COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Bumgardner and Frank
Argued at Chesapeake, Virginia
DERRICK ANTONIO WILLIAMS
MEMORANDUM OPINION * BY
v. Record No. 0393-01-1 JUDGE RUDOLPH BUMGARDNER, III
FEBRUARY 5, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
Von L. Piersall, Jr., Judge
Charles B. Lustig, Assistant Public Defender
(Brenda C. Spry, Deputy Public Defender, on
brief), for appellant.
Susan M. Harris, Assistant Attorney General
(Randolph A. Beales, Attorney General, on
brief), for appellee.
The trial court convicted Derrick Antonio Williams of
possession of heroin in violation of Code § 18.2-250. He
challenges the sufficiency of the evidence. Finding no error,
we affirm.
Examining the evidence in the light most favorable to the
Commonwealth, Officer L.A. Stokes was walking toward the
defendant as the defendant emerged from behind a dumpster. They
were facing each other and approximately ten yards apart. The
defendant dropped a yellow baggie from his hand when he made eye
contact with Stokes. Stokes walked directly to the baggie. The
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
defendant looked at him, then changed direction, and walked away
at an accelerating pace. Stokes retrieved an M&M baggie that
contained "numerous clear capsules containing a white powder
which [Stokes] believed to be heroin."
Stokes looked for the defendant but could not find him. He
recognized the defendant's face from prior contact with him but
did not know his name. Stokes processed the baggie without the
defendant's name, stored it in a locker in the property and
evidence room, and waited until he encountered the defendant
again. Nine days later, Stokes saw the defendant and arrested
him for having possessed the M&M baggie of heroin. Stokes
re-packaged the M&M baggie to add the defendant's name to the
data. It was mailed to the laboratory for analysis.
"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 894, 899
(1994) (citation omitted). Proof of actual possession gives
rise to the inference that the possessor is the owner and knows
its character. Hamilton v. Commonwealth, 16 Va. App. 751, 754,
433 S.E.2d 27, 29 (1993). The court may also consider the
defendant's "acts, declarations, or conduct" in determining his
knowledge. Hairston v. Commonwealth, 5 Va. App. 183, 186, 360
S.E.2d 893, 895 (1987); Johnson v. Commonwealth, 12 Va. App.
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150, 153, 402 S.E.2d 502, 504 (1991) (flight may be considered
consciousness of guilt).
Upon seeing Officer Stokes, the defendant dropped a yellow
M&M baggie, quickened his pace, and disappeared. Stokes
recognized the defendant, though he did not know his name. He
immediately retrieved the bag, which contained heroin. Nine
days later, Stokes saw the defendant, identified him as the man
who dropped the baggie, and arrested him. From his actual
possession, the trial court could reasonably infer the defendant
intentionally and knowingly possessed the heroin. "Numerous
decisions have affirmed convictions for possession of narcotic
drugs resting on proof that a defendant was observed dropping or
throwing away an identifiable object which, when subsequently
recovered, was found to contain narcotics." Gordon v.
Commonwealth, 212 Va. 298, 300, 183 S.E.2d 735, 737 (1971)
(conviction reversed where officer did not see defendant discard
envelope) (citations omitted).
The defendant objected to the admission of the certificate
of analysis alleging a break in the chain of custody. He
asserted that an unaccounted for person must have had access to
the evidence locker. "[T]here's someone else out there who had
a key . . . and access to the locker . . . and the Commonwealth
has not put that person on to . . . establish the chain [of
custody]." The trial court overruled the objection and admitted
the exhibits. The defendant did not appeal the admission of the
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certificate of analysis. He now raises the same contention as
part of his challenge to the sufficiency of the evidence. The
argument was not made as part of his motion to strike, and we
will not consider it separately now. Buck v. Commonwealth, 247
Va. 449, 452-53, 443 S.E.2d 414, 416 (1994) (appellate court
will not consider an argument on appeal different from one
raised at trial even if it is related to the same issue).
Accordingly, credible evidence proved beyond a reasonable
doubt that the defendant intentionally and knowingly possessed
the heroin.
Affirmed.
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