COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Bray and Bumgardner
Argued at Norfolk, Virginia
CLAUDE M. BOONE
MEMORANDUM OPINION * BY
v. Record No. 1851-97-1 JUDGE RICHARD S. BRAY
AUGUST 4, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF SOUTHAMPTON COUNTY
E. Everett Bagnell, Judge
H. Taylor Williams, IV, for appellant.
Donald E. Jeffrey, III, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Claude M. Boone (defendant) was convicted in a bench trial
on two counts of possessing cocaine with intent to distribute,
violations of Code § 18.2-248(A). On appeal, he argues that the
evidence was insufficient to support the convictions. We
disagree and affirm the trial court.
The parties are fully conversant with the record, and this
memorandum opinion recites only those facts necessary for
disposition of the appeal. In accordance with well-established
principles,
"we review the evidence in the light most
favorable to the Commonwealth, granting to it
all reasonable inferences fairly deducible
therefrom. The [fact finder's] verdict will
not be disturbed on appeal unless it is
plainly wrong or without evidence to support
it." When the sufficiency of the evidence is
challenged on appeal, "it is our duty to look
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
to that evidence which tends to support the
verdict and to permit the verdict to stand
unless plainly wrong."
Webber v. Commonwealth, 26 Va. App. 549, 564, 496 S.E.2d 83, 90
(1998) (citations omitted).
At 12:35 a.m. on January 16, 1996, defendant registered as a
guest at a motel in the City of Franklin and was assigned to room
207, accommodations last occupied by a guest on January 7, 1996.
At approximately 12:42 a.m., Franklin Police Officers Timothy
Whitt and William Clark arrived at the motel in search of
Theodore Watson (Watson), then visiting with defendant and Ralph
Perry (Perry) in room 207. Defendant answered the officers'
knock at the door, they identified themselves as police seeking
Watson, and defendant admitted them to the room.
When Clark inquired if any drugs or guns were present,
defendant responded, "[t]here's nothing in the room," invited the
officers to "check" for themselves and lifted the box springs and
mattress of a bed "for [Clark] to look underneath . . . ." Clark
opened the drawer of a nightstand and discovered a "stem
cleaner," a tool commonly used to clean a "crack pipe." Each man
then agreed to a search of his person, and a "stem" "crack
smoking device" was found in Perry's trousers, resulting in his
arrest. Clark then raised only the mattress of the bed,
discovered a "large Bowie knife," hemostats, several "smoking
device[s]," and a "large plastic bag" containing 81.6 grams of
cocaine and arrested Watson and defendant. Later that morning,
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Clark collected another plastic bag containing 3.46 grams of
cocaine from "inside the [bed] covers."
Police subsequently obtained a search warrant for a
Chevrolet Camaro parked at the motel and registered to Douglas
Eure (Eure), a friend of defendant. During the attendant search,
police discovered a "plastic bag" containing 88.0 grams of
"crack cocaine and . . . portable digital scales" in a "locked
compartment" at the rear of the vehicle. During questioning by
police, defendant "gave several different stories, but . . .
finally admitted to driving the [Camaro] but only to Dairy Queen
and the Sentry Mart." He stated that his fingerprints would be
on the "drug bag" found in the vehicle only if "someone [had]
handed it to [him] and [he] just held it for a second." When
defendant refused to permit a search of personal property seized
incident to his arrest, police obtained a warrant and discovered
car keys identified by Eure as the only keys to Eure's Camaro.
At trial Corporal David Welch, also of the Franklin Police
Department, qualified as an expert in the sale and distribution
of drugs and opined that the quantities of cocaine seized both in
the hotel room and vehicle were "not consistent with personal
use." He also testified that digital scales found in close
proximity to cocaine suggested that the drug was not possessed
for personal consumption. The "street value" of the cocaine
seized in the motel and Camaro totaled $7,365.
Defendant testified and admitted ownership of the Bowie
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knife discovered under the mattress but denied knowledge of the
drugs found both in the room and automobile. He admitted,
however, that the scales "look[ed] like" an object he had "seen
. . . on the seat of the car" and had placed in the vehicle's
"console."
To support a conviction based upon
constructive possession of drugs, "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." Although mere proximity to drugs
is insufficient to establish possession, it
is a circumstance which may be probative in
determining whether an accused possessed such
drugs. Ownership or occupancy of the
[premises] in which the drugs are found is
likewise a circumstance probative of
possession. In resolving this issue, the
court must consider "the totality of the
circumstances disclosed by the evidence."
Glasco v. Commonwealth, 26 Va. App. 763, 774, 497 S.E.2d 150, 155
(1998) (citations omitted). "Possession 'need not always be
exclusive. The defendant may share it with one or more.'"
Archer v. Commonwealth, 26 Va. App. 1, 12, 492 S.E.2d 826, 832
(1997) (citation omitted).
Here, defendant had been registered and was in occupancy of
room 207 only briefly when the police arrived and discovered the
illicit drugs and related paraphernalia already secreted in the
bed. Defendant raised the box springs and mattress together in
an effort to divert police attention from the drugs hidden
beneath the mattress. See Lane v. Commonwealth, 223 Va. 713,
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716, 292 S.E.2d 358, 360 (1982) (attempts to divert search from
concealed drugs are "the kinds of acts, statements, and conduct
which tend to prove . . . knowledge of the presence and character
of the contraband"). Defendant's knife was found with the other
items, including the cocaine, providing an inference of
knowledge, dominion and control of the offending drug. See
Archer, 26 Va. App. at 14, 492 S.E.2d at 832 (accused's knife and
gun concealed under mattress a circumstance probative of
constructive possession).
Defendant's possession of the cocaine discovered in the
Camaro is supported by his custody, control and use of the
vehicle, while holding the only keys, together with his
statements that he may have handled the digital scales later
found with the drugs in a locked area of the vehicle. His
untruthful statements to police and refusal to grant access to
the keys were further indications of guilty knowledge.
Accordingly, the finding by the trial court that defendant
constructively possessed the cocaine found both in the room and
vehicle, with the requisite intent, is supported by the evidence,
and we affirm the convictions.
Affirmed.
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