COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, Humphreys and Agee
Argued at Chesapeake, Virginia
ERVIN McCOY HARRIS
MEMORANDUM OPINION * BY
v. Record No. 2183-01-1 JUDGE G. STEVEN AGEE
JULY 30, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
James A. Cales, Jr., Judge
Andrew Kolp, Assistant Public Defender
(Office of the Public Defender, on brief),
for appellant.
Amy L. Marshall, Assistant Attorney General
(Jerry W. Kilgore, Attorney General, on
brief), for appellee.
Ervin McCoy Harris (Harris) was convicted in the City of
Portsmouth Circuit Court of possession of cocaine, in violation
of Code § 18.2-250, and possession of marijuana, in violation of
Code § 18.2-250.1. He was sentenced to eighteen months
incarceration for the possession of cocaine conviction, and
thirty days in jail for the marijuana conviction. Harris now
appeals his convictions contending the evidence was insufficient
to establish his possession of the contraband. For the
following reasons we affirm Harris' convictions.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
I. BACKGROUND
As the parties are fully conversant with the record in this
case and because this memorandum opinion carries no precedential
value, only those facts necessary to a disposition of this
appeal are recited.
Portsmouth police detectives executed a search warrant at
an apartment. Upon their entry, the detectives observed Harris
and two women sitting on a couch. Immediately in front of the
trio, approximately one to two feet away and "well within reach"
of Harris, was a coffee table on which two baggies of cocaine
and one marijuana blunt were in plain view. One baggie
contained 2.13 grams of cocaine, while the other baggie
contained 17 individual baggies of cocaine, collectively
weighing 1.67 grams.
The search of the apartment uncovered Harris'
identification on top of the refrigerator in the kitchen and his
social security card in a pair of pants in an upstairs bedroom.
Harris' name was not on the lease, but a detective testified
that Harris told him that he resided at the apartment.
II. ANALYSIS
On appeal, Harris contends the Commonwealth failed to prove
that he possessed the cocaine and marijuana. We disagree and
hold the Commonwealth established Harris' constructive
possession of the narcotics.
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A. STANDARD OF REVIEW
When considering the sufficiency of the evidence on appeal
in a criminal case, this Court views the evidence in the light
most favorable to the Commonwealth, granting to it all
reasonable inferences fairly deducible therefrom. See
Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534,
537 (1975). On review, this Court does not substitute its own
judgment for that of the trier of fact. See Cable v.
Commonwealth, 243 Va. 236, 239, 415 S.E.2d 218, 220 (1992).
Witness credibility, the weight accorded the testimony and the
inferences to be drawn from proven facts are matters to be
determined by the fact finder. See Long v. Commonwealth, 8 Va.
App. 194, 199, 379 S.E.2d 473, 476 (1989). The trial court's
judgment will not be set aside unless it appears that the
judgment is plainly wrong or without supporting evidence. See
Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418
(1987).
B. THE EVIDENCE IS SUFFICIENT
"In order to convict a person of illegal possession of an
illicit drug, the Commonwealth must prove beyond a reasonable
doubt that the accused was aware of the presence and character
of the drug and that the accused consciously possessed it."
Walton v. Commonwealth, 255 Va. 422, 426, 497 S.E.2d 869, 871
(1998) (citation omitted).
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[P]roof of actual possession, [however,] is
not required; proof of constructive
possession will suffice. Constructive
possession may be established when there are
"'acts, statements, or conduct of the
accused or other facts or circumstances
which tend to show that the [accused] was
aware of both the presence and character of
the substance and that it was subject to his
dominion and control.'"
Id. at 426, 497 S.E.2d at 872 (citations omitted).
In determining whether a defendant
constructively possessed drugs, the
defendant's proximity to the drugs and his
occupancy of the [premises] must also be
considered. Although mere proximity to the
drugs is insufficient to establish
possession, and occupancy of the [premises]
does not give rise to a presumption of
possession, . . . both are factors which may
be considered in determining whether a
defendant possessed drugs.
Josephs v. Commonwealth, 10 Va. App. 87, 100, 390 S.E.2d 491,
498 (1990) (en banc) (citations omitted). "[P]ossession need
not always be exclusive. The defendant may share it with one or
more." Ritter v. Commonwealth, 210 Va. 732, 741, 173 S.E.2d
799, 806 (1970). In addition, when narcotics are found in plain
view, a reasonable person might infer that those present knew of
its presence and were exercising control of it. See generally
Nelson v. Commonwealth, 17 Va. App. 708, 711, 440 S.E.2d 627,
628 (1994).
Thus, in resolving the issue of constructive possession,
the trial court must consider "the totality of the circumstances
disclosed by the evidence." Womack v. Commonwealth, 220 Va. 5,
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8, 255 S.E.2d 351, 353 (1979). Circumstantial evidence may be
sufficient to prove possession. "Circumstantial evidence is as
competent and is entitled to as much weight as direct evidence,
provided it is sufficiently convincing to exclude every
reasonable hypothesis except that of guilt." Coleman v.
Commonwealth, 226 Va. 31, 53, 307 S.E.2d 864, 876 (1983).
We conclude the totality of the evidence sufficiently
proves beyond a reasonable doubt that Harris possessed the
contraband. Harris was present when police executed the search
warrant and found the narcotics in plain view on the coffee
table directly in front of Harris and easily within reach.
Evidence established that Harris "stayed" at the apartment, if
in fact he did not actually reside there. These facts coupled
with the personal property belonging to Harris found throughout
the house were sufficient to prove Harris possessed the
narcotics jointly with others and to exclude all reasonable
hypotheses of appellant's innocence. Although none of these
circumstances, standing alone, would have sufficiently proved
that Harris possessed the narcotics, the facts combined to
support the finding that the narcotics discovered in plain view
of, and within reach of, Harris were subject to his informed
"dominion and control." See generally Hardy v. Commonwealth, 17
Va. App. 677, 682-83, 440 S.E.2d 434, 437-38 (1994).
This finding is consistent with our prior decisions. For
example, in Brown v. Commonwealth, 5 Va. App. 489, 364 S.E.2d
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773 (1988), we held the evidence to be sufficient to establish
constructive possession by the defendant where police, executing
a search warrant, found a mirror with cocaine on it, two pounds
of cocaine, a strainer with cocaine residue on it and plastic
bags all within arm's reach of the defendant and two other men.
We upheld his conviction for possession with intent to
distribute finding that Brown's close proximity to the drugs at
issue, a fact from which the trial court could reasonably infer
an awareness of the presence and character of the cocaine,
"combined with . . . the fact that he was in the house about an
hour," was sufficient to prove the narcotics were subject to his
dominion and control. Id. at 493, 364 S.E.2d at 775. 1
Accordingly, we find the evidence to be sufficient in the
case at bar to establish constructive possession and, therefore,
affirm Harris' convictions for the possession of cocaine and
marijuana.
Affirmed.
1
See also Minor v. Commonwealth, 6 Va. App. 366, 371-72,
369 S.E.2d 206, 209 (1988).
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ERVIN McCOY HARRIS V COMMONWEALTH OF VIRGINIA
Combined Opinion