COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Annunziata and Humphreys
Argued at Richmond, Virginia
AVERY ELTON TAYLOR, JR.
MEMORANDUM OPINION * BY
v. Record No. 0880-01-2 JUDGE ROBERT J. HUMPHREYS
JULY 30, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF PETERSBURG
Oliver A. Pollard, Jr., Judge
Joseph A. Sadighian (Office of the Public
Defender, on brief), for appellant.
Jennifer R. Franklin, Assistant Attorney
General (Randolph A. Beales, Attorney
General, on brief), for appellee.
Avery Elton Taylor, Jr. appeals his convictions, after a
bench trial, for possession of cocaine with the intent to
distribute in violation of Code § 18.2-248, and possession of a
firearm while simultaneously possessing a controlled substance in
violation of Code § 18.2-308.4(A). Taylor contends the trial
judge erred in (1) denying his motion to suppress the evidence
discovered after a seizure of his automobile and (2) denying his
motion to strike the evidence for insufficiency. For the reasons
that follow, we affirm his convictions.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
I.
At a pretrial hearing on Taylor's motion to suppress, the
evidence proved that at 9:45 p.m. on June 29, 2000, Officer
Gilstrap, Officer Kendall, and Officer Jennings of the Petersburg
Police Department went to a hotel to investigate a report of
persons having drugs and weapons in two hotel rooms. Officer
Kendall testified that they were dispatched to Room 131. Officer
Jennings testified that they also had been given Taylor's name by
their dispatcher.
According to Officer Gilstrap, he and the other officers
arrived at the hotel around the same time but in separate cars.
Officer Gilstrap testified that the hotel property was fenced with
two points of entry and that he parked his car so as not to impede
traffic into or out of the property. Officer Gilstrap saw the car
he knew was used by Taylor and parked behind it but "not in such a
way to effectively block his egress." He testified that he parked
"[m]aybe 30 degrees from the center" of Taylor's car "in such a
way to be out of the way" and walked to the center of the parking
lot to confer with the other officers. Officer Gilstrap then
approached the driver side of the car; Officer Kendall approached
the passenger side; and Officer "Jennings took a wider stance away
from Officer Kendall on the passenger side for safety sake."
After seeing a person in the driver's seat whom he did not
recognize, Officer Gilstrap asked him, "what room are you coming
from?" Officer Gilstrap "asked [the driver] if he would mind
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stepping from the car and speaking to me for a moment." He
testified the driver agreed to do so. Officer Gilstrap then
"requested a consent search . . . and asked him if he had any
weapons on his person." After the driver said he had no weapons,
Officer Gilstrap searched him. He found no drugs, weapons, or
contraband on the driver.
Officer Kendall testified that, when he arrived, Officer
Gilstrap was making contact with the driver of the vehicle. He
stated that he had dogs in his vehicle and parked close to the
hotel's office because he did not want the suspects to hear the
dogs barking. According to Officer Kendall, the driver and
Officer Gilstrap were standing to the rear of the car as he
approached. Officer Kendall testified that as he approached the
passenger side of the car, "Taylor leaned out the window, looked
at [him] and asked . . . what was going on." Officer Kendall told
Taylor they had been dispatched to the hotel and asked Taylor to
identify the room he had visited. When Taylor said Room 131,
Officer Kendall told Taylor they had come to investigate that room
for illegal narcotics and weapons. He asked whether Taylor had
any weapons. When Taylor said he did not, Officer Kendall asked
whether Taylor would mind if he frisked Taylor for weapons and
checked the vehicle. He testified that Taylor said "no, he did
not mind . . . and actually handed [the officer] the keys to the
vehicle and said [the officer] could start with the trunk."
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When Officer Jennings approached, Officer Kendall told Taylor
he first wanted to check Taylor for weapons. Officer Kendall
testified that Taylor then "took off running."
Timothy Dunbar, the driver of the vehicle, testified that he
went to the hotel to "hang out" with Taylor and that later Taylor
asked if he would drive his car home. Dunbar testified he tried
to put the car in reverse and saw four officers behind him. He
stopped and just sat there. Dunbar testified that the officers
approached the car and asked if the car was his. When he said it
was not, they asked him to get out of the car. At that point,
Taylor was asking "why they were pulling us over."
At the conclusion of the evidence, Taylor's counsel argued
that neither Taylor nor the driver was free to leave when the
three police officers were approaching Taylor's vehicle. Taylor's
counsel argued, therefore, that the encounter amounted to an
unlawful seizure and any evidence discovered was the result of an
unlawful detention. In response, the prosecutor argued that "this
was a consensual encounter, there was no seizure, [Taylor] did not
submit to a show of authority, [and] the officers did not . . .
block the car . . . in any way." The trial judge denied the
motion to suppress concluding that the motion was "without merit."
At trial, Officer Gilstrap testified that, while he was
talking with the driver, he saw Taylor run past him. Officer
Kendall was in pursuit. Officer Gilstrap then "pushed [the
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driver] on the ground for safety sake and turned and ran after Mr.
Taylor as well."
Officer Osman, an off-duty police officer who was there to
meet Officer Kendall, was closer to Taylor's flight path. Officer
Osman pursued Taylor across Little Church Street as Taylor ran
toward Washington Street. He caught Taylor in the parking lot
behind a commercial business and leaped onto Taylor's back.
Officer Kendall and Officer Gilstrap also leaped onto Taylor.
When Taylor fell, one of the officers heard a piece of metal hit
the asphalt. A fierce struggle ensued. Officer Gilstrap
ultimately had to spray Taylor with a chemical to subdue him. The
officers then pried Taylor's hand from underneath his stomach area
and placed Taylor in handcuffs. Officer Osman testified that when
they lifted Taylor, he "observed a pistol stuffed in [Taylor's]
pants exactly where his hands were."
The officers led Taylor from behind the building and across
Little Church Street. While the officers were escorting Taylor
toward the police vehicle, Officer Gilstrap saw a large package in
the middle of the street. The package contained two smaller
bundles of crack cocaine and a larger bundle, which held several
one inch by one inch clear and purple translucent plastic bags
containing crack cocaine and two bags of powder cocaine.
Later, when searching Taylor, Officer Gilstrap found in
Taylor's pocket empty bags, which he described as looking like the
bags containing cocaine. He testified that the bags, which were
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called "zips," were small and clear with a purplish tint. Taylor
also had a razor blade with an unidentified substance on it, a key
to Room 131, a pager, and $106 in denominations of five $10 bills,
ten $5 bills, and six $1 bills. In Taylor's car, the officers
found a second pager and "a couple of cell phones."
The officers testified that the drugs were found "in the
middle of Little Church Street," only 50-60 feet away from the
location where officers struggled with Taylor, and directly on
Taylor's flight path. Officer Gilstrap testified that he knew the
drugs "had not been in the middle of the street when [he] made his
entrance onto the hotel property." Officer Osman testified that
as he was chasing Taylor, he had observed, "the whole time he was
running, his hands were in front of him . . . like he was digging
in his pants. . . . I don't know if he was digging in his pants.
I couldn't see the front of him. I could see the motion like he
was doing that." Moreover, Osman testified, "right after we
detained [Taylor] . . . we started walking back. . . . We walked
the exact path," and found the drugs in the street.
Officer Gilstrap stated that during the incident, "[t]here
were a few [people in the area], most were standing on the
property away from us. They were watching. There were a few
people up the street on Little Church Street watching." When
asked whether he observed other people on Little Church Street,
Officer Kendall testified, "Like I said, during the struggle, I
didn't see anybody over that way. I didn't notice anybody over
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that way. If there was, I would have notice [sic] while we were
struggling. . . . The only people I saw were coming off East
Washington Street as we were coming from behind the corner of
the building." Finally, Osman stated that when the struggle
ultimately took place, "[w]e were only from maybe like from me
to the exit sign where the cocaine was. There was nobody in
that immediate area." When asked by Taylor's counsel whether
someone could have been in that area while the struggle took
place, Osman responded, "Not at the time I observed it, no." He
conceded he was not paying attention to the area during the
entire struggle, but maintained "[he] was in direct sight of
it."
At the conclusion of the evidence, the trial judge found
that no evidence proved anyone else dropped the package, and
convicted Taylor of possession of cocaine with intent to
distribute, as well as simultaneous possession of a controlled
substance and a firearm.
II.
Taylor first argues "that [he] was seized when the driver
of the car was prevented from leaving and that [this] seizure
was unlawful." The Commonwealth contends, however, that Taylor
"voluntarily consented to a search of his vehicle and of his
person."
"[L]aw enforcement officers do not violate the Fourth
Amendment by merely approaching an individual on the street or
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in another public place . . . [and] asking him if he is willing
to answer some questions." 1 "Such encounters 'need not be
predicated on any suspicion of the person's involvement in
wrongdoing,' and remain consensual 'as long as the citizen
voluntarily cooperates with the police.'" 2 "Only when the
officer, by means of physical force or show of authority, has in
some way restrained the liberty of a citizen may we conclude
that a 'seizure' has occurred." 3
The trial judge accepted as credible the officer's
testimony that they did not park in a manner that impeded the
departure of the car. Furthermore, when Officer Gilstrap went
to the car, the driver exited the car and spoke to him. While
this was occurring, Taylor inquired of Officer Kendall the
purpose of the investigation and then agreed to permit a search
of the car. On these facts, the trial judge had sufficient
evidence of a consensual encounter and did not err in denying
the motion to suppress.
III.
Taylor next contends that the evidence was insufficient as
a matter of law to establish that he possessed the drugs.
Taylor argues that the Commonwealth failed to negate the
1
Florida v. Royer, 460 U.S. 491, 497 (1983).
2
Payne v. Commonwealth, 14 Va. App. 86, 88, 414 S.E.2d 869,
870 (1992) (citations omitted).
3
Florida v. Bostick, 501 U.S. 429, 434 (1991).
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reasonable hypothesis that another person abandoned the drugs in
the street, while the police officers "were busy arresting
[him]."
"To support [a conviction based upon constructive
possession of drugs], 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 [accused] was aware of
both the presence and character of the substance and that it was
subject to [the accused's] dominion and control." 4 Furthermore,
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.'" 5
However, "'[t]he Commonwealth is not
required to prove that there is no
possibility that someone else may have
planted, discarded, abandoned, or placed
the . . . drugs or paraphernalia where they
were found near an accused.'" Pemberton v.
Commonwealth, 17 Va. App. 651, 655, 440
S.E.2d 420, 422 (1994) (citation omitted).
Whether a hypothesis of innocence is
reasonable is a question of fact, Cantrell
v. Commonwealth, 7 Va. App. 269, 290, 373
S.E.2d 328, 339 (1988), and a finding by the
4
Powers v. Commonwealth, 227 Va. 474, 476, 316 S.E.2d 739,
740 (1984).
5
Garland v. Commonwealth, 225 Va. 182, 184, 300 S.E.2d 783,
784 (1983) (citation omitted).
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trial court is binding on appeal unless
plainly wrong. Martin v. Commonwealth, 4
Va. App. 438, 443, 358 S.E.2d 415, 418
(1987) 6
Here, unlike the circumstances in Gordon v. Commonwealth,
212 Va. 298, 183 S.E.2d 735 (1971), there was no "fatal gap in
the circumstantial evidence," proving that Taylor possessed the
drugs. 7 In Gordon, a police officer approached Gordon on a busy,
public street and observed that he carried a small, manila
envelope. 8 Gordon left the street and ran down several narrow
passageways abutting the street. 9 As the officer chased Gordon
through the passageways, the officer momentarily lost sight of
Gordon on a few occasions. 10 When the officer eventually
captured him, Gordon was no longer carrying the envelope. 11
After arresting Gordon, the officer searched the surrounding
area for the envelope, but was unable to find it. 12
Subsequently, 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
6
Grier v. Commonwealth, 35 Va. App. 560, 571, 546 S.E.2d
743, 748 (2001).
7
See 212 Va. at 300-01, 183 S.E.2d at 737.
8
Id. at 299, 183 S.E.2d at 736.
9
Id.
10
Id.
11
Id.
12
Id.
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wall. 13 However, neither officer observed Gordon make any sort
of throwing or dropping motion during his flight. 14
Accordingly, the Supreme Court reversed the conviction,
concluding that because there was no witness produced who saw
Gordon dispose of the manila envelope and because the envelope
containing the narcotics "works" was found by a grass plot
separated only by a perforated wall from the public street on
which numerous persons were gathered, there was a fatal gap in
the circumstantial evidence adduced against Gordon. 15
Considering the evidence in the light most favorable to the
Commonwealth, as we must, the evidence in the case at bar
demonstrates materially different circumstances. 16 Although there
was no evidence that the officers saw Taylor with the drugs, nor
that they observed him discard the drugs, the drugs were found in
his direct flight path, immediately after he was arrested.
Further, the evidence proved that the drugs were not there when
the officers arrived on the scene and that there were no other
people in the area where the drugs were found either before,
during, or just after the struggle took place.
13
Id. at 300, 183 S.E.2d at 736.
14
See id.
15
Id. at 300-01, 183 S.E.2d at 737.
16
See Goins v. Commonwealth, 218 Va. 285, 288-89, 237
S.E.2d 136, 139 (1977).
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Thus, the circumstantial evidence in this case excluded every
reasonable hypothesis of innocence and established an unbroken
chain of circumstances from which the trier of fact could properly
find, beyond a reasonable doubt, that Taylor dropped the drugs on
Little Church Street, in the course of his flight from police.
Furthermore, the trial court's factual finding to the effect,
"[i]f you want to say somebody just decided they were going to
unload 12 grams of cocaine right where [Taylor had] just run, you
can argue that. I don't accept it as a meritorious argument," was
not "plainly wrong" on these facts.
Finally, we note that, while no single piece of evidence
presented at trial was sufficient to sustain the trial court's
finding that Taylor possessed the cocaine found in the street, the
totality of the evidence supports his conviction beyond a
reasonable doubt. 17 Specifically, Taylor was in actual possession
of a razor blade with an unidentified substance, plastic bags
similar to the one inch by one inch clear purple translucent
plastic bags containing crack cocaine found on the street, as well
as $106 in small denominations.18 Second, the police found the
17
See Glasco v. Commonwealth, 26 Va. App. 763, 774, 497
S.E.2d 150, 155 (1998) (holding that appeals court reviewing the
sufficiency of the evidence of a defendant's awareness of the
presence and character of a controlled substance and his
dominion over it must consider the totality of the
circumstances).
18
See Colbert v. Commonwealth, 219 Va. 1, 4, 244 S.E.2d
748, 749 (1978) (finding that where the accused is in possession
of a large amount of money in proximity to controlled
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drugs on Taylor's direct path. 19 Third, the police found two
pagers on his person, and a "couple of cell phones" in the car. 20
For the reasons stated in this opinion, we affirm Taylor's
convictions.
Affirmed.
substances, the court may reasonably conclude that the
controlled substances are part of a large batch from which he
derived his profits); Glenn v. Commonwealth, 10 Va. App. 150,
155, 390 S.E.2d 505, 508 (1990) (noting that the unexplained
possession of a large amount of cash in small denominations
constitutes evidence of intent to distribute).
19
See Lane v. Commonwealth, 223 Va. 713, 716, 292 S.E.2d
358, 360 (1982) (noting that proximity to a controlled substance
is a factor to consider when determining whether an accused
constructively possessed drugs).
20
See Glasco, 26 Va. App. at 775, 497 S.E.2d at 156
(recognizing pagers and cell phones as tools of the drug trade,
probative of intent to distribute controlled substances).
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Benton, J., concurring, in part, and dissenting, in part.
I concur in Part II of the majority opinion holding that
Avery E. Taylor, Jr. was not seized when he engaged in
conversation with the officers. For the reasons that follow, I
dissent from Part III, and I would reverse the convictions and
dismiss the indictments.
"To support [a conviction based upon constructive
possession of drugs], 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 [accused] was aware of
both the presence and character of the substance and that it was
subject to [the accused's] dominion and control." Powers v.
Commonwealth, 227 Va. 474, 476, 316 S.E.2d 739, 740 (1984).
Furthermore, 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) (citation omitted).
Applying these principles, 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).
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The record contains no evidence that any of the officers
saw Taylor in possession of the package of cocaine they found in
the street. Although at least three police officers pursued
Taylor as he ran from the parking lot, none of them saw him hold
or drop the package. Officer Gilstrap testified he did not see
Taylor throw anything while he was running. He also testified
that he had noticed people on Little Church Street and people on
the hotel property watching the entire incident and that
"[a]lmost anytime the police show up, people come out to
observe." He further testified that many people were milling
about after the officers subdued Taylor and that, at one point,
he had to tell the people to move away.
Officer Kendall also testified that he did not see Taylor
throw anything. He testified that people started showing up
after they subdued Taylor. When asked, however, whether people
were standing around watching the struggle, Officer Kendall
testified that he "wasn't paying attention to anything around
us. It was all I could do to struggle with Mr. Taylor." He
recalled, however, that after they raised Taylor from the
"asphalt behind the business," people were coming from East
Washington Street and that an officer "actually had to tell them
to clear the scene. It was a scene." He "couldn't tell
. . . how long [the people] had been there."
Officer Osman testified that he chased Taylor the entire
way from the car to the place where he grabbed Taylor. He
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testified that he was watching Taylor during the entire pursuit
and noticed that "[t]he whole time [Taylor] was running, his
hands were in front of him." He said Taylor was reaching in his
pants like he was "digging or grabbing at something." Officer
Osman did not see Taylor throw anything as he ran; however, he
saw "a pistol stuffed in [Taylor's] pants exactly where his
hands were." He also testified that he was not watching the
spectators because he "was too busy worrying about the gun
[Taylor] had in his belt."
The record clearly establishes that the officers' fierce
struggle with Taylor occupied their attention. As Officer Osman
described, the officers were "fighting someone four times
[their] size." According to Officer Kendall, it was "one of the
worst fights [he] had in [his employment] with the police
department." During the several minutes of fighting and
struggling with Taylor, none of the officers was watching the
area of Little Church Street where the cocaine was later found.
The officers eventually sprayed Taylor with a chemical to subdue
him. By that time, however, many people had gathered to watch
these events.
The lack of evidence proving that Taylor possessed the
package of cocaine 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 reasonable doubt
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that Taylor ever possessed the cocaine. Indeed, the facts in
this case are more favorable to Taylor's lack of possession than
the facts in Gordon. In Gordon, a police officer saw Gordon
retrieve "a brownish color, manila color envelope" from between
bushes and a concrete fence. 212 Va. at 299, 183 S.E.2d at 736.
After Gordon began to run, the officer chased him and saw that
he was still carrying the envelope. Id. During the chase, the
officer never saw Gordon discard the envelope. Id. While the
officer was capturing and arresting Gordon, another officer
found an envelope containing heroin on the route of the chase.
Id. at 299-300, 183 S.E.2d at 736. The arresting officer
testified that the envelope "was the 'same color, size and
shape' as the envelope which he had seen Gordon pick up [and
hold]." Id. at 300, 183 S.E.2d at 736. Although the arresting
officer saw Gordon retrieve and run with an envelope that was
identical to the envelope that contained the drugs, the Supreme
Court held that the trier of fact impermissibly drew an
inference that Gordon had possessed the envelope that was
recovered and had dropped it during the pursuit. Id.
In this case, no evidence proved that Taylor ever possessed
the package containing cocaine or that he dropped it during the
police pursuit. The Commonwealth's evidence failed to negate
the reasonable hypothesis that someone in the group of
spectators who hastily gathered to watch the chase and fight
dropped the package while the officers struggled with Taylor.
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Likewise, the evidence failed to negate the reasonable
hypothesis that someone dropped the package while passing or
watching that location while the officers were questioning
Taylor and the driver in the hotel parking lot. The evidence
proved spectators gathered in several places to watch the
questioning, the chase, and the fight. Indeed, on at least one
occasion the spectators were in such close proximity that an
officer had to tell them to move away. As in Gordon, the
package was found along "the public street on which numerous
persons were gathered." 212 Va. at 301, 183 S.E.2d at 737.
The evidence further proved that the clean empty "zips"
that Taylor possessed could be purchased in various "businesses
in the city that sell these." A police officer testified the
"zips" were often used "for watch parts, jewelry parts for your
necklace, jewelry parts for watches and things like that." He
further testified that the color of the "zips" was not unusual
and that a person could purchase an order of these items "by
that color . . . clear, purple, any color you want. It's not
unusual, no."
In short, the record in this case permits only the bald
assumption that Taylor had the cocaine and dropped it. The
theory of this possession is based on pure speculation and
conjecture; it is not a fact proved beyond a reasonable doubt.
It is well established that "[s]uspicious circumstances,
including proximity to a controlled drug, are insufficient to
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support a conviction." Behrens v. Commonwealth, 3 Va. App. 131,
135, 348 S.E.2d 430, 432 (1986). Likewise, the "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)). "To justify conviction of a crime, it is
insufficient to create a suspicion or probability of guilt."
Moore v. Commonwealth, 254 Va. 184, 186, 491 S.E.2d 739, 740
(1997). As was the case in Gordon, "the fatal gap in the
circumstantial evidence" exists precisely because the
Commonwealth failed to prove Taylor ever possessed the package
they found on the public throughway, and fails to exclude the
reasonable hypothesis that other individuals, who were present
and moving close to watch the spectacle, dropped the contraband.
Absent proof that Taylor possessed the package, the evidence
establishes only that the package with the cocaine was found at
a point along Taylor's escape route -- a fact insufficient to
prove Taylor earlier had possessed and dropped it. Gordon, 212
Va. at 299, 183 S.E.2d at 736.
Because the evidence failed to prove beyond a reasonable
doubt that Taylor ever possessed the package containing the
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cocaine, I would reverse the convictions and dismiss the
indictments.
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