Opinion
Record No. 2183-91-4
July 6, 1993
FROM THE CIRCUIT COURT OF ARLINGTON COUNTY WILLIAM L. WINSTON, JUDGE.
Carl G. Womack, Jr., for appellant.
Marla Lynn Graff, Assistant Attorney General (Mary Sue Terry, Attorney General, on brief), for appellee.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
On appeal from his jury trial conviction of possession of cocaine with intent to distribute and possession of cocaine with intent to distribute within 1,000 feet of school property, Michael Darnell Grant contends that the trial court erred (1) in refusing his tendered circumstantial evidence instruction, and (2) in denying his motion to strike the evidence as insufficient to support his conviction. We find the evidence insufficient to support Grant's conviction and reverse the judgment of the trial court on that ground. We do not reach the refusal of the tendered instruction.
On April 8, 1991, while patrolling an area known for heavy drug activity, Officer Causey saw Grant cross the street and meet two women. One of the women handed Grant money, and he gave her something. The women were not apprehended.
When Causey and Officer Moore approached, Grant placed his hand in his pocket. Causey told Grant to remove his hand and identify himself. Grant ran.
Pursuing Grant around a building, across a parking lot, and down an alley, Causey lost sight of him for a second or two. When the officers finally caught Grant, a search of his person revealed a fifty dollar bill and a twenty dollar bill, but no drugs. Causey returned to the area where he had momentarily lost sight of Grant during the chase and discovered three plastic "baggies" that contained rock cocaine. Two of the "baggies" contained $75 rocks. The third contained a $50 rock and a $20 rock. The area where Causey found the drugs was next to an apartment building and adjacent to the building's parking lot. It was relatively clean and deserted. Maintenance workers picked up trash daily.
Grant contends that the Commonwealth failed to prove that he possessed the cocaine found on the ground. We agree. When he was finally caught, Grant was not in actual possession of the cocaine.
The Commonwealth argues that when he was caught, Grant was in constructive possession of the cocaine found next to the apartment building. The record does not support this contention.
"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 the character of the substance and that it was subject to
eliminates the reasonable hypothesis that the cocaine may have been dropped by someone other than Grant after the last cleaning.
While the circumstances observed by the officers and disclosed by their investigation are highly suspicious, those circumstances are insufficient as a matter of law to connect Grant beyond a reasonable doubt with the identified cocaine.See Gordon v. Commonwealth, 212 Va. 298, 183 S.E.2d 735 (1971).
The Commonwealth relies on Johnson v. Commonwealth, 12 Va. App. 150, 402 S.E.2d 502 (1991). Johnson is distinguishable because before Johnson saw what the officer had found or heard any description of it, Johnson himself described it as a bag of drugs. Johnson thus revealed guilty knowledge of the object found, thereby establishing a link to it.
Because we find the evidence insufficient to support Grant's conviction, we need not address the instruction question.
The judgment of the trial court is reversed, and the charges are dismissed.
Reversed and dismissed.