Brickhouse v. Com.

PRESENT: All the Justices

LAKEITHA D. BRICKHOUSE

v. Record No. 080130 OPINION BY
JUSTICE S. BERNARD GOODWYN
COMMONWEALTH OF VIRGINIA October 31, 2008

FROM THE COURT OF APPEALS OF VIRGINIA

In this appeal, we consider whether the Court of Appeals

erred in affirming the conviction of Lakeitha D. Brickhouse

(“Brickhouse”) for possession with the intent to distribute

cocaine as a principal in the second degree.

Brickhouse was charged, in the Circuit Court of the City

of Portsmouth, with possession of cocaine with the intent to

distribute. Code § 18.2-248. After a bench trial, Brickhouse

was found guilty and sentenced to serve a term of five years

in prison, with three years and six months suspended. The

Court of Appeals affirmed the conviction in an unpublished

opinion. Brickhouse v. Commonwealth, Record No. 3128-06-1

(Dec. 18, 2007). Brickhouse appeals.

FACTS

At approximately 2:30 p.m. on May 10, 2006, Portsmouth

police officers executed a search warrant for a residence at

103 Lexington Drive in Portsmouth. The targets of the

warrant, Garnet Brown and Tywon Wilkins (“Wilkins”) were not

present; however, police found Brickhouse just outside of the
residence. Officer G.B. Smith (“Smith”) explained to

Brickhouse why the police were there and took her inside the

residence. Officer Smith testified that Brickhouse told him

that she knew why the police were there, whom they were there

for, and that “she wasn’t the one doing it.” Officer Smith

also testified that Brickhouse told him that she had, at some

point in time, seen Wilkins with bags of cocaine at the

residence.

While searching the residence, the officers discovered

thirteen bags of crack cocaine weighing approximately 45 grams

behind an air-conditioning vent in an upstairs bedroom closet.

The officers found personal papers belonging to both

Brickhouse and Wilkins and drug-packaging materials in that

bedroom.

Police also discovered a digital scale with cocaine

residue in the living room, a razor blade on top of a

microwave oven in the kitchen, and suspected heroin in another

bedroom. Additionally, drug-packaging material was found

throughout the residence. At trial, an expert witness

testified that the amount of cocaine, considered along with

the other items found at the residence, was inconsistent with

the personal use of the cocaine.

The only person in the residence at the time of the

search was a man, identified as a “user,” who was found in the

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upstairs bathroom, approximately fifteen feet from the closet

where the cocaine was found. Brickhouse testified that the

man in the bathroom was the eldest brother of Wilkins and

Brown and that he had entered the residence to use the

bathroom. Brickhouse further testified that he had been in

the bathroom for about an hour when the police arrived.

Brickhouse testified that she resided in the home along

with her aunt and uncle. Brickhouse stated that Wilkins, her

boyfriend, had a key to the residence and had been in the

residence at times without her. Brickhouse further testified

that she did not have any knowledge of drugs stored in or sold

from the residence. There was no evidence presented

concerning who owned, rented, or had legal possession of the

residence.

The officers did not find anything illegal on

Brickhouse’s person. Also, upon testing, her fingerprints

were not identified on the drugs or the drug paraphernalia.

The circuit court found the evidence sufficient to find

Brickhouse guilty of possession of cocaine with intent to

distribute as a principal in the second degree. Focusing on

the evidence found in plain view, such as the digital scale,

the razor blade, and the drug packaging material, the court

found that “[Brickhouse] knew these folks were using her house

essentially as a drug house, either to stash or to sell.” The

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Court of Appeals affirmed the conviction stating that “she

actually provided her home as a venue for the operation of a

drug distribution scheme.” Brickhouse, slip op. at 3.

ANALYSIS

Brickhouse alleges that the evidence presented at trial

was insufficient to find her guilty of possession with intent

to distribute cocaine. When a defendant challenges the

sufficiency of the evidence, we view the evidence and all

reasonable inferences in the light most favorable to the

Commonwealth. Jay v. Commonwealth, 275 Va. 510, 524, 659

S.E.2d 311, 319 (2008); Walton v. Commonwealth, 255 Va. 422,

425-26, 497 S.E.2d 869, 871 (1998). However, we will not

sustain a trial court’s judgment that is plainly wrong or

without evidence to support it. McMorris v. Commonwealth, 276

Va. 500, 504, 666 S.E.2d 348, 350 (2008); Jay, 275 Va. at 524,

659 S.E.2d at 319.

The Commonwealth has the burden of proving beyond a

reasonable doubt that the accused is guilty of the charged

crime. McMorris, 276 Va. at 504, 666 S.E.2d at 350.

“ ‘Suspicion of guilt, however strong, or even a probability

of guilt, is insufficient to support a conviction.’ ” Rogers

v. Commonwealth, 242 Va. 307, 317, 410 S.E.2d 621, 627 (1991)

(quoting Cheng v. Commonwealth, 240 Va. 26, 42, 393 S.E.2d

599, 608 (1990)).

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 Brickhouse was found guilty of possession with the intent

to distribute cocaine as a principal in the second degree. To

prove that a defendant is guilty as a principal in the second

degree, the Commonwealth must establish that the defendant

procured, encouraged, countenanced or approved the criminal

act. Augustine v. Commonwealth, 226 Va. 120, 124, 306 S.E.2d

886, 888-89 (1983); Spradlin v. Commonwealth, 195 Va. 523,

526-27, 79 S.E.2d 443, 445 (1954). Evidence of a defendant’s

mere presence at a crime scene is insufficient to sustain a

conviction as a principal in the second degree. Hall v.

Commonwealth, 225 Va. 533, 536, 303 S.E.2d 903, 904 (1983);

Augustine, 226 Va. at 124, 306 S.E.2d at 888; Underwood v.

Commonwealth, 218 Va. 1045, 1048, 243 S.E.2d 231, 233 (1978).

“The Commonwealth must prove that the defendant consented to

the felonious purpose and the defendant contributed to its

execution.” McMorris, 276 Va. at 505, 666 S.E.2d at 350.

There must be evidence that Brickhouse committed an overt act

knowingly in furtherance of the commission of the crime,

possession with the intent to distribute cocaine, or that she

shared in the criminal intent of the principal committing the

crime. See id. at 505, 666 S.E.2d at 351.

The Commonwealth does not contend that Brickhouse shared

in the criminal intent of the principal in the first degree,

the unknown person who placed the cocaine in the vent.

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Rather, Brickhouse’s conviction is based upon the finding that

she committed an overt act in furtherance of the crime by

permitting the residence to be used as a haven for the

distribution of cocaine or the storage of cocaine intended for

distribution.

The status of the accused as a principal in the second

degree may be established by any combination of circumstantial

evidence or direct evidence. Foster v. Commonwealth, 179 Va.

96, 100, 18 S.E.2d 314, 316 (1942). Here, there is no direct

evidence that Brickhouse gave permission for the drugs to be

stored in the air conditioning vent in the bedroom. The

circuit court’s holding, therefore, is based upon evidence

that is wholly circumstantial. Consequently, “ ‘all necessary

circumstances proved must be consistent with guilt and

inconsistent with innocence and exclude every reasonable

hypothesis of innocence.’ ” Rogers, 242 Va. at 317, 410

S.E.2d at 627 (quoting Inge v. Commonwealth, 217 Va. 360, 366,

228 S.E.2d 563, 567 (1976)).

Viewed in the light most favorable to the Commonwealth,

the evidence shows that the home in which Brickhouse resided

contained drug paraphernalia in plain view, such as a digital

scale with cocaine residue in the living room, a razor blade

on the microwave oven in the kitchen, and drug-packaging

materials throughout the residence. The evidence demonstrates

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that Brickhouse knew why the police came to the residence, who

they were looking for and why. Such evidence indicates that

Brickhouse was aware of the drug activity; however, the

Commonwealth must prove more than Brickhouse’s knowledge of

the crime. See Hall, 225 Va. at 536, 303 S.E.2d at 904;

Augustine, 226 Va. at 124, 306 S.E.2d at 888; Underwood, 218

Va. at 1048, 243 S.E.2d at 233.

Brickhouse stated that she lived at the residence with

her aunt and uncle. The Commonwealth admits that no evidence

was presented concerning who had legal possession of the

residence in which the drugs were found. Given that the

principal in the first degree is unknown, and it was not

proven that Brickhouse had exclusive control and authority

over the residence where the drugs were found, the

circumstantial evidence presented by the Commonwealth failed

to exclude all reasonable inferences inconsistent with

Brickhouse’s guilt as a principal in the second degree. Even

if Brickhouse knew the drugs were being stored at the

residence, there is insufficient evidence to conclude that she

is the person who permitted it, as opposed to another

resident. Thus, there is insufficient evidence to support the

conviction of Brickhouse of possession with the intent to

distribute cocaine as a principal in the second degree.

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 Accordingly, we will reverse the judgment of the Court of

Appeals affirming Brickhouse’s conviction of possession of

cocaine with intent to distribute, vacate Brickhouse’s

conviction, and dismiss the indictment against her.

Reversed, vacated, and dismissed.

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