COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Frank and Clements
Argued at Chesapeake, Virginia
NOEL JONES
MEMORANDUM OPINION * BY
v. Record No. 1991-00-1 JUDGE RICHARD S. BRAY
NOVEMBER 6, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE
Bruce H. Kushner, Judge
Monte E. Kuligowski for appellant.
Jennifer R. Franklin, Assistant Attorney
General (Randolph A. Beales, Attorney
General, on brief), for appellee.
Noel Jones (defendant) was convicted in a bench trial for
possession of cocaine, a violation of Code § 18.2-250. On appeal,
he contends the evidence was insufficient to support the
conviction. We agree and reverse the trial court.
The parties are fully conversant with the record, and this
memorandum opinion recites only those facts necessary to a
disposition of the appeal.
In reviewing the sufficiency of the evidence, we examine the
record in "the light most favorable to the Commonwealth, granting
to it all reasonable inferences fairly deducible therefrom."
Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
(1987). The credibility of witnesses, the weight accorded
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 judgment of a trial court will be disturbed on appeal only if
plainly wrong or unsupported by the evidence. See Code
§ 8.01-680.
I.
The facts are substantially uncontroverted. At approximately
4:00 a.m. on December 4, 1999, Chesapeake Police Officer B.W.
Shearin observed an automobile turn unlawfully "through a red
light." Shearin activated his "emergency equipment" and stopped
the vehicle. The driver and sole passenger, seated beside him,
identified themselves to Shearin as Omar Wilson and defendant,
respectively.
Further investigation at the scene disclosed that Wilson was
"wanted for malicious wounding." However, before Shearin could
effect an arrest, Wilson "began to drive off," with Shearin in
pursuit. During the ensuing "high-speed chase," "through stop
signs and everything," Shearin observed "a baggy [sic]," followed
immediately by "a firearm," "come out of the passenger's side of
the vehicle." Although the "area was lit," Shearin did not notice
Wilson "make any motions or gestures . . . toward anything but
driving the vehicle," "couldn't see hand movements from either
party," "just saw the items come out." Defendant, however,
- 2 -
testified he had "seen [Wilson] flinging something out the window"
after defendant had "rolled the window down a little bit" at
Wilson's request.
Shearin, with the assistance of other police officers, soon
stopped the vehicle, and defendant "fled on foot . . . into the
woods," only to be apprehended within "a minute or so, two
minutes." With both Wilson and defendant in custody, Shearin
returned to "the area where the first object was thrown out the
window" and recovered "a baggy [sic] of powdered substance," later
identified as 13.3 grams of cocaine, and a "Virginia Power bill
with the name Omar Wilson, right in the same vicinity, right
beside the . . . cocaine." A search of defendant by Shearin
revealed "nothing," but Wilson possessed $1,850 in cash. A search
of the car disclosed additional cocaine "under the hood." 1
II.
To support a conviction based on
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)
(quoting Powers v. Commonwealth, 227 Va. 474, 476, 316 S.E.2d 739,
740 (1984)). "[T]he possession need not always be exclusive. The
1
The instant record further discloses that Wilson
previously "pled guilty" to "these charges."
- 3 -
defendant may share [the drugs] with one or more. The duration of
the possession is immaterial and need not always be actual
possession." Ritter v. Commonwealth, 210 Va. 732, 741, 173 S.E.2d
799, 806 (1970). "Although mere proximity to the drugs is
insufficient to establish possession, and occupancy of [a] vehicle
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).
Where "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) (quoting Inge v. Commonwealth, 217
Va. 360, 366, 228 S.E.2d 563, 567 (1976)). "The 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). "Whether a hypothesis of innocence is
reasonable is a question of fact, and a finding by the trial court
is binding unless plainly wrong." Glasco v. Commonwealth, 26
Va. App. 763, 774, 497 S.E.2d 150, 155 (1998) (citation omitted).
Here, defendant was the passenger in the vehicle operated by
another, Wilson, when Wilson fled from police immediately
following a lawful stop. During the chase, drugs, a weapon, and a
- 4 -
"bill" personal to Wilson were discarded from the passenger
window, although no attendant "hand movements from either party"
were observed by Officer Shearin. Once the car was again stopped
by police, defendant fled but was immediately apprehended and
returned to the scene. No drugs, related paraphernalia or other
contraband were found on defendant's person, but Wilson possessed
considerable cash, and additional cocaine was secreted outside the
passenger compartment of the vehicle.
Thus, in support of the instant conviction, the evidence
proved little more than defendant was present in an automobile
controlled by Wilson and fled from police following the second
stop. While defendant admittedly lowered the window at Wilson's
direction, the evidence does not establish he was aware Wilson
intended to toss cocaine and a firearm from the speeding vehicle.
No drugs were found on defendant's person, but additional
contraband was hidden "under the hood" of the car, in Wilson's
control. Such evidence clearly supports the reasonable hypothesis
that the offending cocaine belonged exclusively to Wilson and was
present in the automobile without defendant's knowledge and free
of his dominion and control.
Accordingly, the evidence was insufficient to prove defendant
guilty of the subject offense beyond a reasonable doubt, and we
reverse the conviction.
Reversed and dismissed.
- 5 -