COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Bray and Senior Judge Overton
Argued by teleconference
KEDRA LANAE HARRIS
MEMORANDUM OPINION * BY
v. Record No. 2840-97-1 JUDGE JAMES W. BENTON, JR.
JUNE 22, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
Alfred W. Whitehurst, Judge
Danny S. Shipley for appellant.
Kathleen B. Martin, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
The trial judge convicted Kedra Lanae Harris of possessing
cocaine with the intent to distribute and conspiracy to distribute
cocaine. See Code §§ 18.2-248 and 18.2-256. Harris contends the
evidence was insufficient to convict her of either offense. She
also contends the trial judge erred by granting the Commonwealth's
motion for a continuance during the trial. Because the evidence
was insufficient to prove Harris possessed cocaine with the intent
to distribute and to prove a conspiracy, we reverse the
convictions and dismiss the indictments.
*Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
I.
Whenever an appellant challenges the sufficiency of the
evidence, "we must view all the evidence in the light most
favorable to the Commonwealth and accord to the evidence all
reasonable inferences fairly deducible therefrom." Traverso v.
Commonwealth, 6 Va. App. 172, 176, 366 S.E.2d 719, 721 (1988).
"However, whether a criminal conviction is supported by evidence
sufficient to prove guilt beyond a reasonable doubt is not a
question of fact but one of law." Bridgeman v. Commonwealth, 3
Va. App. 523, 528, 351 S.E.2d 598, 601 (1986).
The evidence proved that on January 13, 14, and 17, 1997,
Officer Reardon sent an informant to purchase illegal drugs in the
house where appellant lived. On each occasion, the informant
entered the house and soon returned with cocaine. While the
informant was making the purchases, Reardon observed numerous
persons walking into the residence and leaving shortly after
entering. Based on these events, the police obtained a search
warrant and searched the house for evidence of drug distribution.
When the police entered the house, they secured "the individuals
inside the house . . . [and] took note of where they were."
Appellant was upstairs in her room with two very young children.
The police recovered a pellet rifle upstairs. However, the record
contains no reference to any other items seized upstairs in the
house.
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In the downstairs area of the house, the police recovered
1.13 grams of cocaine and a pager. Although the record does not
indicate the number of persons present in the house, at least $65
was taken from one individual, who was not appellant. The police
also seized $640, which was on the floor in the downstairs portion
of the house and not claimed by any of the individuals who were
present. In addition, the police found a rifle, 150 small ziploc
bags, which were described as "some packaging material," and a
digital scale outside the residence at the back door. A small
quantity of marijuana was also recovered from the house; however,
the record does not indicate where the marijuana was located.
Officer Reardon found Charles Harris and other individuals in
the downstairs area of the house. Charles Harris was arrested for
possession of cocaine with intent to distribute and conspiracy to
distribute cocaine. The police arrested appellant and charged the
same offenses. After Officer Reardon read appellant Miranda
warnings, appellant responded to Officer Reardon's questioning as
follows:
Q: How long have you lived at [the house]?
A: About four years.
Q: How long have you been selling cocaine
at [the house]?
A: Off and on about 1 to 2 years.
Q: During that time period, how much
cocaine have you sold at [the house]?
A: Less than an ounce.
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Q: What have you done with the monies you
received from selling cocaine?
A: Take care of my children.
Q: Who sells cocaine with you at [the
house]?
A: Charles Harris.
Q: How long have you and Charles been
selling cocaine at [the house]?
A: Off and on for about two weeks.
Q: How much rent do you pay to stay at [the
house]?
A: If my grandma needs a bill to be paid,
I'll try to help her out.
Q: How many children do you have that live
with you at [the house]?
A: Two.
Q: What do you do with the children when
cocaine is being sold and used at [the
house]?
A: They be either with my grandma upstairs
or at my aunt's house.
Q: Who smokes cocaine at [the house]?
A: My uncle and my cousin.
Q: Do you use cocaine?
A: No.
Q: Do you use marijuana?
A: Yes.
Q: How often do you smoke marijuana?
A: Often.
Q: Are you addicted to marijuana?
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A: No.
Q: What do you do with your children when
you smoke marijuana?
A: They don't be around.
Q: When was the last time you sold cocaine
prior to being arrested?
A: About a week.
Q: When was the last time you bought
cocaine?
A: Yesterday.
Q: How much did you buy?
A: About a gram.
Q: What did you do with that cocaine?
A: Gave it to my cousin, Terry Lyles, to
sell.
Officer Reardon testified he did not "receive any
information from [appellant] . . . that she was dealing with
anybody else other than . . . Charles Harris and . . . Terry
Lyles." He also testified that he believed that appellant and
Charles Harris were relatives, but did not know what the
relationship was.
Officer Reardon further testified that he found appellant,
appellant's "belongings, . . . her children and her children's
belongings . . . [in] her bedroom . . . upstairs." Officer
Reardon testified that appellant and her children "all stayed in
the same room, [containing] a few toys and her clothes and their
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clothes." He could not recall whether he found any of
appellant's belongings in other parts of the house.
II.
"Possession with intent to distribute is a crime which
requires 'an act coupled with a specific intent.'" Stanley v.
Commonwealth, 12 Va. App. 867, 869, 407 S.E.2d 13, 15 (1991) (en
banc) (citation omitted). Thus, the principle is well
established "that for a defendant to be convicted of possession
of a controlled substance with the intent to distribute, the
Commonwealth must prove that the defendant possessed the
controlled substance contemporaneously with his [or her]
intention to distribute that substance." Id.
The evidence does not prove who sold cocaine to the
informant. The evidence proved that when the police entered the
house, appellant was in the room she rented upstairs. No
cocaine was recovered from appellant's person or immediate
presence. The evidence also proved that the police arrested
other individuals downstairs, where the police found 1.13 grams
of cocaine. Charles Harris, who had been selling cocaine from
the house, was arrested when the police entered the house.
Appellant's presence in the house where she rented a room is
insufficient to prove beyond a reasonable doubt that she
possessed the cocaine the police seized in the house. See
Clodfelter v. Commonwealth, 218 Va. 619, 623, 238 S.E.2d 820,
822 (1977). In order to prove that appellant constructively
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possessed the cocaine, the Commonwealth was required to prove
facts and circumstances that indicated that she was aware of the
presence of cocaine and exercised dominion and control over it.
See Drew v. Commonwealth, 230 Va. 471, 473, 338 S.E.2d 844, 845
(1986). Moreover, in order for circumstantial evidence to prove
guilt beyond a reasonable doubt, it must be wholly consistent
with guilt and wholly inconsistent with innocence. See Bishop
v. Commonwealth, 227 Va. 164, 169, 313 S.E.2d 390, 393 (1984).
Although appellant knew that Charles Harris sold cocaine,
and appellant had sold cocaine in the past, that evidence does
not prove that she exercised dominion over any cocaine Charles
Harris possessed. No evidence proved that appellant had given
the cocaine to Charles Harris. The officer testified that he
believed that Charles Harris was appellant's brother but was not
certain of their relationship. Furthermore, appellant did not
own the house. Although she was a lessee, the evidence did not
prove whether she leased more than the room she occupied. The
officer testified that her "belongings" and her children's
"belongings" were in her bedroom. He could not recall whether
she had "belongings" in other parts of the house. The statement
that the officer took from appellant indicated that appellant's
grandmother, uncle, and cousin also had some connection to the
house.
"While a conviction may properly be based upon
circumstantial evidence, suspicion or even probability of guilt
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is not sufficient." Craig v. Commonwealth, 215 Va. 260, 261,
208 S.E.2d 744, 745 (1974). "Suspicious circumstances,
including proximity to a controlled drug, are insufficient to
support a conviction." Behrens v. Commonwealth, 3 Va. App. 131,
135, 348 S.E.2d 430, 432 (1986). Here, only suspicious
circumstances connect appellant to the cocaine found in the
downstairs area of the house where Charles Harris was arrested.
III.
To convict an accused of conspiring to distribute a
controlled substance, the Commonwealth must prove beyond a
reasonable doubt not only that two or more persons intended to
distribute the controlled substance, but "that the two were
acting in concert." Jones v. Commonwealth, 11 Va. App. 75, 82,
396 S.E.2d 844, 848 (1990). There must be some showing that an
agreement existed between the parties. See Fortune v.
Commonwealth, 12 Va. App. 643, 647, 406 S.E.2d 47, 48-49 (1991).
However, an agreement "to distribute drugs cannot be inferred"
from mere "[p]roof that two persons possessed drugs in the same
dwelling." Jones, 11 Va. App. at 82, 396 S.E.2d at 848.
Although the arrest warrant charged appellant with
"conspir[ing] with Charles Harris to sell cocaine," the
indictment more generally charged that "between January 1, 1997
and January 16, 1997, in the City of Norfolk, . . . [appellant]
did unlawfully and feloniously conspire . . . to distribute
cocaine." The Commonwealth argues that appellant's admission
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that she and Charles Harris sold cocaine from the residence "off
and on for about two weeks," proved a conspiracy. Further, the
Commonwealth argues that appellant's statement that she bought a
gram of cocaine the day before her arrest and gave it to her
cousin to sell supports the conspiracy conviction.
The evidence fails to prove beyond a reasonable doubt that
appellant participated in a conspiracy to distribute cocaine
during that period in the City of Norfolk. Although appellant's
statement proved that both she and Charles Harris sold cocaine
from the house, proof of an agreement was not established beyond
a reasonable doubt. Proof that two individuals sold drugs from
the same house, "standing alone, does not constitute a
conspiracy . . . [because] evidence of a distribution offense
absent an agreement will not suffice to support a conspiracy
conviction." Zuniga v. Commonwealth, 7 Va. App. 523, 528, 375
S.E.2d 381, 385 (1988). The evidence does not exclude the
reasonable hypothesis that appellant and Charles Harris sold
cocaine independent of each other, although from the same
residence. No evidence proved that the distributions were the
product of "'an agreement between [appellant and Charles Harris]
. . . by some concerted action to commit an offense of
distribution.'" Heacock v. Commonwealth, 228 Va. 397, 407, 323
S.E.2d 90, 96 (1984) (citation omitted). As we have previously
stated, "[t]he agreement is the essence of the conspiracy
offense." Zuniga, 7 Va. App. at 527-28, 375 S.E.2d at 384.
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Absent evidence of an agreement between appellant and Charles
Harris, the prosecution must fail.
Furthermore, appellant's statement to Officer Reardon that
she recently provided cocaine to Terry Lyles to sell does not
support proof of a conspiracy in Norfolk. No evidence proved
where that distribution or agreement occurred. No inference
arising from the cocaine recovered by the police from the
portion of the house where Charles Harris was found, which is
the basis for the prosecution, can, by itself, prove the
conspiracy. See Jones, 11 Va. App. at 82, 396 S.E.2d at 848.
No evidence connects that cocaine to Lyles or to appellant.
For these reasons, we reverse the convictions and dismiss
the indictments. We need not address the continuance issue.
Reversed and dismissed.
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