Minor v. Commonwealth

Opinion

HODGES, J.

Sylvester Minor was convicted at a bench trial of possession of cocaine with intent to distribute in violation of Code § 18.2-248. He was tried jointly with co-defendants Michael Minor, James Brown, and Anthony Reese. The court fined Minor $3,500 and sentenced him to twenty-five years in the penitentiary with ten years suspended. On appeal, he argues that the Commonwealth’s evidence was insufficient to sustain his conviction and that it was error to admit into evidence the money found in his possession. We disgree and affirm the conviction.

On the evening of November 19, 1985, the Richmond police executed a search warrant at the residence of the appellant and his brother, Michael Minor. The police gained entry into the residence when a black male, later identified as Calvin Brake, opened the front door to exit. He attempted to close it when he saw the police, but Detective Fleming forced open the door and entered, followed by Detectives Clavert, Clark, and Robinson. They identified themselves as the police upon entry.

Detective Fleming chased Brake down the hallway. As Fleming passed the entrance to the master bedroom, which was Michael Minor’s, he paused and glanced into the lit room to check for weapons. He observed the appellant seated at the head of the bed, his brother at the foot of the bed, and James Brown seated between the two on a stool next to the bed. In the center of them on the bed, there was a mirror with white powder on it and there was a scale on a speaker next to the bed. All three defendants were *368seated within arm’s reach of each other and of the cocaine on the bed.

Not seeing any weapons, Fleming proceeded into the den after Brake. Anthony Reese was in the den where Fleming found twelve packs of cocaine, which were packaged in the customary way for street distribution. When Fleming returned to the bedroom about a minute later, everyone had moved and other detectives were present. In addition to the mirror and scales, the following items were seized in the room: two pounds of cocaine on the bed with an approximate value of $45,000, a strainer with residue in it, containers of commonly used cutting agents, a box of plastic baggies, blue twist ties, scissors, plastic tooters, spoons with residue on them, and $60 on the night stand.

As Detective Clavert, who followed Fleming into the residence, reached the master bedroom, Brown and Michael Minor were exiting from it. Clavert detained them there. Although he did not actually enter the bedroom, he did not recall seeing the appellant at that time. Detective Clark entered the residence next. He apprehended Brake, who was leaving the den, in the hallway. He observed Brown, Michael Minor, and the appellant in the bedroom with Detective Clavert at that time.

After waiving his rights, the appellant informed the police that his bedroom was upstairs and that he was coming downstairs to leave for work when he was pushed into the master bedroom by the police. He stated that he did not know how long cocaine was sold from the house because his brother kept it from him.

The police found two hundred and sixteen dollars on the appellant. No drugs were found in the appellant’s room.

I. SUFFICIENCY OF THE EVIDENCE

Challenging the sufficiency of the evidence, appellant contends that the Commonwealth failed to prove he was present in the master bedroom. The appellant’s contention rests on a narrow interpretation of Detective Fleming’s and Detective Clavert’s testimony. The Commonwealth does not place the same significance on Fleming’s language, nor does it find the two detectives’ testimony contradictory. We agree and find the evidence sufficient to establish the appellant’s guilt beyond a reasonable doubt.

*369Where the sufficiency of the evidence is raised on appeal, the court must consider the evidence in the light most favorable to the Commonwealth, giving to it all reasonable inferences fairly deducible therefrom. Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975); Hambury v. Commonwealth, 3 Va. App. 435, 437, 350 S.E.2d 524, 524 (1986). Furthermore, the “judgment of a trial court sitting without a jury is entitled to the same weight as a jury verdict and will not be disturbed on appeal unless plainly wrong or without evidence to support it.” Hambury, 3 Va. App. at 437, 350 S.E.2d at 524 (citing Code § 8.01-680; Evans v. Commonwealth, 215 Va. 609, 613, 212 S.E.2d 268, 271 (1975)).

The pertinent portions of Detective Fleming’s testimony at trial follow:

Direct Examination

Q: What happened at the front of the house?
A: I stood right beside the front door, and I could hear conversation in the, coming from a window, which was the bedroom that the Minors and Mr. Brown were in. After standing beside the door for just a few minutes, a black male, Calvin Brake, started out of the house. As he started to come out of the door, he spotted me, pulled the storm door shut and tried to close the front door. I pulled open the storm door and forced in the front door. Calvin Brake was chased to a rear bedroom. While in chasing him, we passed by the bedroom where the Minors were and Mr. Brown. I stopped momentarily there to just glance in the room to make sure no one had any weapons or anything, just for my own safety, and then continued on in pursuit of Mr. Brake.
Q: Where were the individuals located in the master bedroom?
A: Michael Minor was seated at the foot of the bed; Sylvester Minor, as best I can recall, was at the head of the bed; and Mr. Brown was in a chair stool between the two.
*370* * * *
Cross-Examination
Q: Where was Mr. Brown sitting?
A: From the best of my recollection, he was on a chair stool right there at the side of the bed, within a foot or so of the bed.
Q: Mr. Mike Minor, you testified—
A: He was at the foot of the bed, sitting on the bed.
Q: And Sylvester?
A: Best I can recall he was at the head of the bed, near the pillow.

The appellant’s interpretation of Detective Fleming’s language “best I can recall” when referring to him is crucial to his argument. Appellant asserts that Detective Fleming uses this equivocal language both times when referring to him, yet he is explicit when referring to the others in the room. From the location of the phrase in the sentence, appellant infers that Detective Fleming was unsure about his presence, not his location, in the bedroom. When considering Fleming’s testimony with Detective Clavert’s testimony that he did not recall seeing Sylvester Minor in the master bedroom when he detained Brown and Michael Minor, appellant argues that the Commonwealth failed to prove his presence in the bedroom.

We find no merit in the appellant’s position. A review of the record reveals that the appellant focuses on specific language in Detective Fleming’s testimony while clearly ignoring the questions posed to him.1 Both times Fleming was asked about the appellant, he was questioned about Minor’s location, not his presence, in the bedroom. Fleming previously testified that before entering the house, he was standing beside the window to the bedroom where the Minors and Mr. Brown were. Then he stated that he passed *371the bedroom occupied by the Minors and Mr. Brown while chasing Brake down the hallway. Detective Fleming’s testimony clearly and unequivocally places Sylvester Minor in the bedroom.

Furthermore, when viewing Detective Clavert’s testimony in a light most favorable to the Commonwealth, his testimony does not conflict with Fleming’s. He merely states that he did not recall seeing the appellant when he stopped the two co-defendants as they were exiting the room. We also disagree with the appellant’s contention that Clavert was in a better position to determine who was in the bedroom. Detective Fleming was the first police officer to enter the house and he reached the entrance to the master bedroom in a matter of seconds while the occupants were still seated in the bedroom. Therefore, he was in a superior position to determine who occupied the room.

In finding Sylvester Minor guilty, the trial judge commented on the credibility of the witnesses. Judge Wright stated, “I find the Commonwealth’s witnesses to be credible. In particular, Detective Fleming. I believe his testimony to the effect that the three defendants, Michael Minor, Sylvester Minor and James Brown were seated around that bed where the cocaine was being cut.”

“[T]he finding of the judge, upon the credibility of the witnesses and the weight to be given their evidence, stands on the same footing as the verdict of a jury, and unless that finding is plainly wrong, or without evidence to support it, it cannot be disturbed.” Speight v. Commonwealth, 4 Va. App. 83, 88, 354 S.E.2d 95, 98 (1987) (quoting Lane v. Commonwealth, 184 Va. 603, 611, 35 S.E.2d 749, 752 (1945)).

Assuming arguendo that his presence in the bedroom was proven, appellant contends that the evidence establishes only mere proximity to the drugs which is not sufficient for a conviction. See Drew v. Commonwealth, 230 Va. 471, 473, 338 S.E.2d 844, 845 (1986). Appellant analogizes the facts of this case to those in Drew where the police executed a search warrant at Drew’s residence and found cocaine and drug paraphernalia in several places throughout the house. Although Drew was not present, the police found documents in the living room which showed the residence as his current address. When the police entered the residence, they observed the defendant standing in the street several houses down. The court found the evidence was insufficient to prove constructive *372possession, noting that the record lacked evidence of any statements or conduct of the defendant which showed he was aware of the presence of drugs. Furthermore, the only evidence of the defendant’s dominion and control over the drugs was the documents showing the residence as Drew’s. In the present case, the appellant emphasizes the absence of any act or declaration on his part to prove the drugs were subject to his dominion and control.

Drew is clearly distinguishable on the facts. In Drew, the police observed twenty-two people enter and leave the defendant’s residence in an hour. When the police executed a search warrant, the defendant was not present. Furthermore, there was no proof that he was in the residence earlier. In the present case, however, the evidence reveals more than the mere presence of the appellant in the house when the search occurred. He was seated on the bed where the drugs were found, and he was within arms reach of the drugs and other drug paraphernalia.

Accordingly, we find the evidence sufficient to sustain the appellant’s conviction.

II. ADMISSIBILITY OF EVIDENCE

Appellant also contends that the trial court erred in admitting into evidence the $216 found on his person because the Commonwealth did not introduce any evidence to show the money was gained through the illegal sale of drugs. The money, however, was properly admitted as circumstantial evidence of an intent to distribute. See Colbert v. Commonwealth, 219 Va. 1, 4, 244 S.E.2d 748, 749 (1978). “Evidence which bears upon and is pertinent to matters in issue, and which tends to prove the offense, is relevant and should be admitted.” Coe v. Commonwealth, 231 Va. 83, 87, 340 S.E.2d 820, 823 (1986).

For the foregoing reasons, we affirm the judgment of the trial court.

Affirmed.

Moon, J., concurred.

In addition, appellant erroneously claims that Fleming only used language like “best I can recall” when referring to him. When asked on cross-examination where Brown was sitting, Fleming prefaced his answer with “[f]rom the best of my recollection.”