COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Willis and Bumgardner
Argued at Richmond, Virginia
COREY EVANDER JOHNSON
MEMORANDUM OPINION * BY
v. Record No. 2023-00-2 JUDGE RUDOLPH BUMGARDNER, III
AUGUST 7, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
Buford M. Parsons, Jr., Judge Designate
Douglas A. Ramseur (Bowen, Bryant, Champlin &
Carr, on brief), for appellant.
Marla Graff Decker, Assistant Attorney
General (Mark L. Earley, Attorney General;
John H. McLees, Jr., Senior Assistant
Attorney General, on brief), for appellee.
The trial court convicted Corey Evander Johnson of
possession of marijuana, possession of cocaine with intent to
distribute, possession of heroin with intent to distribute, and
of driving under the influence. He appeals only the cocaine and
heroin convictions arguing the evidence was insufficient to
prove that he knowingly and intentionally possessed cocaine or
heroin, or that he intended to distribute them. Concluding the
evidence permitted those findings, we affirm.
Officer Jonathan Mondrey stopped the defendant at 2:21 a.m.
for speeding 114 miles per hour. No one else was in the car,
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
and the officer smelled alcohol coming from the vehicle as he
approached it. After conducting field sobriety tests, the
officer arrested the defendant for driving under the influence.
Following the arrest, the officer searched the defendant's
car. As he opened the driver's door, the officer saw what he
believed to be a plastic bag of marijuana. It was "sticking up
out of the pocket" of the driver's door. The pocket had a
spring-loaded lid which could not fully close because the bag of
marijuana was protruding from it. The officer found more drugs
in the same compartment once he removed the marijuana. A small
corner baggie contained a white substance, which the officer
believed was cocaine. That baggie also contained three smaller
corners of crack cocaine. A cigar case broken in half contained
eighteen individually wrapped baggies of crack cocaine in one
half and seven aluminum foil packets of heroin and a baggie
corner of heroin in the other half.
"On appeal, 'we review the evidence in the light most
favorable to the Commonwealth, granting to it all reasonable
inferences fairly deducible therefrom.'" Archer v.
Commonwealth, 26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997)
(citation omitted). The marijuana was plainly visible, sticking
out of the pocket of the door whenever that door was opened.
The defendant was the driver and would have opened that door
when he entered the car. If the marijuana was immediately
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visible to the officer upon opening the door, it would have been
visible to the defendant when he opened the door.
When the door was closed, the compartment was immediately
adjacent and accessible to the driver. It was, and was designed
to be, a convenient place for the driver to secure items. The
defendant was both driver and sole occupant. No evidence
suggested anyone else had access to the car or the compartment.
An accused's presence in a vehicle "where illicit drugs were
discovered is a circumstance that may be considered together
with other evidence tending to prove" that he "exercised
dominion and control over items in the vehicle . . . in order to
prove that [he] constructively possessed the contraband."
Burchette v. Commonwealth, 15 Va. App. 432, 435, 425 S.E.2d 81,
83 (1992) (citation omitted). The evidence permits the
reasonable conclusion that the defendant either put the
marijuana in the pocket himself or saw it and knew of it.
The evidence also permits the reasonable conclusion that
the cocaine and heroin were linked with the marijuana and all
part of one cache. The drugs were carelessly stuffed in the
pocket so they spilled out and remained easily visible because
the lid could not close. The manner and place of secreting the
drugs permitted the inference that one individual had used that
compartment to stash a single hoard of drugs. "Furthermore,
proof that a person is in close proximity to contraband is a
relevant fact that, depending on the circumstances, may tend to
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show that . . . [as the car's sole occupant, the defendant]
necessarily knows of the presence, nature, and character of a
substance that is found there." Id. See Hamilton v.
Commonwealth, 16 Va. App. 751, 754, 433 S.E.2d 27, 28 (1993)
(defendant's proximity to drugs and occupancy in car are factors
to consider).
Constructive possession of illegal contraband "may be
established by . . . 'facts or circumstances which tend to show
that the defendant was aware of both the presence and the
character of the substance and that it was subject to his
dominion and control.'" Logan v. Commonwealth, 19 Va. App. 437,
444, 452 S.E.2d 364, 368-69 (1994) (en banc) (citation omitted).
We conclude the evidence sufficiently proves beyond a reasonable
doubt that the defendant possessed the marijuana, cocaine, and
heroin in the pocket of the driver's door.
Circumstantial evidence is often necessary to prove a
person's intent to distribute. "Such evidence may include the
quantity of drugs and cash possessed and whether appellant used
drugs." Welshman v. Commonwealth, 28 Va. App. 20, 37, 502
S.E.2d 122, 130 (1998) (en banc) (citation omitted). The
Commonwealth presented evidence that the amount and packaging of
the cocaine and heroin were inconsistent with personal use. The
officer did not find any devices used to ingest cocaine or
heroin. "[T]he absence of paraphernalia suggestive of personal
use . . . [is] regularly recognized as [a] factor[] indicating
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an intent to distribute." Id. (citation omitted). The variety
of packaged drugs was consistent with an inventory for sale
rather than a supply for personal use. A reasonable conclusion
from the evidence was that the defendant possessed the
assortment of drugs for distribution.
The expert witness conceded that the lack of a pager,
cellular phone, scales, or cash could suggest personal use.
However, the finder of fact resolves conflicts in the evidence
and from that evidence draws the inferences. "The fact finder,
who has the opportunity to see and hear the witnesses, has the
sole responsibility to determine their credibility, the weight
to be given their testimony, and the inferences to be drawn from
proven facts." Commonwealth v. Taylor, 256 Va. 514, 518, 506
S.E.2d 312, 314 (1998) (citations omitted). "If there is
evidence to support the conviction, the reviewing court is not
permitted to substitute its judgment, even if its view of the
evidence might differ from the conclusions reached by the finder
of fact at the trial." Id. (citations omitted).
The evidence was sufficient to prove beyond a reasonable
doubt that the defendant was guilty of possession of cocaine
with intent to distribute and of possession of heroin with
intent to distribute. Accordingly, we affirm the convictions.
Affirmed.
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Benton, J., dissenting.
To prove beyond a reasonable doubt that an accused
constructively possessed a controlled substance, "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 his
dominion and control." Powers v. Commonwealth, 227 Va. 474,
476, 316 S.E.2d 739, 740 (1984). Furthermore, Code § 18.2-250
could not be clearer: "Upon the prosecution of a person [for
possession of a controlled substance], ownership or occupancy of
. . . [a] vehicle upon or in which a controlled substance was
found shall not create a presumption that such person either
knowingly or intentionally possessed such controlled substance."
[W]ell established principles apply to
testing the sufficiency of circumstantial
evidence. . . .
"[I]f the proof relied upon by the
Commonwealth is wholly circumstantial, as it
here is, then to establish guilt beyond a
reasonable doubt all necessary circumstances
proved must be consistent with guilt and
inconsistent with innocence. They must
overcome the presumption of innocence and
exclude all reasonable conclusions
inconsistent with that of guilt. To
accomplish that, the chain of necessary
circumstances must be unbroken and the
evidence as a whole must satisfy the guarded
judgment that both the corpus delicti and
the criminal agency of the accused have been
proved to the exclusion of any other
rational hypothesis and to a moral
certainty."
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But, circumstances of suspicion, no
matter how grave or strong, are not proof of
guilt sufficient to support a verdict of
guilty. The actual commission of the crime
by the accused must be shown by evidence
beyond a reasonable doubt to sustain his
conviction.
Clodfelter v. Commonwealth, 218 Va. 619, 623, 238 S.E.2d 820,
822 (1977) (citations omitted).
No evidence proved that the car Corey Evander Johnson was
driving was his. No evidence proved that he knew the controlled
substances were in the partially closed compartment on the car's
door. No evidence proved he could see in the nighttime the
plastic bag that protruded from the compartment. The evidence
proved only his proximity to the substances. "Evidence merely
that the accused was in the proximity of controlled substances
is insufficient . . . to prove that the accused was aware of the
presence and character of a controlled substance." Jones v.
Commonwealth, 17 Va. App. 572, 574, 439 S.E.2d 863, 864 (1994).
Inferences that are drawn from suspicious circumstances
alone are not sufficient to prove knowing possession of a
controlled substance. Even if it is probable that the
controlled substances in the car belonged to Johnson,
probability of guilt is insufficient to warrant a criminal
conviction. Crisman v. Commonwealth, 197 Va. 17, 21, 87 S.E.2d
796, 799 (1955). Suspicious circumstances "'no matter how grave
or strong, are not proof of guilt sufficient to support a
verdict of guilty. The actual commission of the crime by the
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accused must be shown by evidence beyond a reasonable doubt to
sustain his conviction.'" Id. (quoting Powers v. Commonwealth,
182 Va. 669, 676, 30 S.E.2d 22, 25 (1944)).
Furthermore, the Commonwealth's evidence proved that the
quantity of controlled substances found in the car could be
consumed by a single user of narcotics over several days.
Except for inferences drawn from that quantity, the record
contains no evidence of an intent to distribute. Those
inferences, however, do not exclude every reasonable hypothesis
of innocence and, therefore, fail to prove intent to distribute.
Clodfelter, 218 Va. at 623, 238 S.E.2d at 822.
For these reasons, I would reverse the convictions and
dismiss the indictments.
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Corey Evander Johnson v. Commonwealth of Virginia
Combined Opinion