Opinion
Record No. 2273-92-2
April 19, 1994
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND ROBERT W. DULING, JUDGE
Susan D. Hansen for appellant.
Eugene Murphy, Assistant Attorney General (Stephen D. Rosenthal, Attorney General, on brief), for appellee.
Present: Chief Judge Moon, Judges Coleman and Elder
Argued at Richmond, Virginia
Pursuant to Code § 17-116.010, this opinion is not designated for publication.
In this criminal appeal, we find the evidence sufficient to prove beyond a reasonable doubt that Douglas Cunningham possessed cocaine with an intent to distribute it. We also find the evidence sufficient to prove beyond a reasonable doubt that Cunningham possessed cocaine within 1000 feet of an elementary school in violation of Code § 18.2-255.2. Accordingly, we affirm the conviction.
"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."Traverso v. Commonwealth, 6 Va. App. 172, 176, 366 S.E.2d 719, 721 (1988).
While police officers were conducting a raid on a house suspected of being a place from which drugs were being distributed, two men drove up in a car. The driver called one of the officers "Dorito head," made derogatory remarks to the officers, revved his car engine, and "sprayed" exhaust smokes at the officers. The police removed the driver, Douglas Cunningham, and arrested him for disorderly conduct. Cunningham admitted that he had been drinking a few beers that night. The police also removed Darryl Moses from the passenger's seat. Following Cunningham's arrest, the officers searched the car.
In the vehicle, which was registered to Cunningham's mother, the police found two handguns under the front passenger seat. The handle of one handgun was visible when an officer shone his flashlight onto the floor of the vehicle. Under the passenger's floor mat was a "baggie" containing sixty-one small bags of cocaine (weighing a total of approximately 3.09 grams). Under the driver's side floor mat was $410.25. When searched, Cunningham had no money on him; Moses had $109 on him. When stopped, the vehicle was 450 feet from Wickham Elementary School.
The police also searched the vehicle's trunk, where they found a box containing $1,000, a denim bag in which were plastic bags containing 52.3 grams of cocaine, and a paper towel containing six small bags of marijuana.
Cunningham and Moses were the sole occupants of the vehicle. The two men shared the same home address and were best friends.
At Cunningham's bench trial, Moses testified that all the drugs, contraband, and money belonged to him and that Cunningham did not know that the drugs were in the vehicle. Moses testified that on the night of his arrest, he had stolen the drugs and money from a man named Tippi around 5:00 or 6:00 p.m. He testified that he had sold some of the drugs and kept the rest for personal use. He testified that after the theft, he met Cunningham and asked Cunningham to drive the car because he was "too high." Moses testified that, although the vehicle was registered to Cunningham's mother, he actually owned the vehicle. He explained that he had asked her to register the car in her name until he received a driver's license.
Cunningham's mother testified that she did not have a driver's license. She also testified that her son and Moses had been at her house from 6:00 p.m. to 11:30 p.m. on the night of their arrest. The two friends left to go to Bethel Street, which was where they were arrested outside Cunningham's sister's house, which at the time was being raided by the police as a suspected drug distribution center.
Cunningham contends that the uncontradicted evidence shows that the drugs belonged to Moses and that it is insufficient to prove that he had knowledge of the presence of the drugs or that he knowingly exercised dominion and control of the drugs.
I. CONSTRUCTIVE POSSESSION
To prove constructive possession of drugs, the Commonwealth must establish "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). "The possession of drugs need not always be exclusive. It may be shared with another."Castaneda v. Commonwealth, 7 Va. App. 574, 583, 376 S.E.2d 82, 87 (1989) (en banc). "The duration of the possession is immaterial." Gillis v. Commonwealth, 215 Va. 298, 302, 208 S.E.2d 768, 771 (1974).
Because drugs, money and guns were found at several places in the vehicle Cunningham was driving, that evidence and the other circumstances were sufficient to prove that he knew the drugs were present in the vehicle. Cunningham was exercising dominion and control over the vehicle, and the drugs were not in the exclusive control of the passenger. Under these circumstances, the fact finder could infer that drugs were in the joint, constructive possession of Cunningham and his passenger. See Brown v. Commonwealth, 15 Va. App. 1, 9, 421 S.E.2d 877, 882 (1992). In Brown, the appellant drove a vehicle in which police found a change purse containing drugs on the dashboard and "baggies" with cocaine residue under the floorboard. The appellant did not provide the names of any passengers whom he said had ridden with him. In affirming Brown's conviction based upon constructive possession, this Court stated, "appellant drove the [vehicle] containing the drugs to . . . an area known to the police as a place where drugs were distributed. . . . Although the [vehicle] was registered in the name of [another] it was in his custody and under his dominion and control." Id. While mere proximity to a controlled substance is not sufficient to establish dominion and control, it is a factor to consider when determining whether the defendant constructively possessed drugs. Lane v. Commonwealth, 223 Va. 713, 716, 292 S.E.2d 358, 360 (1982). Cunningham's possession of the vehicle and his proximity to drugs under circumstances such as existed, where the compelling reasonable inference is that the person in possession of the vehicle also possesses the drugs, is sufficient to prove constructive possession.
Thus, the dispositive issue is whether the circumstantial evidence points unerringly to the fact that Cunningham knew that drugs were in the vehicle to the exclusion of any reasonable hypothesis to the contrary. "Where . . . the element of knowledge [is] based on circumstantial evidence, 'all necessary circumstances proved must be consistent with guilt and inconsistent with innocence.'" Hairston v. Commonwealth, 5 Va. App. 183, 186, 360 S.E.2d 893, 895 (1987) (quoting Garland v. Commonwealth, 225 Va. 182, 184, 300 S.E.2d 783, 784 (1983)). To have knowledge, the defendant must be "aware of the presence and character of the drugs and [must] intentionally and consciously posses them." Andrews v. Commonwealth, 216 Va. 179, 182, 217 S.E.2d 812, 813 (1975). "The requisite knowledge on the part of the accused may be proved by evidence of acts, declarations or conduct showing that he knew of the existence of narcotics at the place they were found." Harmon v. Commonwealth, 15 Va. App. 440, 447, 425 S.E.2d 77, 81 (1992). Cunningham's words and actions must be consistent with a knowing exercise of dominion and control over the drugs and inconsistent with every reasonable hypothesis of innocence.
The circumstantial evidence in this case permitted the fact finder to infer that Cunningham knew of the presence and character of the cocaine found in the car that he was operating. The quantity and location of the drugs, the quantity and location of the money, the fact that Moses possessed money but Cunningham had none on him yet money was under the floor mat where he was the driver, and the location of the two weapons in the vehicle, together with the relationship between Cunningham and Moses, are all facts that tend to show that Cunningham knew that those items, including the drugs, were in the vehicle. Under these circumstances, it is implausible to think that Cunningham did not know that the drugs were present in the vehicle. Furthermore, Moses's account of what occurred was that he had stolen by force a large quantity of cocaine and money from one Tippi at 5:00 or 6:00 p.m. After stealing the drugs, he said that he sold some and used some. Cunningham's mother testified that her son and Moses arrived at her house together at 6:00 p.m.
Although Moses insisted at trial that Cunningham knew nothing about the cocaine that he had stolen from Tippi, he would have the fact finder believe that within an hour or less, he forcibly stole a substantial quantity of drugs from an individual, sold part of the drugs, used some of the drugs, hid the drugs, the money and firearms in several places within the vehicle, picked up his friend, and drove across town to his friend's mother's house without ever revealing to his friend the presence of the cocaine in the vehicle. Furthermore, Moses admitted at trial that he had told Cunningham that he was "too high" to drive. Cunningham's mother testified that the two best friends never kept secrets from each other. On this evidence, it was reasonable for the fact finder to have found that Cunningham knew that the cocaine was present in the car he was operating. Sufficient credible evidence supports that finding of fact and the further finding that Cunningham was exercising dominion and control over the drugs.
II. INTENT TO DISTRIBUTE
The quantity of drugs, the separate packaging for distribution, the presence of firearms, the sum of money found in the car, and the fact that Moses admitted to having sold part of the cocaine supported the inference by the fact finder that Cunningham and Moses intended to distribute the cocaine found in the vehicle.See Early v. Commonwealth, 10 Va. App. 219, 222, 391 S.E.2d 340, 341-42 (1990); Hambury v. Commonwealth, 3 Va. App. 435, 438 350 S.E.2d 524, 525 (1986); Colbert v. Commonwealth, 219 Va. 1, 4, 244 S.E.2d 748, 749 (1978); Hunter v. Commonwealth, 213 Va. 569, 570, 193 S.E.2d 779, 780 (1973). In fact, Moses testified that he had already distributed part of it. Thus, the evidence is sufficient to prove beyond a reasonable doubt that the defendant possessed the cocaine with an intent to distribute it.
III. VIOLATION OF CODE § 18.2-255.2
The Commonwealth proved beyond a reasonable doubt that Cunningham possessed cocaine within 1,000 feet of an elementary school in violation of Code § 18.2-255.2. See Commonwealth v. Burns, 240 Va. 171, 176-77, 395 S.E.2d 456, 459 (1990). A police officer testified that he had measured the distance from Moses's vehicle to Wickham Elementary School, and the distance was 450 feet. The officer's testimony was not rebutted and was accepted by the finder-of-fact. Accordingly, defendant's convictions are affirmed.
Affirmed.