Nelson v. Commonwealth

Baker, X,

dissenting.

I respectfully disagree with the majority’s finding that the evidence is insufficient to support the judgment of the trial court.

“Whether a defendant knows of the existence of narcotics at the place where they are found may be demonstrated through the defendant’s declarations or conduct.” Lowery v. Commonwealth, 9 Va. App. 314, 319, 388 S.E.2d 265, 268 (1990). Possession may be actual or constructive. Castaneda v. Commonwealth, 7 Va. App. 574, 583, 376 S.E.2d 82, 86 (1989). Such possession need not be exclusive, it may be shared. Archer v. Commonwealth, 225 Va. 416, 418, 303 S.E.2d 863, 863 (1983).

When viewed in the light most favorable to the Commonwealth, the evidence shows that when the police entered the premises, appellant was seated only two feet from a desk in which $496 was found folded as if one package, $300 of which appellant admitted was his. On that same desk was a logbook identified as containing information relating to the drug trade. Although appellant lived in the same city in which the motel was located, he had been in the motel with the registered occupant (Lewis) “for a few days.” In the bathroom were numerous personal hygiene items, including two toothbrushes. Other than appellant, only the registered occupant, whose name was on the logbook, was shown to have entered or occupied the motel room during the few days that appellant was a co-occupant. The ten white substances proved to be rock cocaine were found in a torn plastic bag in a toothbrush holder near the two toothbrushes. Appellant’s coat was discovered among other clothes and with the coat of the registered occupant.

Although proof that cocaine is found on the premises occupied by a defendant “is insufficient, standing alone, to prove constructive possession, . . . such evidence is probative of possession and is a circumstance which may be considered along with other evidence.” Hodge v. Commonwealth, 7 Va. App. 351, 358, 374 S.E.2d 76, 80 (1988) (citations omitted). Another factor that is relevant is the possession of *713large amounts of cash, which may be considered as evidence of involvement in drug distribution. Johnson v. Commonwealth, 12 Va. App. 150, 153, 402 S.E.2d 502, 504 (1991); see also Colbert v. Commonwealth, 219 Va. 1, 244 S.E.2d 748 (1978). An additional factor that may be considered is the quantity of narcotics possessed. Hunter v. Commonwealth, 213 Va. 569, 570, 193 S.E.2d 779, 780 (1973). The quantity that a defendant possesses “may indicate the purpose for which it is possessed.” Castaneda, 7 Va. App. at 584, 376 S.E.2d at 87.

Appellant’s explanation to the trial court, which differed from that to which the officers testified appellant gave at the time of his arrest, could reasonably have been rejected by the fact finder. “The credibility of the witnesses and the weight accorded their testimony are matters solely for the fact finder, who has the opportunity of seeing and hearing the witnesses.” Id.

I would hold that the fact finder could have reasonably inferred from this record that appellant and Lewis occupied the motel room in joint possession of the rock cocaine with intent to distribute in violation of Code § 18.2-248, as charged in the indictment.

Accordingly, I would affirm the judgment of the trial court.