COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Bumgardner and Felton
Argued at Salem, Virginia
JIMMY DALE ADKINS
MEMORANDUM OPINION * BY
v. Record No. 3267-01-3 CHIEF JUDGE JOHANNA L. FITZPATRICK
OCTOBER 29, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE
Joseph W. Milam, Jr., Judge
Robert W. Williams, Jr., Assistant Public
Defender (S. Jane Chittom, Appellate
Defender; Public Defender Commission, on
brief), for appellant.
Eugene Murphy, Assistant Attorney General
(Jerry W. Kilgore, Attorney General, on
brief), for appellee.
Jimmy Dale Adkins (appellant) was convicted in a bench
trial of possession of cocaine, in violation of Code § 18.2-250.
On appeal, he contends that the evidence was insufficient to
prove he possessed the drugs that were found in clothing near
him. For the following reasons, we affirm the judgment of the
trial court.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
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 January 10,
2001, at approximately 9:30 a.m., Deputy Sheriff Michael Hill
(Hill), Deputy Sheriff Barry Breakley (Breakley) and Officer
Christopher Tillman (Tillman) arrived at appellant's home to
serve an emergency commitment order (ECO) obtained by
appellant's mother earlier that morning. The officers found
appellant naked and asleep on the living room couch. The
officers were told that he slept with a knife and were concerned
about his use of a weapon. There was a pile of male clothing on
the floor next to the couch and close to appellant's head.
There were no other clothes in the area. Hill explained that
appellant had to go with the officers because they had an ECO,
and appellant said, "Well, let me get some clothes on."
Breakley testified
When I told [appellant] to get up . . . that
he had to go with me, I noticed he didn't
have any clothes on, so I immediately
reached down and picked up the clothes in
front of him on the floor, and started to
frisk 'em [sic] for to see [sic] if it was a
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weapon in 'em [sic], before I gave 'em [sic]
to him.
Breakley found a vial in the shirt pocket that contained 13
rocks of cocaine with a weight of 1.35 grams and smoking devices
on the floor directly under the clothes. After the vial was
removed, appellant dressed in the clothes. Appellant conceded
that the clothes belonged to him.
Although appellant's mother left the home for a brief
period to obtain the ECO and take her grandchildren to school,
she testified that there "wasn't anybody [else] there that day."
The trial court found the evidence proved the clothes and the
drugs found in them belonged to appellant.
I would agree that . . . the defendant never
made an affirmative statement to the effect
of "These clothes are mine." However, I
think by his words and actions, he clearly
established the clothes as belonging to him
. . . .
Appellant appeals from that decision.
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
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.
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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,
509-10, 500 S.E.2d 233, 235 (1998) (internal citation omitted).
III. CONSTRUCTIVE POSSESSION
Appellant contends the trial court erred in finding the
evidence sufficient to prove that he constructively possessed
the drugs found in the clothing. Specifically, he argues that
the evidence at trial failed to show that he was aware of the
presence and character of the cocaine. 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
knowledge of its nature and character." Williams v.
Commonwealth, 14 Va. App. 666, 669, 418 S.E.2d 346, 348 (1992)
(internal citation omitted).
To support a conviction based on
constructive possession, the Commonwealth
must point to evidence of acts, statements,
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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) (internal citation omitted).
"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) (internal 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
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).
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The circumstantial evidence clearly supports the trial
court's findings that the clothes containing the drugs belonged
to appellant and that he knew their nature and character. The
clothing was found next to the couch where appellant was
sleeping naked. It was the only clothing in the area. Once the
cocaine was removed from the clothing, appellant dressed in the
clothes and conceded at argument that the evidence established
the clothes to be his. The fact that appellant made no
statement about the drugs does not require the fact finder to
disregard the other circumstantial evidence linking him to the
drugs. His close proximity to the clothes containing the drugs;
the smoking devices located under the clothes; the lack of any
other male with access to the clothes or drugs were all properly
considered by the trial court. For the foregoing reasons, we
affirm the conviction.
Affirmed.
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Jimmy Dale Adkins v. Commonwealth
Combined Opinion