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Dowdell v. Commonwealth

Court of Appeals of Virginia. Argued at Norfolk, Virginia
Mar 7, 1995
Record No. 1694-93-1 Record No. 1764-93-1 Record No. 1836-93-1 (Va. Ct. App. Mar. 7, 1995)

Opinion

Record No. 1694-93-1 Record No. 1764-93-1 Record No. 1836-93-1

Decided: March 7, 1995

FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON, Nelson T. Overton, Judge

Timothy G. Clancy (David M. Tichanski, on brief), for appellant Jeremy Dowdell.

Timothy G. Clancy (J. Ashton Wray, Jr., on brief), for appellant Karl Beamon.

Timothy G. Clancy (Cumming, Hatchett, Moschel, Patrick Clancy, on brief), for appellant Vernon Cromartie.

Leah A. Darron, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.

Present: Judges Baker, Benton and Willis


MEMORANDUM OPINION

Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.


Jeremy Dowdell, Karl Beamon, and Vernon Cromartie were indicted for breaking and entering a dwelling in the night time while possessing a deadly weapon and having the intent to obstruct justice, in violation of Code Sec. 18.2-92; possession of cocaine with intent to distribute, in violation of Code Sec. 18.2-248; and possession of a firearm while in possession of the cocaine, in violation of Code Sec. 18.2-308.4. In addition, Dowdell and Cromartie were each indicted for possessing a firearm after having been convicted of a felony, in violation of Code Sec. 18.2-308.2(a). The three men were tried together at a bench trial, and they were all acquitted of the charges that they possessed cocaine and possessed a weapon while in possession of cocaine. They were each convicted of the breaking and entering offense. Dowdell and Cromartie were each convicted of possession of a firearm after having been convicted of felonies. On this appeal, they challenge the sufficiency of the evidence to sustain the convictions. For the reasons that follow, we reverse the convictions.

I.

The evidence proved that at 10:30 p.m. a private security guard responded to a disturbance on the grounds of an apartment complex. The guard dispersed a large crowd and ordered non-residents to vacate the property. As he was sitting in his vehicle and writing an incident report, he noticed several people running out of apartment Q5. A fist fight appeared imminent. As the guard was exiting his vehicle, he noticed an individual, whom he identified as Beamon, unzip his jacket and expose an automatic weapon. When the guard yelled, Beamon concealed the weapon under the coat and ran into apartment Q5. The guard returned to his vehicle and requested that his dispatcher call the police. The guard then saw Beamon exit apartment Q5 and enter Q6. Although he saw three or four people standing by the apartment, Beamon was the only person he saw enter Q6. While waiting for police, the guard noticed shadows of persons standing at the window of apartment Q6.

Judy Frye, the tenant in apartment Q6, testified that she was alone in her apartment that evening when she heard a disturbance outside. Frye saw Beamon, whom she knew as a friend, and two other men drive a car onto the parking lot. Later she heard sounds of a fight. As she was looking out her window, she heard a knock on her door. When she opened her door and saw no one there, she stepped outside and looked into the adjoining apartment because she heard argument. She heard someone in that apartment telling "them" to get out. A woman then approached Frye and began an argument. As the woman and Frye argued, Beamon, Cromartie, and Dowdell came from the adjacent apartment, "brushed past" Frye and ran into Frye's apartment. Her door was open about six inches. Frye testified that Beamon was her friend, that he had been in her home a few times, and that she was dating one of Beamon's relatives. She said that when Beamon entered with the two men she did not ask Beamon any questions because she was engaged in an argument. She also testified that although Beamon did not formally ask her that evening to enter her apartment, he had her permission to be in the apartment.

Frye continued to argue with the woman at her door until the woman struck her. Frye then asked Beamon to help. After the argument concluded, Frye went into her apartment and saw the three men coming from the bathroom and the area of the hallway. When she asked them what was happening, they told her they had been having an argument with a man outside. She and the three men went into a bedroom and looked out a window. The man with whom they had a dispute was still outside. The police also had arrived. The three men told her that they intended to wait in her apartment until the police left.

Frye testified that after she spoke to the men in her apartment she asked them to leave because the apartment manager had rules concerning visitors. She did not want the apartment manager to evict her. She testified that the men responded that they "were just going to sit there . . . until the police officer left." She testified that she simply "left it at that."

Frye remained with the three men in the bedroom and continued to look out the window to see whether the police officer had gone. One of the men went to the bathroom and returned. She testified that the men never threatened her and that she was not afraid of them. She further testified that she was concerned only about the reaction of the apartment manager to the people in the apartment. She could have left her apartment at any time.

Frye then answered a knock at her door. Two of her acquaintances came in to discuss the disturbance that had occurred. While Frye and her visitors were in the dining area with the three men, the apartment manager knocked on Frye's door. The men scattered into the back of Frye's apartment. Frye testified that she heard porcelain "banging" in the bathroom and heard someone say "something about they had to get the other gun." She did not know who made the statement but believed that it was not Beamon's voice.

While Frye was standing at her door with the manager, a police officer arrived. Frye testified that she then became concerned. The apartment manager testified that Frye was very nervous, had tears in her eyes, and used a lot of gestures and eye contact. The police officer testified that when she arrived on the scene, Frye was outside her apartment and was "upset and crying." At the police officer's direction, Frye and the manager left the apartment.

The police ordered the men to exit the apartment. After a lengthy delay, Dowdell, Beamon, and Cromartie came from the apartment. The police recovered a revolver and an automatic pistol from the water tank of the rear bathroom toilet. They also recovered cocaine from a bedroom. Frye testified that she did not own the cocaine or the weapons and had not placed the weapons in the toilet's tank. She also testified that she never saw any of the three men with a weapon.

The trial judge denied the motions to strike the breaking and entering charge. Although the trial judge found that the evidence failed to prove that either of the three men possessed the cocaine (and, thus, dismissed the cocaine charge and the possession of a gun while in possession of cocaine charge), the trial judge found that the evidence was sufficient to prove that the men possessed firearms while breaking into the apartment and to prove the other elements of the burglary charge. He also found Cromartie and Dowdell guilty of possession of a firearm after having been previously convicted of felonies.

II.

On this appeal Beamon, Cromartie, and Dowdell contend that the Commonwealth failed to prove the elements necessary to sustain the breaking and entering conviction. They argue that the evidence did not prove that they entered the apartment contrary to the will of Frye, that they were armed when they entered the apartment, or that they had the intent to obstruct justice when they entered the apartment.

Hiding or seeking "to escape [an] officer by merely running away [is] not such an obstruction as the law contemplates." Jones v. Commonwealth, 141 Va. 471, 478, 126 S.E. 74, 76 (1925). The evidence proved that the three men entered the apartment in an apparent attempt to avoid detection or to await the end of the disturbances in which they had been involved. No evidence proved that they had any contact with police officers before they entered the apartment or even that police officers were present when they entered the apartment.

Although the men peered through the windows, no facts or circumstances proved that the defendants intended by threat or force to attempt to intimidate or impede a law enforcement officer. See Polk v. Commonwealth, 4 Va. App. 590, 595, 358 S.E.2d 770, 773 (1987). Keeping a lookout for the presence of police does not constitute obstruction. "[T]here is a broad distinction between avoidance and resistance or obstruction." Jones, 141 Va. at 478, 126 S.E. at 77. Accordingly, we conclude that no evidence proved circumstances from which the trier of fact could have inferred beyond a reasonable doubt an intent to commit any acts to obstruct justice. Because we hold that the evidence failed to prove that the men entered the apartment with the intent to obstruct justice, the offense charged in the indictment, we do not address the other elements.

III.

The trial judge ruled that the evidence was sufficient to prove beyond a reasonable doubt that Dowdell and Cromartie, both previously convicted felons, unlawfully possessed a firearm. In support of that ruling, he found as follows:

You have three defendants and we have two firearms. Somebody could argue that all three of them couldn't be guilty of entering that house while armed.

The evidence shows that this was a joint operation by all three of them. They all rushed in. Pistols came in with them. They are responsible for their actions in that regard.

Similarly, as to Mr. Cromartie and Mr. Dowdell. Their indictments for transporting a pistol or other firearms after having been convicted of felonies under the laws of the Commonwealth, come under the same heading.

The three of them were engaged in a joint project. Those two had no right to possess or transport a firearm and they did. So, I deny the motion on those indictments which I mentioned for the reasons mentioned.

These findings presuppose knowledge by Dowdell and Cromartie of the presence of the firearms. However, that is precisely the element the Commonwealth was required to prove. The statute provides that "[i]t shall be unlawful for . . . any person who has been convicted of a felony . . . to knowingly and intentionally possess . . . any firearm." Code Sec. 18.2-308.2(A). No evidence proved that Dowdell or Cromartie possessed the firearms. The only evidence supporting actual possession of a firearm is the security guard's testimony that Beamon had a gun under his coat when he was outside the apartment. Absent proof of actual possession of a firearm, evidence of constructive possession of a firearm is sufficient to sustain a conviction under Code Sec. 18.2-308.2(A). Blake v. Commonwealth, 15 Va. App. 706, 708, 427 S.E.2d 219, 220 (1993).

Proof that an accused exercised "dominion and control [over the firearm is] necessary to show constructive possession." Id. at 709, 427 S.E.2d at 221. The evidence did not show that either Cromartie or Dowdell exercised dominion and control over the two firearms found in the toilet tank. When Beamon was arrested, he did not have in his possession a gun. No evidence proved that Cromartie or Dowdell ever saw him with a gun or knew that he possessed a gun.

The evidence proved that when the men first entered the apartment they went into the bathroom and the hallway. No evidence proved which of the three was in the bathroom or whether the guns were placed in the tank at that time. After Frye entered the apartment and spoke to the men, she and the three men went into a bedroom to peer out a window. All three men initially went into the bedroom. While she was looking out the window, she heard one of the men go to the bathroom. She did not know who it was.

Frye testified that later, while she and the men were in the living room area, someone knocked on her door. The three men again went out of her presence to the back of the apartment. She testified that she "heard something that sounded like porcelain banging, like the toilet." She also "heard one of them say something about they had to get the other gun." She did not know who made the statement or whether the person was in the bathroom or the adjacent bedroom. She could not see into the bathroom or into the bedroom that adjoined the bathroom.

On this evidence, the Commonwealth failed to prove that Dowdell or Cromartie possessed either of the two guns that the police found in the toilet's water tank.

For these reasons, we reverse the convictions.

Reversed and dismissed.


Summaries of

Dowdell v. Commonwealth

Court of Appeals of Virginia. Argued at Norfolk, Virginia
Mar 7, 1995
Record No. 1694-93-1 Record No. 1764-93-1 Record No. 1836-93-1 (Va. Ct. App. Mar. 7, 1995)
Case details for

Dowdell v. Commonwealth

Case Details

Full title:JEREMY DOWDELL v. COMMONWEALTH OF VIRGINIA KARL BEAMON v. COMMONWEALTH OF…

Court:Court of Appeals of Virginia. Argued at Norfolk, Virginia

Date published: Mar 7, 1995

Citations

Record No. 1694-93-1 Record No. 1764-93-1 Record No. 1836-93-1 (Va. Ct. App. Mar. 7, 1995)