

suppress marijuana discovered in a search incident to an unlawful

arrest, and (2) the evidence is insufficient to prove he

possessed cocaine. We disagree and affirm the convictions.
I. BACKGROUND

City of Lynchburg Police Officers Kevin Hollyfield, J.P.

Stokes, and another officer were patrolling in an unmarked

vehicle in a high crime area also known to be an open-air drug

market. Hollyfield observed appellant and two other men sitting

on a low wall, approximately eighteen inches high, facing the

street with their backs to a parking lot. The two men were

sitting approximately three feet from the appellant. Hollyfield
saw appellant place his left hand, which was clenched in a fist,

behind his back, keeping his hand close to his body as he placed

it behind him. When appellant brought his hand back in front,

Hollyfield saw that it was unclenched. Neither of the other two

men made any motions with their hands. Hollyfield alerted the

other officers, and they pulled their vehicle up to the curb

where appellant was sitting.

Appellant stood up and began to walk away as Hollyfield

exited the car. Stokes walked over to the wall and found a small

brown paper bag containing crack cocaine lying on the ground

directly below the spot where appellant had been sitting. Stokes

testified that the bag of drugs was lying six to twelve inches

"underneath" where appellant's "left thigh" had been when he was

sitting on the wall. Stokes also testified that there was no

debris within the immediate area where he found the drugs.

Stokes did not field test the substance, but, based upon his

training and experience in investigating nearly two hundred

cocaine cases, he testified that it had the appearance of

cocaine. Stokes alerted Hollyfield that he had found cocaine

behind the wall where appellant had been sitting, and Hollyfield

arrested appellant. Upon searching appellant incident to the

arrest, Hollyfield discovered a marijuana cigarette in

appellant's right front shirt pocket.

II. SEARCH INCIDENT TO ARREST
Appellant contends the marijuana was seized pursuant to an

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unlawful arrest because the officers lacked probable cause to

arrest him for possessing the cocaine. His contention is without

merit.

"[T]he test of constitutional validity [of a warrantless

arrest and incidental search] is whether, at the moment of

arrest, the arresting officer had knowledge of sufficient facts

and circumstances to warrant a reasonable man in believing that

an offense has been committed." Bryson v. Commonwealth, 211 Va.

85, 86-87, 175 S.E.2d 248, 250 (1970) (citing Brinegar v. United
States, 338 U.S. 160 (1949)). To establish probable cause, the

Commonwealth must show "'a probability or substantial chance of

criminal activity, not an actual showing'" that a crime was

committed. Ford v. City of Newport News, 23 Va. App. 137,

143-44, 474 S.E.2d 848, 851 (1996) (quoting Illinois v. Gates,

462 U.S. 213, 243 n.13 (1983)). "In determining whether probable

cause exists courts will test what the totality of the

circumstances meant to police officers trained in analyzing the

observed conduct for purposes of crime control." Hollis v.

Commonwealth, 216 Va. 874, 876-77, 233 S.E.2d 887, 889 (1976)

(citation omitted). The issue of whether probable cause existed

to make a warrantless search involves questions of both law and

fact and is reviewed de novo on appeal. See McGhee v.

Commonwealth, 25 Va. App. 193, 197-98, 487 S.E.2d 259, 261 (1997)

(en banc) (citing Ornelas v. United States, 116 S. Ct. 1657, 1659

(1996)).

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 In this case, Hollyfield observed appellant, who was sitting

in an area known to be an open-air drug market, make a furtive

hand gesture, as if discarding something from a clenched fist,

then stand up and walk away as the officers approached. Stokes

found a bag on the ground immediately behind where appellant had

been sitting and recognized the contents as having the appearance

of crack cocaine. He alerted Hollyfield that he had found

cocaine. Under the circumstances, it was reasonable for Stokes,

drawing upon his training and experience, to conclude that the

substance was probably cocaine and for Hollyfield, based on

Stokes' communication that he found cocaine and his own

observation of appellant's conduct, to determine that appellant

probably possessed the cocaine before dropping it behind the wall

when the officers approached. Accordingly, we find that

Hollyfield had probable cause to arrest appellant for possession

of cocaine and that the marijuana was legally seized in a search

pursuant to a lawful arrest.
III. SUFFICIENCY OF THE EVIDENCE

When the sufficiency of the evidence is challenged on

appeal, we review the evidence in the light most favorable to the

Commonwealth, granting to it all reasonable inferences fairly

deducible therefrom. Martin v. Commonwealth, 4 Va. App. 438,

443, 358 S.E.2d 415, 418 (1987).

The present case is factually similar to Collins v.

Commonwealth, 13 Va. App. 177, 409 S.E.2d 175 (1991). In

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Collins, police officers approached the defendant as he sat

sidesaddle in the front seat of his car in a dimly lit parking

lot. Id. at 178, 409 S.E.2d at 175. Upon seeing the officers,

Collins got up from his car and "made a throwing motion under the

vehicle with his right arm." Id. Immediately thereafter, an

officer illuminated the area under the car with a flashlight and

discovered a plastic baggie of cocaine. Id. No other items were

found beneath the vehicle. Id. Despite the fact that the record

contained no evidence that the officers saw any contraband or

other object leave Collins' hand, we held that the evidence was

sufficient to support the trial court's finding that Collins

threw the drugs under the car. Id. at 179-80, 409 S.E.2d at 176.

We found Collins' argument unpersuasive "that the cocaine might

have already been under his car," noting that the drugs were

"something of significant value and not something that one is

likely to have abandoned or carelessly left in the area there."

Id. at 180, 409 S.E.2d at 176. Accordingly, we found the

evidence sufficient to prove that Collins constructively

possessed the cocaine found under his vehicle. Id.

Here, as in Collins, the circumstantial evidence is

sufficient to prove that appellant possessed the cocaine.

Hollyfield testified that appellant placed his clenched left hand

behind his back and that the hand was unclenched when he returned

it back in front of him. Appellant's suspicious hand movement

and the fact that cocaine was found precisely where the appellant

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would have dropped an object from his left hand behind his back,

support the inference that appellant possessed the bag of cocaine

and discarded it on the ground behind him when the officers

approached.

The facts in Gordon v. Commonwealth, 212 Va. 298, 183 S.E.2d

735 (1971), are distinguishable from the facts in this case.

There, a police officer approached Gordon on a busy, public

street while the latter carried a small, manila envelope. Id. at

299, 183 S.E.2d at 736. Gordon left the street and ran down

several narrow passageways abutting the street. Id. As the

officer chased Gordon through the passageways, the officer

momentarily lost sight of Gordon on a couple of occasions. Id.

When the officer eventually captured him, Gordon was no longer

carrying the envelope. Id. Another officer arrived on the scene

and found a small, manila envelope lying near one of the

passageways on a grass plot separated from the public street by a

perforated wall. Id. at 300, 183 S.E.2d at 736. At trial, the

officer "conceded that he did not see Gordon dispose of the
envelope." Id. at 299, 183 S.E.2d at 736 (emphasis added). No

evidence established that Gordon made any sort of throwing or

dropping motion during his flight. See id. The Supreme Court

reversed the conviction, holding that there was a "fatal gap in

the circumstantial evidence adduced against Gordon." Id. at 301,

183 S.E.2d at 737. Because "[n]o witness was produced who saw

Gordon dispose of the manila envelope which he carried," id. at

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300-01, 183 S.E.2d at 737, the evidence failed to exhibit an

"unbroken chain of circumstances" proving "to the exclusion of

any other rational hypothesis" that Gordon possessed the drugs in

the envelope that was found. Id. at 300, 183 S.E.2d at 737

(citation omitted). Although highly suspicious because the

officers found an envelope that was similar in size, color, and

shape to the one that Gordon had earlier possessed, the evidence

did not prove that Gordon had discarded the envelope or where he

may have done so. The Court found that the officer could have

reasonably recovered another manila envelope left by one of the

several persons gathered along the public street. Id. at 301,

183 S.E.2d at 737. Accordingly, the Court concluded that "there

was a break in the chain of evidence" which rendered the evidence

insufficient to prove beyond a reasonable doubt that Gordon

possessed the drugs and paraphernalia. Id. at 300-01, 183 S.E.2d

at 737.

In the present case, unlike as in Gordon, there is no "break

in the chain of [the] evidence." Hollyfield observed appellant

place his clenched hand behind his back and bring his open hand

back to his front. Upon learning of Hollyfield's observation,

Stokes immediately walked to the wall and found the bag of drugs

directly below where appellant had been sitting. Thus, there was

no "fatal gap" in the officers' observing appellant's hand

gesture as if discarding an object from a clenched fist and the

officer finding the bag of drugs directly behind where appellant

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was sitting. Accordingly, we cannot say the trial court's

conclusion that appellant possessed the cocaine was plainly wrong

or without evidence to support it.

For these reasons, we affirm the convictions.

Affirmed.

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Benton, J., dissenting.

The principle is well established that whenever "a

conviction 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.'" Garland v. Commonwealth, 225 Va. 182,

184, 300 S.E.2d 783, 784 (1983) (quoting Inge v. Commonwealth,

217 Va. 360, 366, 228 S.E.2d 563, 567 (1976)). Thus, the Supreme

Court has ruled that "circumstances of suspicion, no matter how

grave or strong, are not proof of guilt sufficient to support a

verdict of guilty . . . [because the] actual commission of the

crime by the accused must be shown by evidence beyond a

reasonable doubt to sustain . . . [a] conviction." Clodfelter v.

Commonwealth, 218 Va. 619, 623, 238 S.E.2d 820, 822 (1977).

Although no evidence in this case proved that Tremayne

Powell ever possessed the bag of cocaine found behind the wall,

the majority infers from the circumstances that Powell must have

placed it there. The majority draws that inference even though

the police officer testified that he did not see anything in

Powell's hand. The officer merely suspected that Powell's closed

hand contained something. The lack of evidence proving that

Powell possessed any item in his hand is a "fatal gap in the

circumstantial evidence," Gordon v. Commonwealth, 212 Va. 298,

301, 183 S.E.2d 735, 737 (1971), and manifestly establishes that

the evidence in this case was insufficient to prove beyond a

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reasonable doubt that Powell ever possessed the bag of cocaine

found behind the wall.

The majority asserts that the facts in Gordon are

distinguishable from the facts in this case. I agree. Indeed,

the facts in Gordon are more inculpatory than the facts in this

case. In Gordon, a police officer saw the accused retrieve "a

brownish color, manila color envelope" from between bushes and a

concrete fence. Id. at 299, 183 S.E.2d at 736. After the

accused began to run, the officer chased him and saw that he was

still carrying the envelope. During the chase, the accused

discarded the envelope. While the officer was capturing and

arresting the accused, another officer found an envelope on the

route of the chase. The arresting officer testified that the

envelope "was the 'same color, size and shape' as the envelope

which he had seen [the accused] pick up [and hold]." Id. at 300,

183 S.E.2d at 736. Although the arresting officer saw the

accused retrieve and run with an envelope that was the "same

color, size and shape" as the envelope that contained the drugs,

the Supreme Court held that the trier of fact impermissibly drew

an inference that the accused had disposed of the envelope that

was recovered. Id. See also Craig v. Commonwealth, 215 Va. 260,

262, 208 S.E.2d 744, 746 (1974) (holding that an officer's

suspicion that a bag of marijuana was thrown from a truck when

the truck stopped at the bag's location was "not sufficient to

. . . exclude all reasonable conclusions inconsistent with . . .

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guilt").

The evidence in this case is more speculative. From a

distance of a half block, a police officer saw Powell and two

other men sitting on a wall at the intersection of two streets.

The two men were sitting to the left of Powell. Although the

officer testified that Powell moved his closed left hand behind

his back, the officer saw no object in Powell's hand. Powell

denied that the cocaine was his or that he put it behind the

wall. The police officer exited his vehicle, told the two men

who had been on the wall with Powell to leave, and did not

question them.
The only evidence offered by the Commonwealth that did not

require the trier of fact to speculate, conjecture, or surmise

while assessing Powell's guilt or innocence was evidence of

opportunity. Yet, it is well established that "mere opportunity

to commit an offense raises only 'the suspicion that the

defendant may have been the guilty agent; and suspicion is never

enough to sustain a conviction.'" Christian v. Commonwealth, 221

Va. 1078, 1082, 277 S.E.2d 205, 208 (1981) (quoting Simmons v.

Commonwealth, 208 Va. 778, 783, 160 S.E.2d 569, 573 (1968)).

"Suspicious circumstances, including proximity to a controlled

drug, are insufficient to support a conviction." Behrens v.

Commonwealth, 3 Va. App. 131, 135, 348 S.E.2d 430, 432 (1986).

"[E]ven probability of guilt is not sufficient" to support a

conviction. Gordon, 212 Va. at 300, 183 S.E.2d at 737. The two

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men sitting on the wall beside Powell, "assuming they possessed

illegal drugs, would have had the same motive and the same

opportunity, as did [Powell], to rid themselves of the drugs" by

placing them behind the wall. Craig, 215 Va. at 262, 208 S.E.2d

at 745.

Furthermore, where, as here, the evidence "'is equally

susceptible of two interpretations one of which is consistent

with the innocence of the accused, [the trier of fact] cannot

arbitrarily adopt that interpretation which incriminates [the

accused].'" Harrell v. Commonwealth, 11 Va. App. 1, 11, 396

S.E.2d 680, 685 (1990) (quoting Corbett v. Commonwealth, 210 Va.

304, 307, 171 S.E.2d 251, 253 (1969)). The officer who detained

Powell testified that the corner where the three men were sitting

on the wall was an "open air drug market." Thus, a reasonable

hypothesis flows from the evidence that someone other than Powell

placed the bag of cocaine on the ground behind the wall. "There

. . . exists the possibility that the bag was present [on the

ground] prior to the time" the officers arrived. Craig, 215 Va.

at 262, 208 S.E.2d at 745. Certainly, the evidence does not

establish the innocence of the two other men who also were

sitting on the wall within three feet of the bag of cocaine in an

area known to be an "open air drug market." This evidence falls

short of proving beyond a reasonable doubt that the drugs found

behind the wall were ever actually or constructively possessed by

Powell. "Whenever the evidence leaves indifferent which of

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several hypotheses is true, or merely establishes only some

finite probability in favor of one hypothesis, such evidence does

not amount to proof of guilt beyond a reasonable doubt." Sutphin

v. Commonwealth, 1 Va. App. 241, 248, 337 S.E.2d 897, 900 (1985).

The majority's reliance on Collins v. Commonwealth, 13 Va.

App. 177, 409 S.E.2d 175 (1991), cannot overcome the deficiency

of proof that is demonstrable under the Gordon standard. The

Collins decision fails to address Gordon's holding. Moreover,

for the reasons I have previously stated in Collins, see 13 Va.
App. at 180-81, 409 S.E.2d at 176-77 (Benton, J., dissenting), I

believe that decision was wrongly decided. In addition, if

Collins must be distinguished, the absence of evidence in Collins

proving that the accused was in an "open air drug market" and in

the presence of other people is sufficient to distinguish the

Collins decision.

Because this conviction is impermissibly based on

speculation and conjecture, see Wright v. Commonwealth, 217 Va.

669, 670, 232 S.E.2d 733, 734 (1977), it should be reversed. I

dissent.

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