Opinion
Record No. 0324-93-2
March 29, 1994
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY ERNEST P. GATES, SR., JUDGE DESIGNATE.
Fredrick S. Kaufman (Bowen Bowen, on brief), for appellant.
Eugene Murphy, Assistant Attorney General (Stephen D. Rosenthal, Attorney General, on brief), for appellee.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Appellant, George Arthur Nichols, challenges his conviction for possession of heroin with intent to distribute. Specifically, appellant contends that the evidence was insufficient to prove that he constructively possessed the illegal drugs. We disagree and affirm.
On August 29, 1989, while on midnight shift, Officer Keith Applewhite was dispatched to "Bermuda Run" to investigate a report that five African-American males were there selling drugs from a light blue Ford Escort with New York tags. Unable to locate such a vehicle, Applewhite left the area, and, while proceeding down a nearby road, he noticed a light blue Ford Escort in a convenience store parking lot. He drove by and observed four African-American males, including appellant who was exiting the vehicle from the driver's side door. Applewhite parked nearby and followed the vehicle when it left the lot. He pulled the car over when it made an unsignalled lane change. Inside the vehicle were four African-American males.
Appellant was the driver and was told to exit. He had no identification and gave Applewhite a fictitious name (James A. Willis) and address. Applewhite asked one of the passengers to get out, at which time the passenger "started running, took off." When he was apprehended, the passenger had about six hundred dollars on him "and some marijuana." Appellant told Applewhite that the car belonged to a friend. The actual owner of the car was never ascertained. Applewhite asked appellant if he could search the car, and appellant consented. In the rear trunk area of the hatchback, under some clothes, the police found a paper bag containing forty glassine envelopes of heroin.
Appellant admitted being at Bermuda Run "earlier," visiting a friend. It was never determined who owned the clothes under which the heroin was found. Defense counsel unsuccessfully moved to strike, arguing, inter alia, that there was insufficient evidence that appellant had knowledge and control of the drugs.
Appellant, who admitted to one prior felony conviction, took the stand and denied driving the car, telling Applewhite that he had been at Bermuda Run earlier, and that he consented to a search of the car. Appellant was transported to the station where he signed a Miranda rights form using the name James Willis.
At the conclusion of the evidence, appellant unsuccessfully renewed his motion to strike, arguing that there was insufficient evidence to establish constructive possession.
"[P]ossession of a controlled substance may be actual or constructive. . . . 'To support a conviction based upon 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 S.E.2d 844, 845 (1986)). "While proximity to a controlled substance is insufficient alone to establish possession, it is a factor to consider when determining whether the accused constructively possessed drugs." Brown v. Commonwealth, 15 Va. App. 1, 9, 421 S.E.2d 877, 882 (1992) (en banc). Thus, when considering an accused's proximity to illegal drugs, the Court looks to "the totality of the circumstances disclosed by the evidence."Womack v. Commonwealth, 220 Va. 5, 8, 255 S.E.2d 351, 353 (1979).
Viewing the evidence, as we must, in the light most favorable to the Commonwealth, the following acts, statements, conduct and circumstances were before the trial court:
1. Appellant's admission that he was at Bermuda Run earlier at a time when the police dispatcher received and relayed a report that five African-American males were seen there selling drugs from a light blue Ford Escort with New York tags;
2. Appellant used a fictitious name and address when stopped, and continued to use the phony name after being taken into custody;
3. Appellant was the driver of the car when it was stopped and admitted that he was giving a ride to the other passengers; and
4. Appellant had the keys to the car to open the hatch back/trunk and, by giving permission to search the vehicle, was exercising dominion and control of it.
"A defendant's false statements are probative to show he is trying to conceal his guilt, and thus is evidence of his guilt." Rollston v. Commonwealth, 11 Va. App. 535, 548, 399 S.E.2d 823, 831 (1991) (citing, inter alia, Carter v. Commonwealth, 223 Va. 528, 532, 290 S.E.2d 865, 867 (1982)). Therefore, appellant's use of a false name was a probative factor.
In Jetter v. Commonwealth, ___ Va. App. ___, ___, ___ S.E.2d ___, ___ (1994), this Court held that "possession of the car keys is significant evidence from which, when considered with the other evidence, it can be inferred that the drugs were subject to [the accused's] dominion and control." Cf.Burchette v. Commonwealth, 15 Va. App. 432, 425 S.E.2d 81 (1992) (noting absence of evidence that accused possessed set of keys).
Considering that the vehicle and its occupants fit the description, even to the New York license plates, of a vehicle from which drugs were suspected of recently being sold; that the appellant when stopped gave a fictitious name and did not identify the owner of the car; that he continued to give a fictitious name when taken into custody; and that he was the driver of the vehicle who had the means to and was exercising dominion and control of it, the facts are sufficient for the fact finder to infer beyond a reasonable doubt that appellant was aware of both the presence and character of the heroin found in the vehicle that he was operating and that it was subject to his dominion and control.
Accordingly, we affirm the decision of the trial court.
Affirmed.