COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judges Coleman and Elder
Argued at Richmond, Virginia
JAMES EDWARD CRAWLEY, JR.
v. Record No. 1582-94-2 MEMORANDUM OPINION * BY
CHIEF JUDGE NORMAN K. MOON
COMMONWEALTH OF VIRGINIA DECEMBER 29, 1995
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
James B. Wilkinson, Judge
Maureen L. White, Assistant Public Defender
(David J. Johnson, Public Defender, on
brief), for appellant.
Thomas D. Bagwell, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
James Edward Crawley Jr. was convicted of possession of
cocaine and heroin with intent to distribute. He appeals his
convictions on the ground that the evidence was insufficient to
prove that he possessed drugs. We agree, and reverse the
convictions.
On October 22, 1992, a detective executed a search warrant
at Room 119 of the Relax Inn. When the detective arrived at the
room, Crawley's girlfriend was the only occupant in the room. In
the closed drawers of a dresser and a nightstand, the police
found cocaine, heroin, scales, $560 in cash, a picture of
defendant, and clothing belonging to the defendant. On the floor
between a dresser and a bed, the police found a folded playing
card containing a small amount of cocaine. The defendant's
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
girlfriend showed the detective where the drugs could be found.
The Commonwealth did not present evidence showing to whom or when
the room was registered, nor had the police done surveillance of
the room to show who had been occupying it.
Crawley arrived at the room about fifteen minutes after the
search began. He had in his possession two pagers, and a key to
room 119. Crawley at first informed police that he did not know
anyone in the room; he then indicated that he was visiting his
girlfriend in the room.
Where sufficiency of the evidence is challenged, the Court
considers the evidence in the light most favorable to the
Commonwealth and grants it all reasonable inferences deducible
therefrom. Higginbotham v. Commonwealth, 216 Va. 349, 352, 218
S.E.2d 534, 537 (1975). The judgment of a trial court sitting
without a jury is entitled to the same weight as a jury verdict.
Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418
(1987).
The defendant's conviction was based on the Commonwealth's
evidence to prove constructive possession. "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 dominion and control.'"
McGee v. Commonwealth, 4 Va. App. 317, 322, 357 S.E.2d 738, 740
(1987) (quoting Drew v. Commonwealth, 230 Va. 471, 473, 338
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S.E.2d 844, 845 (1986)). Where the Commonwealth's case for
constructive possession is based on circumstantial evidence, such
evidence must be sufficiently convincing to exclude every
reasonable hypothesis except that of guilt. Shurbaji v.
Commonwealth, 18 Va. App. 415, 423, 444 S.E.2d 549, 553 (1994);
Hairston v. Commonwealth, 5 Va. App. 183, 186, 360 S.E.2d 893,
895 (1987) (citations omitted).
This case is similar to Clodfelter v. Commonwealth, 218 Va.
619, 238 S.E.2d 820 (1977), where the Supreme Court found the
evidence insufficient to prove constructive possession. In that
case, drugs were found concealed behind a dresser mirror and
underneath a bed. The room was registered to Clodfelter and he
had left some personal property there. Clodfelter, when
questioned by the police, gave a false identity. The Supreme
Court found that the evidence created a "strong suspicion of
guilt", but fell short of showing that the drugs were either
actually or constructively possessed by Clodfelter with an
awareness of their character. Id. at 623, 238 S.E.2d at 822.
Two factors that distinguish this case from Clodfelter are
the presence of Crawley's girlfriend, who knew the location of
the drugs, and the location of the drugs. However, these
differences do not prove that Crawley knew of the nature and
presence of the drugs or exercised dominion or control over them.
In Clodfelter, the drugs could have been left by a former
occupant. Here the drugs could have been possessed solely by the
girlfriend. The police could not say when or whether Crawley had
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been in the room before he arrived and was arrested. Although
his possession of a key to the room, the presence of his clothes
and photo in the room, his possession of a pager, and his false
denial of knowing his girlfriend are highly suspicious, those
factors do not prove that he exercised dominion or control over
the contraband. Thus, the Commonwealth's evidence did not
exclude every reasonable hypothesis of innocence. Unsupported
inferences, mere probabilities, and speculation are insufficient
to sustain these convictions. Therefore, the judgment of the
trial court is reversed.
Reversed.
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