COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Lemons and Senior Judge Cole
Argued at Richmond, Virginia
REGINALD D. HAYSPELL, SOMETIMES KNOWN AS
REGINALD DARRELL HAYSPELL
MEMORANDUM OPINION * BY
v. Record No. 2541-97-2 JUDGE DONALD W. LEMONS
FEBRUARY 9, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF BRUNSWICK COUNTY
James A. Luke, Judge
H. Benjamin Vincent (Vincent Law Firm, on
brief), for appellant.
Linwood T. Wells, Jr., Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Reginald Darrell Hayspell appeals his convictions for
possession of cocaine and possession of marijuana with intent to
distribute. On appeal, he argues that the evidence was
insufficient to support his convictions. We disagree and affirm
both convictions.
BACKGROUND
On December 4, 1996, members of the Meherrin Drug Task Force
in the Brunswick County Sheriff's Department, including
Investigator Anthony Gibbs, executed a search warrant at a
residence owned by the parents of Reginald D. Hayspell,
appellant. The search warrant instructed Gibbs to search
Hayspell's person as well as his parents' residence.
*
Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
When Gibbs entered the residence, he saw Hayspell and his
mother walking down the stairs. Hayspell's sister, aunt and a
male cousin were also present, and his father arrived during the
execution of the warrant. Gibbs climbed the stairs and entered a
bedroom, the only room on the left side of the hallway. Gibbs
observed a dresser, a nightstand, a baby crib, a shoebox located
by the doorway, men's shoes, jewelry including a "men's fashion
type" gold chain, and men's clothing. On the dresser, Gibbs
noticed crack cocaine lying in plain view. On the nightstand
next to the bed, Gibbs saw a class ring engraved with the name
"Reginald" on the outside, and a "financial binder" with some
forms and documents. In the shoebox located by the door
approximately six feet from the nightstand and dresser, Gibbs
found marijuana and electronic scales. Gibbs testified that the
scales were of the type used to weigh narcotics.
After the marijuana was discovered, Hayspell's cousin stated
to Gibbs that it belonged to him. Gibbs stated that Hayspell's
cousin was taken to the sheriff's office, where he recanted his
admission stating that he would "not tak[e] the blame for nobody"
and that "he was told to take the blame." On August 28, 1997,
Hayspell was found guilty in a bench trial of possession of
cocaine and possession of marijuana with intent to distribute.
SUFFICIENCY OF THE EVIDENCE
"When the sufficiency of the evidence is an issue on appeal,
an appellate court must view the evidence and all reasonable
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inferences fairly deducible therefrom in the light most favorable
to the Commonwealth." Cheng v. Commonwealth, 240 Va. 26, 42, 393
S.E.2d 599, 608 (1990) (citing Stockton v. Commonwealth, 227 Va.
124, 145-46, 314 S.E.2d 371, 385 (1984)). On appeal, the
decision of a trial court sitting without a jury is afforded the
same weight as a jury's verdict and will not be disturbed unless
plainly wrong or without evidence to support it. King v.
Commonwealth, 217 Va. 601, 604, 231 S.E.2d 312, 315 (1977).
To prove ownership of a controlled substance, the
Commonwealth may prove either actual or constructive possession.
See Barlow v. Commonwealth, 26 Va. App. 421, 494 S.E.2d 901
(1998); White v. Commonwealth, 24 Va. App. 446, 452, 482 S.E.2d
876, 879 (1997) (citations omitted).
To establish "possession" in the legal sense,
it is not sufficient to simply show actual or
constructive possession of the drug by the
defendant. The Commonwealth must also
establish that the defendant intentionally
and consciously possessed it with knowledge
of its nature and character.
Burton v. Commonwealth, 215 Va. 711, 713, 213 S.E.2d 757, 758-59
(1975) (citations omitted). "Knowledge of the presence and
character of the controlled substance may be shown by evidence of
the acts, statements or conduct of the accused." Eckhart v.
Commonwealth, 222 Va. 447, 450, 281 S.E.2d 853, 855 (1981).
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
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dominion and control.
Glasco v. Commonwealth, 26 Va. App. 763, 774, 497 S.E.2d 150, 155
(1998) (citations omitted).
Although proximity alone is insufficient to establish
possession, it may be considered as a factor in determining if a
defendant possessed narcotics. See Glasco, 26 Va. App. at 774,
497 S.E.2d at 155; Anderson v. Commonwealth, 26 Va. App. 1, 12,
492 S.E.2d 826, 832 (1997). The fact finder must look to the
"totality of the circumstances" in its determination of whether
the accused constructively possessed the object in question. See
Glasco, 26 Va. App. at 774, 497 S.E.2d at 155.
In Spivey v. Commonwealth, 23 Va. App. 715, 479 S.E.2d 543
(1997), the defendant appealed her convictions for possession of
narcotics and possession of narcotics with intent to distribute,
arguing in part that the evidence was insufficient to prove
possession. The trial court's consideration of the "totality of
the circumstances disclosed by the evidence" included:
(1) The defendant ran from the living room
to the kitchen as police entered the home.
(2) "Contemporary documents, personal to the
defendant and addressed to the subject
premises, were discovered on a desk in the
living room, together with cocaine."
(3) A "big piece" of crack cocaine was
visible "in plain view on a dresser located
in a bedroom, together with woman's clothing,
underwear, and jewelry."
(4) Numerous bags of marijuana were
discovered in the bedroom, living room, and
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kitchen.
Id. at 725, 479 S.E.2d at 548. Holding that "[t]he only
reasonable hypothesis arising from such evidence is that
defendant constructively possessed the cocaine and marijuana
found in plain view and stashed throughout her residence, aware
of the nature and character of the drugs," we affirmed her
convictions. Id. at 725, 479 S.E.2d at 548.
In Shurbaji v. Commonwealth, 18 Va. App. 415, 444 S.E.2d 549
(1994), the defendant appealed his conviction for possession of
cocaine with intent to distribute, arguing in part that the
evidence was insufficient to prove that he constructively
possessed cocaine. The defendant denied that he resided in the
house, and argued that the Commonwealth was precluded from
proving possession because he was not present during the search.
In Shurbaji, the Commonwealth's case of constructive
possession was necessarily based on circumstantial evidence. See
id. at 423, 444 S.E.2d at 553. We noted that "[c]ircumstantial
evidence is as competent and is entitled to as much weight as
direct evidence, provided it is sufficiently convincing to
exclude every reasonable hypothesis except that of guilt." Id.
at 423, 444 S.E.2d at 553 (citations omitted). We examined the
evidence considered by the fact finder in Shurbaji's case:
(1) that the defendant often paid the
mortgage on the residence and was usually at
the residence early in the morning;
(2) solely men's clothing found in the
master bedroom, and the defendant's sister's
testimony that he kept personal belongings
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there;
(3) his sister's testimony that he
"periodically stayed overnight and slept in
the master bedroom";
(4) "in plain view or on readily accessible
dresser drawers and night stands, the police
found a significant amount of cocaine and
drug paraphernalia," along with the
defendant's passport, his wallet containing
his credit and bank cards, personal checks
signed by him, and "current personal papers
and envelopes addressed to him at the
searched residence";
(5) a jacket in the closet which contained a
prescription bottle bearing his name, and a
"snow-seal" filled with cocaine powder;
(6) the presence of the key to a safety
deposit box registered in the defendant's
name, and used solely by him;
(7) and "nothing in the room [to] indicate[]
that anyone other than the [defendant] had
any interest in the items found."
Id. at 424, 444 S.E.2d at 554.
In affirming his conviction, we held, "[w]e agree with the
Commonwealth that the evidence in this case clearly proved that
[Shurbaji] owned and constructively possessed the cocaine and
paraphernalia seized by the police from the master bedroom of the
residence, and that such possession was with the intent to
distribute." Id. at 424, 444 S.E.2d at 554.
In support of his argument that the Commonwealth failed to
prove that he constructively possessed the cocaine found in the
bedroom, Hayspell cites Torian v. Commonwealth, No. 1770-96-2
(Va. Ct. App. May 27, 1997), and Norton v. Commonwealth, No.
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1897-95-2 (Va. Ct. App. June 25, 1996) (two unpublished opinions
of this Court); Burchette v. Commonwealth, 15 Va. App. 432, 425
S.E.2d 81 (1992); Drew v. Commonwealth, 230 Va. 471, 338 S.E.2d
844 (1986); Behrens v. Commonwealth, 3 Va. App. 131, 348 S.E.2d
430 (1986); Garland v. Commonwealth, 225 Va. 182, 300 S.E.2d 783
(1983); and Clodfelter v. Commonwealth, 218 Va. 619, 230 Va. 471
(1977). However, each may be distinguished from the instant
case. In Clodfelter, Norton and Behrens, each defendant was
convicted of possession of narcotics in a rented hotel room
rather than where any one of the defendants resided. In each of
these three cases, the defendant's conviction was reversed
because the reviewing court held that there was insufficient
evidence for the trial court to find that drugs found in the
hotel rooms were constructively possessed by the individual
defendant. Clodfelter, 218 Va. at 623-24, 238 S.E.2d at 822;
Norton, No. 1897-95-2, slip op. at 2; Behrens, 3 Va. App. at
136-38, 348 S.E.2d at 433-34.
Similarly, in Drew, Garland, Burchette and Torian, the
reviewing court held that there was insufficient evidence to
support the defendant's drug possession convictions. In Drew,
the Supreme Court of Virginia held that the defendant's mere
proximity to the residence on the night of the search and his
occupancy of it were insufficient to prove that he possessed
cocaine found inside. Drew, 230 Va. at 473-74, 338 S.E.2d at
845. In Garland, the Court reversed the defendant's conviction
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of possession of cocaine. The Court held that the presence of
men's clothing, an expired motor vehicle operator's license, and
a lease agreement naming him and another person as lessors was
insufficient to sustain his conviction where there was no
testimony offered to show that the defendant currently lived at
the residence. Garland, 225 Va. at 184, 300 S.E.2d at 784-85.
In Torian, we reversed defendant's conviction for possession of
cocaine, holding that the defendant's mere presence in the house,
but not in any of the bedrooms where the cocaine was found, was
insufficient to show that she possessed the cocaine. Torian, No.
1770-96-2, slip op. at 2. In Burchette, we reversed the
defendant's conviction for possession of marijuana, holding that
ownership of a car in which marijuana was found was alone
insufficient to show that the defendant exercised dominion and
control over its contents at the time the contraband was
discovered. Burchette, 15 Va. App. at 437-38, 425 S.E.2d at 85.
In this case, the trial court found that a reasonable
inference could be drawn from the evidence that the bedroom where
the drugs were discovered was Hayspell's. When Gibbs entered the
home of Hayspell's parents, Hayspell and his mother were
descending the staircase. In the bedroom at the top of the
stairs, Gibbs found articles of men's clothing, shoes, and
jewelry, including a class ring engraved with the name "Reginald"
on the nightstand. The room also contained pictures of Hayspell
and a folder of personal financial papers identified to him and
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to his girlfriend, Kelly Gregory. Based upon all of the items
found in the bedroom and described by Gibbs, we hold that it was
reasonable for the fact finder to infer that the bedroom belonged
to Hayspell. The fact finder could also reasonably infer that
Hayspell had knowledge of the contents of the room he occupied
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and that he exercised dominion and control over the items found
within the room. His convictions are affirmed.
Affirmed.
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