COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Annunziata and Overton
Argued at Norfolk, Virginia
ALFONZA WYCHE, JR.
MEMORANDUM OPINION * BY
v. Record No. 2729-97-1 JUDGE ROSEMARIE ANNUNZIATA
JANUARY 26, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
Randolph T. West, Judge
Robert W. Jones, Jr. (Jones & Jones, P.C., on
brief), for appellant.
H. Elizabeth Shaffer, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Alfonza Wyche ("appellant") appeals his convictions under
Code §§ 18.2-250 and 18.2-308.4 for: (1) possession of cocaine,
and (2) possession of a firearm while in possession of cocaine,
respectively. Appellant contends the evidence was insufficient
to establish his guilt beyond a reasonable doubt. We disagree
and affirm.
When the sufficiency of evidence is challenged on appeal, we
must view the evidence undergirding a conviction in the light
most favorable to the Commonwealth. Higginbotham v.
Commonwealth, 216 Va. 349, 352, 318 S.E.2d 534, 537 (1975). "An
appellate court must discard all evidence of the accused that
conflicts with that of the Commonwealth and regard as true all
*
Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
credible evidence favorable to the Commonwealth and all fair
inferences reasonably deducible therefrom." Lea v. Commonwealth,
16 Va. App. 300, 303, 429 S.E.2d 477, 479 (1993).
Viewed in this light, the following facts were established
by the evidence. On April 7, 1997, officers of the Newport News
police department executed a search warrant at 1120 23rd Street
in Newport News, which authorized them to search the premises and
all persons found there. Police described the premises as "the
largest open air drug market in the city," and the constant
source of drug-related incidents. Appellant resided in the
one-bedroom, downstairs apartment of 1120 23rd Street. Appellant
had lived in the apartment for about three or four months. As
police approached the premises, they observed several individuals
seated on the front porch; appellant was seated on a stool just
inside the front screen door. Three juveniles were also found in
the downstairs apartment's living room.
In the course of the search of the premises, Detective Best
found six "packs" of heroin wrapped in a piece of white paper on
top of an open toolbox a few feet away from where appellant sat
at the doorway. In the downstairs bedroom, Best also found a
rock of cocaine lying unwrapped and in plain view on the bed's
flat headboard and various amounts of cash in three separate
1
drawers.
1
Best found $38 in one drawer, $126 in another, and an
unidentified amount in a third.
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Another officer, Detective Stevenson, seized appellant at
the doorway and directed him to the downstairs bedroom, which
appellant had identified as his. While searching appellant in
the bedroom, Stevenson asked if he kept any weapons or drugs
there. Appellant directed Stevenson to a loaded .357 caliber
revolver under his bed. Appellant claimed that a brother,
engaged in a domestic dispute, had placed the gun there for
safekeeping. Stevenson found approximately $300 of cash in
appellant's wallet, $65 of cash in a front pocket of appellant's
pants, and a pager.
At trial, appellant testified that he knew nothing about the
drugs found in the bedroom, stating that the downstairs apartment
belonged to a brother, that he was staying there with him, and
that he slept on the couch in the living room, but kept clothes
in the bedroom where the cocaine was found. Appellant further
testified that two of the juveniles found in the downstairs
living room were a nephew and niece, that they were visiting him
at the time, and that they had access to the entire house. There
was no evidence regarding how long these individuals had been in
the apartment or what they were doing prior to the arrival of
police.
We will not reverse the trial court's judgment unless it is
plainly wrong or without evidence to support it. Code
§ 8.01-680. To obtain a conviction of possession of a controlled
substance, the Commonwealth may prove either actual or
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constructive possession. White v. Commonwealth, 24 Va. App. 446,
452, 482 S.E.2d 876, 879 (1997). Under a constructive possession
theory, "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." Powers v. Commonwealth,
227 Va. 474, 476, 316 S.E.2d 739, 740 (1984). Proof of the
presence of contraband on premises owned or occupied by an
accused is insufficient, standing alone, to prove constructive
possession. Code § 18.2-250. Although such evidence is
probative, it is only a circumstance that may be considered with
the other evidence. Tucker v. Commonwealth, 18 Va. App. 141,
144, 442 S.E.2d 419, 421 (1994). Further, the duration of
possession is immaterial, and the defendant need not be in
exclusive possession to sustain a conviction. Clodfelter v.
Commonwealth, 218 Va. 619, 622, 238 S.E.2d 820, 822 (1977);
Archer v. Commonwealth, 26 Va. App. 1, 12, 492 S.E.2d 826, 832
(1997).
"Circumstantial evidence is sufficient to support a
conviction as long as it excludes every reasonable hypothesis of
innocence." Tucker, 18 Va. App. at 143, 442 S.E.2d at 420.
"When, from the circumstantial evidence, 'it is just as likely,
if not more likely,' that a 'reasonable hypothesis of innocence'
explains the accused's conduct, the evidence cannot be said to
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rise to the level of proof beyond a reasonable doubt."
Littlejohn v. Commonwealth, 24 Va. App. 401, 414, 482 S.E.2d 853,
859 (1997) (quoting Haywood v. Commonwealth, 20 Va. App. 562,
567-68, 458 S.E.2d 606, 609 (1995)). The Commonwealth need not
"exclude every possible theory or surmise," but only those
hypotheses "which flow from the evidence itself, and not from the
imagination of defendant's counsel." Cantrell v. Commonwealth, 7
Va. App. 269, 289-90, 373 S.E.2d 328, 338-39 (1988) (citations
omitted).
We find the evidence is sufficient to sustain appellant's
conviction beyond a reasonable doubt. Police found a rock of
unwrapped cocaine lying in plain view on the headboard of
appellant's bed while executing a search warrant in the
apartment, which was located in a house described as the largest
open air drug market in Newport News. Indeed, police also found
a quantity of heroin on the premises. Appellant kept his
personal property in the room where police found the drugs and
readily identified the hidden location of a gun, evidencing his
familiarity with the room and its contents. There was no
evidence that anyone other than appellant had been in the bedroom
prior to the discovery of drugs within it. Police also found
several bundles of cash in appellant's bedroom, and two bundles
of cash and a pager on appellant's person, evidence generally
associated with drug-distribution activities. See Glasco v.
Commonwealth, 26 Va. App. 763, 775, 497 S.E.2d 150, 156 (1998);
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White v. Commonwealth, 25 Va. App. 662, 668, 492 S.E.2d 451, 454
(1997) (en banc). Finally, the trial court was entitled to
reject appellant's testimony professing ignorance of the
existence of the drugs in his bedroom and infer that appellant
lied to conceal his guilt. Price v. Commonwealth, 18 Va. App.
760, 768, 446 S.E.2d 642, 647 (1994). See Speight v.
Commonwealth, 4 Va. App. 83, 88, 354 S.E.2d 95, 98 (1987)
(stating that the trial court's finding as to the credibility of
a witness stands on the same footing as the verdict of a jury and
cannot be disturbed unless plainly wrong or without evidence to
support it).
We accordingly affirm the convictions.
Affirmed.
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Benton, J., dissenting.
To support on appeal a conviction based upon constructive
possession of 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). Based upon evidence that proved only that cocaine was
found in the room "identified as . . . [Alfonza] Wyche's
bedroom," the majority upholds the convictions for possession of
cocaine and possession of cocaine while simultaneously possessing
a firearm. However, the legislature has unequivocally determined
that in Virginia "ownership or occupancy of premises . . . in
which a controlled substance was found shall not create a
presumption that such person either knowingly or intentionally
possessed such controlled substance." Code § 18.2-250.
The officer who obtained the search warrant described the
building as follows:
Q: And the house that you're talking about
there, 1120 - 23rd Street, it has -- when you
come in the foyer, you come in the main door,
the front door of the apartment, where you
found Mr. Wyche, there's a stairway leading
upstairs into what has been made into an
apartment?
A: That's correct.
Q: And you go down, I guess a hallway beside
the stairwell to get to the back apartment?
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A: That's correct.
Q: And with the exception of what you read
in the affidavit, you don't know whose
apartment the upstairs apartment and
downstairs apartment belong to, from your own
personal knowledge?
A: Based on information that I received from
the informant, I knew who both of the
individuals were, but I did not have any
personal knowledge.
The Commonwealth's evidence does not prove who was the
leaseholder of the first floor apartment that was searched.
Although the officer who obtained the search warrant testified
that, "[b]ased on the information in the [search warrant]
affidavit, [he] was able to ascertain it was the apartment of
. . . Wyche's girlfriend," the trial judge ruled that this "was
hearsay evidence" and disregarded it.
The evidence is undisputed, however, that when the officers
arrived to search the apartment, Wyche was sitting on a stool at
the front door of the building which contained the two
apartments. Wyche was not inside the apartment; he was in the
foyer at the building's entrance in full view of the officers.
The officers initially detained Wyche in the foyer where he was
sitting.
Other officers entered the apartment on the first floor of
the building and detained three juveniles who were inside the
apartment. During the search of the apartment, one of the
officers found a "rock" of cocaine in plain view on the headboard
of a double bed. The officer testified that the room was
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"identified as . . . Wyche's bedroom." The apartment contained
only one bedroom.
Even if the room was Wyche's bedroom, no evidence proved
when Wyche was last in the bedroom. Wyche made no statements
that indicated he was aware of the presence of the cocaine in the
bedroom. At trial, he testified that "it's my brother's
apartment. I was just staying with him." Wyche further
testified that he "slept in the living room on the couch" and
kept his clothes in the bedroom. He denied knowing the cocaine
was in the bedroom.
The Supreme Court has consistently ruled that an accused may
not be convicted of possessing narcotics found in a place that
the accused occupies where the evidence proved (1) that the
accused was not present in the place where the narcotics were
found and (2) that other persons had access to the premises.
See, e.g., Drew v. Commonwealth, 230 Va. 471, 338 S.E.2d 844
(1986); Powers v. Commonwealth, 227 Va. 474, 316 S.E.2d 739
(1984); Garland v. Commonwealth, 225 Va. 182, 300 S.E.2d 783
(1983); Clodfelter v. Commonwealth, 218 Va. 619, 238 S.E.2d 820
(1977); Huvar v. Commonwealth, 212 Va. 667, 187 S.E.2d 177
(1972); Crisman v. Commonwealth, 197 Va. 17, 87 S.E.2d 796
(1955). See also Burchette v. Commonwealth, 15 Va. App. 432, 425
S.E.2d 81 (1992).
Wyche was arrested outside the apartment. In failing to
prove beyond a reasonable doubt when Wyche was in the bedroom,
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the evidence does not otherwise establish that Wyche was aware of
the presence and character of the cocaine and that he
intentionally and consciously possessed it or exercised dominion
and control over it. See Drew, 230 Va. at 473, 338 S.E.2d at
845; Powers, 227 Va. at 476, 316 S.E.2d at 740. Failing to prove
that Wyche had exclusive access to the bedroom and failing to
account for all those who may have had access to the location
where the cocaine was found, the Commonwealth cannot rely on an
inference from these circumstances that Wyche knew of the
presence of the cocaine. See Best v. Commonwealth, 222 Va. 387,
389, 282 S.E.2d 16, 17 (1981) (per curiam).
No presumption that Wyche possessed the drugs arises from
the officer's testimony that the drugs were found in the bedroom
that someone identified to the officer as Wyche's bedroom. Code
§ 18.2-250. Furthermore, although the majority notes that
opinions of this Court have considered an accused's possession of
cash and pagers as factors in judging whether an accused intended
to distribute a controlled substance found in his or her
possession, that proposition is irrelevant to the facts of this
case. Wyche did not actually possess the cocaine. More
significant, however, the trial judge ruled that the evidence was
insufficient to prove Wyche intended to distribute cocaine, and
the judge convicted Wyche of simple possession. The majority
cites no authority, and the Commonwealth produced no evidence,
which suggests that Wyche's possession of cash and a pager tends
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to prove that he possessed the cocaine found in the bedroom.
It is well settled in Virginia that to
justify conviction of a crime, it is not
sufficient to create a suspicion or
probability of guilt, but the evidence must
establish the guilt of an accused beyond a
reasonable doubt. It must exclude every
reasonable hypothesis except that of guilt.
The guilt of a party is not to be inferred
because the facts are consistent with his
guilt, but they must be inconsistent with his
innocence.
Cameron v. Commonwealth, 211 Va. 108, 110-11, 175 S.E.2d 275, 276
(1970). "'[C]ircumstances of suspicion, no matter how grave or
strong, are not proof . . . sufficient to support a verdict of
guilty.'" Crisman, 197 Va. at 21, 87 S.E.2d at 799 (citation
omitted); see also Stover v. Commonwealth, 222 Va. 618, 624, 283
S.E.2d 194, 197 (1981). The evidence in this record creates only
a mere suspicion and does not exclude the reasonable hypothesis
that someone other than Wyche placed the cocaine in the room and
possessed it.
For these reasons, I would reverse the convictions and
dismiss the prosecution.
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