Opinion
Record No. 0957-93-2
Decided: October 11, 1994
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND, James B. Wilkinson, Judge
Reversed and dismissed.
Thomas P. Collins (Eck Collins, on brief), for appellant.
Marla Lynn Graff, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.
Present: Judges Barrow, Koontz and Elder
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
The trial court, sitting without a jury, convicted the defendant of possession of cocaine, possession of pentobarbital, possession of marijuana with intent to distribute, and possession of a firearm while possessing cocaine. We conclude that the evidence did not support a finding that the defendant constructively possessed the contraband, even though it was found in a house which he occupied.
The evidence did not show that the defendant was in the dwelling recently enough to permit a reasonable inference that he was aware of the presence of the contraband. No direct evidence placed the defendant in the house. While police found mail addressed to him on a dresser in a bedroom, the postmark on the mail was six days before the discovery of the contraband. They also found evidence of at least one other person living in the house. The circumstantial evidence did not permit the trier of fact to infer that the defendant was present in the house at the time the contraband was there. Therefore, evidence of the defendant's occupancy was insufficient to permit the inference that he was aware of the presence of the contraband. See Drew v. Commonwealth, 230 Va. 471, 474, 338 S.E.2d 844, 845 (1986); Burchette v. Commonwealth, 15 Va. App. 432, 434-35, 425 S.E.2d 81, 83-84 (1992).
For these reasons, we reverse the judgments of conviction and dismiss the indictments.
Reversed and dismissed.