Present: Hassell, C.J., Koontz, Kinser, Lemons, Agee, and
Goodwyn, JJ., and Carrico, S.J.
JAYSON FRANKLIN MAXWELL
OPINION BY
v. Record No. 070831 SENIOR JUSTICE HARRY L. CARRICO
February 29, 2008
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
In a jury trial, the defendant, Jayson Franklin Maxwell,
was convicted of possession of cocaine with intent to
distribute, third or subsequent offense, in violation of Code
§ 18.2-248, and possession of marijuana, in violation of Code
§ 18.2-250.1. The jury fixed the defendant’s punishment at
seven years in the penitentiary on the cocaine charge and thirty
days in jail on the marijuana charge. The trial court imposed
the sentences fixed by the jury and also imposed an additional
one-year term suspended subject to post-release supervision
pursuant to Code § 19.2-295.2.
In an unpublished opinion, a three-judge panel of the Court
of Appeals, with one judge dissenting, reversed the defendant’s
convictions. Maxwell v. Commonwealth, Record No. 2648-05-2
(Nov. 21, 2006). Upon rehearing en banc, a majority of the
court vacated the panel’s mandate and, by order, affirmed the
trial court’s judgment for the reasons stated in the panel’s
dissenting opinion. Maxwell v. Commonwealth, Record No. 2648-
05-2 (Apr. 3, 2007). We awarded the defendant this appeal.
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FACTUAL BACKGROUND
Approximately 11:00 a.m. on March 25, 2003, Officer Bill
Hogan of the Farmville Police Department, wearing plain clothes
but displaying a badge, a sidearm, and handcuffs, drove in his
unmarked vehicle to the Farmville Shopping Center, where, he had
been told, he would find the defendant. Upon arrival at the
shopping center, he found the defendant standing in front of
“The Gym.” Officer Hogan told the defendant he wanted to talk
to him about a check, and the two conversed briefly about that
subject.
The defendant had his hands “down the front of his pants,
not in his pockets, but actually down the front of his pants.”
Concerned about “officer safety,” Officer Hogan asked the
defendant to remove his hands from his pants. When the
defendant refused to respond to the request, Officer Hogan told
the defendant that they “needed to go to the police department
and talk about” the check matter and that he, Hogan, “needed to
check [the defendant] to see if he had anything on him, to pat
him down.” The defendant backed up and said several times, “I
ain’t got nothing on me,” whereupon, “[h]e ran.”
Officer Hogan pursued the defendant on foot for a short
distance and then returned to his vehicle and drove down an
alley behind the shopping center that bordered a lumberyard. He
observed the defendant walk out from behind several stacks of
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plywood located between the alley and a chain-link fence that
enclosed the lumberyard. Officer Hogan took the defendant into
custody, put handcuffs on him, and placed him in the vehicle of
State Trooper Sean Givens, who had responded to a call to report
to the scene. The officers found $460.00 in cash on the
defendant’s person, but no smoking device.
Officer Hogan conducted a search of the area. When he
found nothing, he called for a “drug dog,” and Robert Leon
Goldman, a “K-9 officer,” reported to the scene with his dog,
Lily, about 11:15 a.m. Lily “alerted on” a lumber pallet and
Goldman “reached in and got . . . a plastic bag” that contained
“eight individually wrapped off-white rocklike substances.”
Subsequent analysis determined that the rocklike substances in
the plastic bag were crack cocaine.
Trooper Givens conversed with the defendant while the
search was underway. At first, the defendant was “talkative and
cooperative” but became “less talkative and distant” after the
plastic bag was found. The trooper then transported the
defendant to the police department for processing.
Coy R. Sams, an employee of the lumberyard, testified that
he unloaded fourteen units of plywood from a tractor-trailer
about 8:30 a.m. on March 25, 2003, and placed the stacks of
plywood alongside the alley outside the fence that enclosed the
lumberyard. Sams also said he spent the rest of the morning
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“going in and out of the warehouse and back and forth to the
yard to retrieve products and materials for customers” and saw
no one near the stacks of plywood. He admitted, however, that
he was not “outside guarding the plywood the entire morning.”
Another lumberyard employee, Mac Robinson, Jr., testified
that he and three to six other employees were around the
warehouse and yard on March 25, 2003, filling orders for
customers and that he saw no one near the plywood stacks all
morning, although he was not near the stacks the entire time.
Later in the day, Robinson used a forklift to move the stacks of
plywood inside the fence where materials were “stored and
secured.” He testified that after moving “the top” of one of
the units, he returned “to pick the bottom unit up” and saw “two
bags of stuff” on top of the plywood. He reported his find to
Coy Sams and immediately went “back out and sat on the forklift
. . . until authorities came.”
Officer Hogan arrived on the scene at 1:45 p.m. and took
possession of the two bags. Subsequent analysis determined that
one bag contained twelve individually wrapped bags of crack
cocaine and the other bag contained marijuana.
A single latent fingerprint was found on the bag containing
crack cocaine but subsequent analysis determined that it did not
match the defendant’s fingerprints. A fingerprint expert
testifying for the Commonwealth said “circumstances have to be
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just right for a print to be left on a particular surface” and
“not everything that is touched can . . . develop a print.”
Fingerprints are “very fragile in nature,” he stated, and may be
destroyed “if you were to just wipe across [it] or if it comes
into contact with your clothing or another item.” He also
opined that “because there is no print of someone’s on [an
object] doesn’t mean that person didn’t touch it.”
At the conclusion of the Commonwealth’s evidence and at the
conclusion of all the evidence, the defendant moved to strike
the evidence on the ground it was insufficient to show he
possessed the drugs. The trial court denied both motions.
The defendant argues on appeal that the evidence was
insufficient as a matter of law to show he possessed the drugs
in question. The defendant contends that the Commonwealth’s
case is based on circumstantial evidence, that the chain of
circumstances is not unbroken, and that the evidence therefore
is equally susceptible to an interpretation consistent with his
innocence.
The Commonwealth responds that it was not required to prove
actual possession of the drugs, but that proof of the
defendant’s constructive possession was sufficient. The
Commonwealth maintains that from the reasonable inferences which
could be drawn from the facts, the jury could conclude that “the
defendant was concealing the drugs at the time of his initial
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encounter with Officer Hogan, that [the defendant] fled from the
officer to prevent the detection of the drugs, and that the
defendant ran to the stacks of plywood in an effort to discard
the contraband rather than risk its being found in his
possession.”
STANDARD OF REVIEW
“We have held in many cases that, upon appellate review,
the evidence and all reasonable inferences flowing therefrom
must be viewed in the light most favorable to the prevailing
party in the trial court.” Commonwealth v. Hudson, 265 Va. 505,
514, 578 S.E.2d 781, 786 (2003). “The judgment of the trial
court is presumed to be correct and will be reversed only upon a
showing that it is plainly wrong or without evidence to support
it.” Viney v. Commonwealth, 269 Va. 296, 299, 609 S.E.2d 26, 28
(2005) (internal quotation marks and citation omitted). The
issue upon appellate review is “whether, after viewing the
evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt.” Jackson v. Virginia,
443 U.S. 307, 319 (1979).
“To support a conviction based upon constructive possession
[of drugs], 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
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both the presence and character of the substance and that it was
subject to his dominion and control.” Drew v. Commonwealth, 230
Va. 471, 473, 338 S.E.2d 844, 845 (1986) (internal quotation
marks and citation omitted). When, as here, proof of
constructive possession rests upon circumstantial evidence, “all
necessary circumstances proved must be consistent with guilt and
inconsistent with innocence and exclude every reasonable
hypothesis of innocence.” Garland v. Commonwealth, 225 Va. 182,
184, 300 S.E.2d 783, 784 (1983) (internal quotation marks and
citation omitted). And “[w]hile a conviction may properly be
based upon circumstantial evidence, . . . [t]here must be an
unbroken chain of circumstances proving the guilt of the accused
to the exclusion of any other rational hypothesis and to a moral
certainty.” Gordon v. Commonwealth, 212 Va. 298, 300, 183
S.E.2d 735, 737 (1971) (internal quotation marks and citation
omitted).
ANALYSIS
Guided by the foregoing principles and after viewing the
evidence in the light most favorable to the Commonwealth, we are
of opinion that no “rational trier of fact could have found the
essential elements of the crime[s involved in this case] beyond
a reasonable doubt.” See Jackson, 443 U.S. at 319. The
circumstantial evidence that the defendant kept his hands in his
pants when initially contacted by Officer Hogan, ran from the
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scene when Hogan said he needed to pat him down, was seen
walking between the stacks of plywood and the fence enclosing
the lumber yard, and became less talkative and distant when
drugs were found, may create suspicion, but it is not
“consistent with guilt and inconsistent with innocence and [does
not] exclude every reasonable hypothesis of innocence.” See
Garland, 225 Va. at 184, 300 S.E.2d at 784. Nor does it
constitute “evidence of acts, statements, or conduct . . . or
other facts or circumstances which tend to show that the
defendant was aware of both the presence and character of the
substance[s] and that [they were] subject to his dominion and
control.” See Drew, 230 Va. at 473, 338 S.E.2d at 845. And it
does not establish “an unbroken chain of circumstances proving
the guilt of the [defendant].” See Gordon, 212 Va. at 300, 183
S.E.2d at 737.
When Officer Hogan observed the defendant with his hands in
his pants and told him he needed to pat him down, it was not
because the officer thought the defendant was hiding drugs but
because he feared the defendant might be concealing a weapon;
Hogan testified he wanted the pat down for “officer safety.”
When the defendant ran from Hogan, it could just as well have
been because he did not want to be questioned further about the
check matter rather than because he wanted to avoid being caught
in possession of drugs. When he was seen walking between the
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stacks of plywood and the fence enclosing the lumberyard, he had
nothing in his hands and was not acting furtively. And there is
nothing especially incriminating in the circumstance that he
became less talkative and distant when the first bag of drugs
was found; indeed, it would have been surprising if his attitude
had not changed upon that happening.
Nor is the Commonwealth’s case enhanced by the testimony of
the two lumberyard employees that they saw no one around the
stacks of plywood on the morning of March 25, 2003. They
admitted they did not keep constant surveillance; indeed,
neither one claimed to have seen the defendant when he obviously
was present on the scene. Furthermore, the plywood was stacked
in an unfenced area open to the public, along an alley available
to vehicular and pedestrian traffic and serving as access to
dwellings and commercial buildings, providing a situation in
which anyone so inclined could readily have placed the drugs in
the stacks of plywood undetected and, so far as the evidence is
concerned, even before the defendant ever arrived on the scene.
While the defendant’s conduct may have been suspicious, no
one ever saw him with the drugs, he never made any incriminating
statements concerning the drugs, and the one fingerprint found
on the plastic bag containing twelve rocks of crack cocaine was
not his but someone else’s. All the Commonwealth is really left
with, therefore, is evidence that the defendant was seen near
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the stacks of plywood where the drugs were found. But it was
not shown that he was ever in such close proximity as would
support a finding that he was aware of both the presence and the
character of the drugs and that they were subject to his
dominion and control. In any event, while proximity is a factor
to be considered along with other evidence, mere proximity is
not sufficient to prove possession, see Lane v. Commonwealth,
223 Va. 713, 716, 292 S.E.2d 358, 360 (1982), and the utter lack
of any other evidence connecting the defendant to the drugs
creates a wide gap in the chain of circumstances that is fatal
to the Commonwealth’s case.
CONCLUSION
For the foregoing reasons, we will reverse the judgment of
the Court of Appeals and dismiss both indictments against the
defendant.
Reversed and dismissed.
JUSTICE LEMONS, with whom JUSTICE KINSER joins, dissenting.
I respectfully dissent.
“The issue upon appellate review is . . . whether a
reasonable jury, upon consideration of all the evidence, could
have rejected” defendant’s theories and found him guilty beyond
a reasonable doubt. Commonwealth v. Hudson, 265 Va. 505, 513,
578 S.E.2d 781, 785 (2003). The question is not whether we
would reach the same conclusion, but whether the evidence is
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sufficient for the trier of fact to have so concluded. As the
majority correctly notes, “this Court reviews the evidence in
the light most favorable to the prevailing party at trial and
considers any reasonable inferences from the facts proved. The
judgment of the trial court will only be reversed upon a showing
that it ‘is plainly wrong or without evidence to support it.’ ”
Wilson v. Commonwealth, 272 Va. 19, 27, 630 S.E.2d 326, 330
(2006) (quoting Code § 8.01-680).
Although there was no direct evidence of Jayson Maxwell’s
(“Maxwell”) possession of the drugs, constructive possession may
be proved by circumstantial evidence, which is not viewed in
isolation. Hudson, 265 Va. at 514, 578 S.E.2d at 786. “[T]he
combined force of many concurrent and related circumstances,
each insufficient in itself, may lead a reasonable mind
irresistibly to a conclusion.” Id. (internal quotation marks
and citation omitted). The jury heard all of the evidence in
this case and found Maxwell guilty beyond a reasonable doubt.
The jury heard evidence that while questioning Maxwell
“about another matter, about a check,” Officer Hogan observed
Maxwell’s hands not in his pockets but “down the front of his
pants.” When Officer Hogan asked Maxwell to remove his hands,
he refused. Maxwell then repeatedly stated “I ain’t got nothing
on me.” Officer Hogan mentioned taking him to the station to
discuss the check matter and patting him down. Upon hearing
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this, Maxwell ran. The jury heard testimony that the next time
Officer Hogan observed Maxwell, he was walking out from behind
several stacks of plywood. This time, when approached by
Officer Hogan, Maxwell did not run. In fact, he was talkative
and cooperative.
A “drug dog” was called to the lumberyard, and “alerted” on
a bag later determined to contain crack cocaine in the lumber
pallets that Maxwell had been walking behind. Maxwell became
less talkative with Officer Hogan after the bag was found.
Later in the day two more bags were found under the pallets, one
contained cocaine, the other contained marijuana. The pallets
in question had been placed there at 8:30 the same morning.
Maxwell ran behind the freshly placed pallets at some time
shortly after 11 a.m. Two lumberyard employees testified that
although they did not keep constant surveillance and guard the
plywood, both were back and forth between the warehouse and the
yard all morning and they saw no one else near the plywood
stacks. Additionally, while Maxwell’s fingerprints were not
found on the bag, a fingerprint expert explained to the jury
that fingerprints are easily destroyed, and would likely be
destroyed when the bag was removed from Maxwell’s pants.
Proper deference must be given to the province of the jury
to consider the testimony, assess the credibility of the
witnesses and reject or accept the defendant’s theories.
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Hudson, 265 Va. at 514, 578 S.E.2d at 786. The jury could have
concluded that Maxwell was in possession of the drugs when
approached by Officer Hogan, and that because of this he would
not show the officer his hands and fled upon mention of a pat-
down. Maxwell ran to the exact spot where the drugs were
subsequently found. The jury could have considered the
testimony of the lumberyard employees that nobody was seen
around the lumberyard, and interpreted Maxwell’s subsequent
actions of walking calmly out from behind lumber pallets where
the drugs were found and his change in demeanor once the drugs
were found, as circumstantial evidence of his knowledge of the
nature and character of the substance found. Taken together,
the evidence in this case was sufficient to support the jury’s
finding. I would affirm the judgment of the Court of Appeals.
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