COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judges Baker and Coleman
Argued at Richmond, Virginia
PRESCOTT LAWRENCE HENRY
v. Record No. 1205-95-3 MEMORANDUM OPINION *
BY JUDGE JOSEPH E. BAKER
COMMONWEALTH OF VIRGINIA MAY 14, 1996
FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG
Richard S. Miller, Judge
William R. Light (Killis T. Howard, P.C., on
brief), for appellant.
H. Elizabeth Shaffer, Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.
In this appeal from his bench trial conviction by the
Circuit Court of the City of Lynchburg (trial court) for
possession of cocaine in violation of Code § 18.2-250, the sole
issue presented by Prescott Lawrence Henry (appellant) is whether
the evidence was sufficient to support his conviction. Finding
that the evidence was sufficient, we affirm the judgment of the
trial court.
On appeal, we view the evidence in the light most favorable
to the Commonwealth, granting to it all reasonable inferences
fairly deducible therefrom. Higginbotham v. Commonwealth, 216
Va. 349, 352, 218 S.E.2d 534, 537 (1975). Guided by that
familiar principle, the record discloses that on November
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
18, 1994, a warrant to search the premises known as 1817 Bedford
Avenue, Lynchburg, Virginia was executed by members of that
city's police department. Upon entering the dining room of the
house located at that address, the officers discovered four
persons sitting at a four-sided table. Each person sat at a
particular side of the table. Appellant sat at one end of the
table. After the police entered, all four persons were made to
lie on the floor.
Investigator Dance testified that "small white chunks"
(later determined to be cocaine), razor blades, and a homemade
smoking device with residue were found on the table. The
homemade smoking device was within an "arm's length" of appellant
and "a couple of" plastic bags were found on his person.
Although cocaine was found on the table, none was found in the
baggies. When appellant was told that he was under arrest for
possession of cocaine, he replied: "Yeah, all I was [here] to do
was smoke cocaine."
Appellant concedes that constructive possession may be shown
by acts, declarations, or conduct of the accused, and that
appellant was aware of the presence and character of the
contraband, but argues that the evidence fails to show that the
cocaine was subject to his dominion and control.
While mere proximity to a controlled
substance is insufficient to establish
possession, it is a factor to consider when
determining whether the accused
constructively possessed drugs. Like Brown,
the defendant in Eckhart alleged that her
conviction of possession of marijuana with
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intent to distribute was based solely on her
proximity to the drugs. The Supreme Court of
Virginia, however, found that the evidence
was sufficient to sustain the defendant's
conviction based upon constructive possession
where the defendant, who was holding a baby,
was seated outside the open door to a baby's
room which contained marijuana and drug
paraphernalia that was visible from the
defendant's position. The court found that
the trial court "could reasonably conclude
that she was aware of the contents of the
room and stationed herself where she could
exercise dominion and control over the
marijuana."
Brown v. Commonwealth, 5 Va. App. 489, 492, 364 S.E.2d 773,
774-75 (1988) (citations omitted).
Here, the evidence disclosed that appellant was more than in
"mere proximity" to the cocaine. He was present at the table to
smoke cocaine. The pipe containing cocaine residue necessary to
complete that intent was within an arm's length of his reach.
The chunks of cocaine on the table were in plain view.
Possession need not always be exclusive. Ritter v. Commonwealth,
210 Va. 732, 741, 173 S.E.2d 799, 806 (1970). The accused may
share it with one or more persons. Id. The duration of the
possession is immaterial and need not always be actual
possession. Id.
We hold that the trial court could reasonably infer that the
cocaine was jointly possessed by the four men seated at the table
and that it was possessed for their exclusive use. We hold that
the totality of the circumstances disclosed by the evidence is
sufficient to support the finding that appellant was in
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constructive possession of the drug named in the indictment and
that he was aware of its contraband character.
The judgment of conviction is therefore affirmed.
Affirmed.
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