COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Felton and Senior Judge Hodges
Argued at Chesapeake, Virginia
ANTHONY DRIUS AUSBY, S/K/A
ANTHONY DARIUS AUSBY
MEMORANDUM OPINION * BY
v. Record No. 2541-01-1 JUDGE WILLIAM H. HODGES
OCTOBER 8, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
E. Preston Grissom, Judge
Charles B. Lustig, Assistant Public Defender
(Brenda C. Spry, Deputy Public Defender, on
brief), for appellant.
Susan M. Harris, Assistant Attorney General
(Jerry W. Kilgore, Attorney General, on
brief), for appellee.
Anthony D. Ausby appeals his bench trial conviction for
possession of cocaine. He argues the evidence was insufficient to
support his conviction. Ausby contends the Commonwealth failed to
establish he knowingly or intentionally possessed the contraband
as required by Code § 18.2-250. For the reasons that follow, we
disagree and affirm his conviction.
BACKGROUND
"On appeal, 'we review the evidence in the light most
favorable to the Commonwealth, granting to it all reasonable
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
inferences fairly deducible therefrom.'" Archer v.
Commonwealth, 26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997)
(citation omitted).
So viewed, the evidence proved that on April 25, 2001,
Officer David Hicks stopped Ausby for failing to obey a stop
sign. As Ausby pulled over, Hicks saw him making frantic
motions toward the center of the vehicle. Hicks approached the
car and spoke with Ausby, who told the officer he did not have
his driver's license with him. Hicks returned to his vehicle
and issued Ausby a summons for the traffic infraction. He again
observed Ausby making motions toward the center of the vehicle,
near the seat belt harness. Hicks asked Ausby for permission to
search the car, which Ausby granted. Inside the car, between
the driver's seat and the seat belt harness, Hicks located a
small glass smoking device which later tested positive for
cocaine. Hicks also found a bag of crack cocaine and a heroin
capsule in the backseat near where Ausby's back-seat passenger
had been sitting.
ANALYSIS
"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).
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To support a conviction based upon
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."
Drew v. Commonwealth, 230 Va. 471, 473, 338 S.E.2d 844, 845
(1986) (citation omitted). "The Commonwealth is not required to
prove that there is no possibility that someone else may have
planted, discarded, abandoned or placed the drugs . . . ."
Brown v. Commonwealth, 15 Va. App. 1, 10, 421 S.E.2d 877, 883
(1992) (en banc).
Hicks testified he saw Ausby making furtive movements near
the center console of his vehicle, the same area where the
officer later located the pipe. "Occupancy of a vehicle where
drugs are found is insufficient, standing alone, to support an
inference of possession, . . . but it is a circumstance which
the fact finder may consider along with other evidence when
determining whether a person knowingly possessed drugs." Hardy
v. Commonwealth, 17 Va. App. 677, 682, 440 S.E.2d 434, 437
(1994). The cocaine pipe was between Ausby's seat and the seat
belt harness in plain view and in close proximity to Ausby. The
pipe was within the area of Ausby's immediate control, and the
trial court logically inferred that he knew of its presence and
that he intentionally and consciously possessed it. See Adkins
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v. Commonwealth, 217 Va. 437, 438-39, 229 S.E.2d 869, 870
(1976). The Commonwealth's evidence was competent, was not
inherently incredible, and was sufficient to prove beyond a
reasonable doubt that appellant was guilty of possession of
cocaine.
Accordingly, we affirm the decision of the trial court.
Affirmed.
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