Opinion
Record No. 0545-92-4
November 9, 1993
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY F. BRUCE BACH, JUDGE.
Lance D. Gardner, for appellant.
Margaret Ann B. Walker, Assistant Attorney General (Stephen D. Rosenthal, Attorney General, on brief), for appellee.
Present: Chief Judge Moon, Judge Fitzpatrick and Senior Judge Duff.
Argued at Alexandria, Virginia.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Appellant, Henry C. Bolden, was convicted of possession of cocaine. On appeal, Bolden contends that there was insufficient evidence of constructive possession to support his conviction. Finding sufficient evidence that Bolden constructively possessed the cocaine, we affirm.
On the night of November 13, 1991, Officer Mark Perkins responded to a call by another police officer (Selby) to be on the lookout for a "bailout," a person fleeing from a car after a traffic stop. As Perkins was driving through the Gum Spring Apartments, he heard a movement on the other side of an eight-foot high fence separating the apartments from single family dwellings known as "Brown Court." Perkins shut off his engine, saw movement through the fence, but when he shined his light in the area, the movement stopped. He heard no voices. Perkins radioed two other officers in the area who thereafter apprehended Bolden in the backyard thicket, fifteen feet behind a house in Brown Court. The officers who apprehended Bolden testified that they found him crouching or lying prone in a "thicket" or "bamboo area . . . a small, clear spot within the patch of bamboo." When asked what he was doing in the area, Bolden said that he was being chased by someone who intended to rob him.
Within "a matter of minutes" after Bolden was apprehended, Deputy Scott Henshaw went to the area where Bolden was found and recovered a clear plastic bag containing rocks of crack cocaine along with a film canister containing more cocaine. Henshaw testified that the drugs were found within three feet of where Bolden was found, and Officer Yawornicky, who accompanied Henshaw, testified that the drugs were found in the same spot where Bolden was apprehended. The plastic bag recovered from the yard contained 20.63 grams of crack cocaine. Prior to being searched, Bolden was asked whether he possessed any drugs, to which he replied, "No." However, when Bolden was searched at the scene, he had more than $600 in cash and inside the packet of money was a marijuana cigarette. Bolden testified that he was chased from the apartments, through an opening in the fence, and behind the houses, just before Perkins shined his light in the area.
No other persons were seen in the area of the fence or the backyard during the event. Perkins explained that the area was saturated with fifteen police units, one of which was in a location where the officer could have seen persons running from the apartments, through the fence, and into the backyard area of Brown Court.
"When considering the sufficiency of the evidence on appeal of a criminal conviction, we must view all the evidence in the light most favorable to the Commonwealth and accord to the evidence all reasonable inferences fairly deducible therefrom. The jury's verdict will not be disturbed on appeal unless it is plainly wrong or without evidence to support it." Traverso v. Commonwealth, 6 Va. App. 172, 176, 366 S.E.2d 719, 721 (1988) (citations omitted). "The weight which should be given to evidence and whether the testimony of a witness is credible are questions which the fact finder must decide." Bridgeman v. Commonwealth, 3 Va. App. 523, 528, 351 S.E.2d 598, 601 (1986).
"[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) (citations omitted)). "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) (reh'g 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 in the light most favorable to the Commonwealth, the following acts, conduct, facts, and circumstances persuade us that there was sufficient evidence from which the jury could find that appellant knew of the presence and character of the recovered drugs and that he exercised dominion and control over them. Appellant was found hiding in a relatively private and secluded area at night after a police officer shined a light in his direction. See Johnson v. Commonwealth, 12 Va. App. 150, 153, 402 S.E.2d 502, 504 (1991) (finding it significant that drugs recovered during chase were in hedgerow between houses, a "relatively private area," thus, distinguishing Gordon v. Commonwealth, 212 Va. 298, 183 S.E.2d 735 (1971), where contraband was recovered on street, a "highly public area"). No other persons were seen in the area of the apartments, fence or backyard area of the Brown Court homes, all of which was under careful surveillance and saturated with police. Officer Perkins testified that he heard no voices or sounds resembling running or scuffling which would support appellant's story. The drugs were found within three feet of where appellant was apprehended; moreover, it is highly unlikely that such a large quantity of drugs valued at over one thousand dollars would be abandoned in a secluded area by someone else.See Collins v. Commonwealth, 13 Va. App. 177, 409 S.E.2d 175 (1991) (noting the trial judge's finding which "discounted" theory that someone else left drugs on street under car since cocaine was "'something of significant value and not something that one is likely to have abandoned or carelessly left in the area there.'"). This is true especially in an area which, according to Perkins, had no open-air drug markets and which was not known as a high crime area.
"The Commonwealth is not required to prove that there is no possibility that someone else may have planted, discarded, abandoned or placed the drugs or paraphernalia [where they were found near an accused]." Brown, 15 Va. App. at 10, 421 S.E.2d at 883. Theories offered by an accused as reasonable hypotheses of innocence, including an accused's explanation of how drugs got within his dominion and control, "if given credence, could have defeated the inference that appellant knowingly possessed the contraband." Id. However, even if an accused's statement to police "[is] not inherently incredible, the trial court [i]s not required to believe it." Id.
Accordingly, we cannot say that the verdict is plainly wrong or without evidence to support it. For the reasons stated above, the judgment is
Affirmed.