COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, Clements and Senior Judge Coleman
Argued at Richmond, Virginia
KEVIN E. GRAY
MEMORANDUM OPINION * BY
v. Record No. 0669-00-2 JUDGE JEAN HARRISON CLEMENTS
MAY 1, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
James B. Wilkinson, Judge
Christopher C. Booberg (Theodore Tondrowski;
Thorsen, Marchant & Scher, L.L.P., on brief),
for appellant.
Leah A. Darron, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Kevin E. Gray was convicted in a bench trial of possession of
heroin in violation of Code § 18.2-250. On appeal, he contends
the evidence was not sufficient to sustain the conviction. We
disagree and affirm the conviction.
As the parties are fully conversant with the record in this
case and because this memorandum opinion carries no precedential
value, this opinion recites only those facts necessary to a
disposition of this appeal.
When the sufficiency of the evidence is challenged on appeal,
we review the evidence "in the light most favorable to the
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
Commonwealth, granting to it all reasonable inferences fairly
deducible therefrom." Bright v. Commonwealth, 4 Va. App. 248,
250, 356 S.E.2d 443, 444 (1987). We may not disturb the
conviction unless it is plainly wrong or unsupported by the
evidence. Sutphin v. Commonwealth, 1 Va. App. 241, 243, 337
S.E.2d 897, 898 (1985). We are further mindful that the
"credibility of a witness, the weight accorded the testimony, and
the inferences to be drawn from proven facts are matters solely
for the factfinder's determination." Keyes v. City of Virginia
Beach, 16 Va. App. 198, 199, 428 S.E.2d 766, 767 (1993).
Gray claims that the Commonwealth failed to prove beyond a
reasonable doubt that he constructively possessed heroin.
Specifically, he argues that the evidence presented at trial was
insufficient to show that he was aware of the presence and
character of the heroin or that he exercised dominion or control
over it. Furthermore, he adds, no drugs were found on him or in
his room, and he made no statements acknowledging the presence of
the heroin, which was found in the kitchen with a codefendant.
Thus, he concludes, the Commonwealth's evidence, which was merely
circumstantial, did not exclude every reasonable hypothesis except
that of guilt.
To convict Gray of possession of heroin, the Commonwealth
must prove that he was aware of the presence and character of the
particular drug and was intentionally and consciously in
possession of it. Ritter v. Commonwealth, 210 Va. 732, 741, 173
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S.E.2d 799, 805 (1970). It is not required that actual possession
of the drug be proved. "[P]ossession of drugs may be actual or
constructive. Constructive possession may be established by
"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 the 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).
Mere proximity to an illegal drug is insufficient to
establish possession but is a factor that may be considered.
Walton v. Commonwealth, 255 Va. 422, 426, 497 S.E.2d 869, 871
(1998). Occupancy of the premises where the illegal drug is found
is another factor that may be considered. Id. Possession need
not be exclusive but may be shared. See Gillis v. Commonwealth,
215 Va. 298, 301-02, 208 S.E.2d 768, 771 (1974) (noting that
occupancy of premises as a co-tenant is a factor to be considered
with other evidence in determining whether a defendant had
constructive possession). Thus, in resolving the issue of
constructive possession, "the Court must consider 'the totality of
the circumstances disclosed by the evidence.'" Archer v.
Commonwealth, 26 Va. App. 1, 12, 492 S.E.2d 826, 832 (1997)
(quoting Womack v. Commonwealth, 220 Va. 5, 8, 255 S.E.2d 351, 353
(1979)).
"Proof of constructive possession necessarily rests on
circumstantial evidence; thus, 'all necessary circumstances proved
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must be consistent with guilt and inconsistent with innocence and
exclude every reasonable hypothesis of innocence.'" Burchette v.
Commonwealth, 15 Va. App. 432, 434, 425 S.E.2d 81, 83 (1992)
(quoting Garland v. Commonwealth, 225 Va. 182, 184, 300 S.E.2d
783, 784 (1983) (internal quotations omitted)). "However, 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 an alternative
hypothesis of innocence is reasonable is a question of fact and,
therefore, is binding on appeal unless plainly wrong." Archer, 26
Va. App. at 12-13, 492 S.E.2d at 832 (citations omitted). "While
no single piece of evidence may be sufficient, the 'combined force
of many concurrent and related circumstances, each insufficient in
itself, may lead a reasonable mind irresistibly to a conclusion.'"
Stamper v. Commonwealth, 220 Va. 260, 273, 257 S.E.2d 808, 818
(1979) (quoting Karnes v. Commonwealth, 125 Va. 758, 764, 99 S.E.
562, 564 (1919)).
Here the evidence established that Officers Michael
Musselwhite, Matt Cavanaugh, and Mark Lewis of the Richmond Police
Department were conducting surveillance of 1743 Southlawn Avenue
in Richmond. Based on their observations, a search warrant for
the residence was issued. On June 10, 1999, Officer Lewis
executed the warrant. After knocking on the back door and getting
no answer, he entered the premises and saw an individual, not
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Gray, sitting at the kitchen table. The police then found in
plain view $79 and residue on the kitchen table, a crack pipe
containing residue on the kitchen floor, and sandwich baggies
containing four razor blades with heroin residue on them on top of
the refrigerator.
Gray was found sitting in the den area behind the kitchen.
He told Lewis that "it was his girlfriend's place" and that "he
had been staying there." Gray also told Lewis that "he was a
heroin user and did not deal drugs." Lewis found $270 in a pair
of Gray's shorts in the back bedroom.
In light of the fact that Gray resided in the home where the
heroin was found; Gray was an admitted heroin user; the heroin
residue and other drug paraphernalia were found in plain view in
the kitchen, a room of common access and use within the home; and
Gray was found in a room near the kitchen, we conclude that the
trial judge could find beyond a reasonable doubt from the totality
of these circumstances that Gray knew of the presence and
character of the heroin and that he intentionally and consciously
had constructive possession of it. Hence, we hold that the
evidence presented in this case sufficiently supports appellant's
conviction for possession of heroin and that the conviction is not
plainly wrong.
Accordingly, we affirm the conviction.
Affirmed.
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