Opinion
Record No. 1773-92-3
Decided: May 10, 1994
FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG, Mosby G. Perrow, III, Judge
Affirmed.
Leslie S. Stargell (Phillips, Morrison Alexander, on brief), for appellant.
Robert B. Condon, Assistant Attorney General (Stephen D. Rosenthal, Attorney General, on brief), for appellee.
Present: Judges Barrow, Coleman and Koontz
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
In the Circuit Court of the City of Lynchburg, a jury convicted Curtis Edward Thrasher (Thrasher) of possession of cocaine in violation of Code Sec. 18.2-250. In this appeal, Thrasher contends that the trial court erred in denying his motion to set aside the verdict on the ground that the evidence was insufficient to show that he constructively possessed cocaine found in the room where police discovered him along with several other persons. For the reasons that follow, we affirm Thrasher's conviction.
The parties are familiar with the facts of this case. Accordingly, we restate only those facts necessary to explain our holding. On March 5, 1992, officers of the Lynchburg City Police executed a search warrant at an apartment leased by Demetro Mays (Mays). The warrant authorized the police to search for cocaine.
Commander G. W. Cyrus (Cyrus) led the raid on the apartment. After announcing their identity and purpose, officers secured various areas of the apartment and the persons found there. When Cyrus reached the bedroom at the rear of the apartment, he discovered the door ajar and observed that the room was filled with smoke which gave off a pungent (non-tobacco) odor. Thrasher and three other males in the room were in the process of lying on the floor in response to a police order shouted from elsewhere in the apartment.
Upon entering the bedroom, Cyrus observed a rock of crack cocaine resting in a piece of tin foil in the middle of the bed and a handmade smoking pipe on the floor beneath the bed, but visible from eye-level. Thrasher was three to four feet from the cocaine and three feet from the pipe. Cyrus found a second pipe on the bed. A third pipe was discovered in the room by another officer. None of the four men in the room had drugs on his person. None of the pipes were warm to the touch when inventoried by police fifteen minutes after their initial discovery.
Under well settled principles of appellate review, a jury verdict in a criminal case will not be set aside unless it is plainly wrong or without support in the evidence when viewed in the light most favorable to the Commonwealth. Evans v. Commonwealth, 215 Va. 609, 612, 212 S.E.2d 268, 271 (1975); Traverso v. Commonwealth, 6 Va. App. 172, 176, 366 S.E.2d 719, 721 (1988). 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." Powers v. Commonwealth, 227 Va. 474, 476, 316 S.E.2d 739, 740 (1984) (citing Eckhart v. Commonwealth, 222 Va. 447, 450, 281 S.E.2d 853, 855 (1981)) (emphasis added). Constructive possession does not have to be exclusive. Italiano v. Commonwealth, 214 Va. 334, 335-36, 200 S.E.2d 526, 528 (1973) ("officers are not required to choose among several suspects similarly situated, when any or all of the occupants may have committed the offense"); Ritter v. Commonwealth, 210 Va. 732, 741, 173 S.E.2d 799, 806 (1970). Thus, we can find that the trial court erred in denying Thrasher's motion only if the evidence does not credibly support a finding that Thrasher was aware of the presence and character of the cocaine found in the bedroom of Mays's apartment and that the cocaine was subject to his dominion and control.
The mere proximity to a controlled drug does not establish constructive possession. Fogg v. Commonwealth, 216 Va. 394, 395, 219 S.E.2d 672, 673 (1975). However, the trier of fact may consider proximity to a controlled substance as one factor in determining whether the accused constructively possessed the drugs. Lane v. Commonwealth, 223 Va. 713, 716, 292 S.E.2d 358, 360 (1982); Brown v. Commonwealth, 15 Va. App. 1, 9, 421 S.E.2d 877, 882 (1992) (en banc); Hambury v. Commonwealth, 3 Va. App. 435, 438, 350 S.E.2d 524, 525 (1986).
Thrasher contends that, other than his proximity to the cocaine, no act, statement or conduct on his part establishes his awareness of the presence and character of the drugs, thereby precluding the trier of fact from inferring that Thrasher constructively possessed them. We disagree. It is not necessary for the Commonwealth to show words, actions or conduct of the accused consonant with possession. Rather, such evidence is merely among the avenues of proof the Commonwealth may pursue.
In Eckhart, for example, the Supreme Court found that evidence which proved Eckhart was discovered by police standing by the open door of a room where marijuana and drug paraphernalia were plainly visible was sufficient to sustain a conviction based upon constructive possession. Eckhart did not act, speak or conduct herself in any manner that established awareness of the presence and character of the drugs; nonetheless, the Court determined that other facts or circumstances established that awareness. The Court found that the trier of fact "could reasonably conclude that [Eckhart] was aware of the contents of the room and stationed herself where she could exercise dominion and control over the marijuana." Eckhart, 222 Va. at 451, 281 S.E.2d at 855.
The same rationale applies to the facts of this case. Thrasher's proximity to the drugs, the presence of the drug paraphernalia and the acrid smoke in the room are circumstances relevant to and supportive of the jury's determination that Thrasher constructively possessed the drugs.
The cases relied on by Thrasher are easily distinguished. In Clodfelter v. Commonwealth, 218 Va. 619, 238 S.E.2d 820 (1977), the defendant was not present when the hotel room where the drugs were found was searched, and another individual had access to the room in his absence. Id. at 621-23, 238 S.E.2d at 821-22. In Huvar v. Commonwealth, 212 Va. 667, 187 S.E.2d 177 (1972), the defendant was one of eleven persons in the apartment and was not in the room where the drugs were found. Id. at 668, 187 S.E.2d at 177-78. In Wright v. Commonwealth, 217 Va. 669, 232 S.E.2d 733 (1977), the drugs were partially hidden from view, and other circumstances suggested exclusive possession by another occupant of the room. Id. at 670, 232 S.E.2d at 734. Finally, in Pemberton v. Commonwealth, ___ Va. App. ___, 440 S.E.2d 420 (1994), the sole factor associating the accused with the discarded drugs was his proximity to the place of their disposal, and circumstances suggested that the drugs may just have easily been discarded by a third party fleeing through the same room as by the accused. Id. at ___, 440 S.E.2d at 423.
Here, Thrasher was present where drugs were found in plain view, and the circumstances suggested that he could have easily exercised dominion and control over those drugs. The circumstances did not suggest that the drugs were presently or had recently been in the exclusive possession of one of the other persons in the room.
The facts of Thrasher's case are strongly similar to those of Minor v. Commonwealth, 6 Va. App. 366, 367-68, 369 S.E.2d 206, 207 (1988), and Brown v. Commonwealth, 5 Va. App. 489, 490-91, 364 S.E.2d 773, 773-74 (1988). In those cases, which arose out of the same incident, the defendants were found together in a bedroom within reach of cocaine found on the bed. This Court found the evidence sufficient to prove constructive possession by each man present.
The evidence being sufficient to support the jury's verdict, we cannot say that the trial judge erred in denying Thrasher's motion to set aside the verdict.
Affirmed.