Opinion
Record No. 2000-91-2
April 27, 1993
FROM THE CIRCUIT COURT OF HENRICO COUNTY BUFORD M. PARSONS, JR., JUDGE.
Lauren A. Caudill (Morchower, Luxton Whaley, on brief), for appellant.
Thomas C. Daniel, 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.
Albert Brown Smith, Jr., was convicted of possession of cocaine with intent to distribute in violation of Code § 18.2-248 and possession of cocaine while possessing a firearm in violation of Code § 18.2-308.4. On appeal, he contends that the evidence at trial was insufficient to prove beyond a reasonable doubt either offense. We agree that the evidence was not sufficient and we reverse the convictions.
I.
The evidence proved that at 10:00 a.m. on May 22, 1990, the resident manager of Country Place Apartments and two of her associates went to Apartment F to make a mechanical inspection of the utilities inside the apartment. The apartment was leased to Angela Trent. When no one answered her knock, the manager opened the door using a pass key. Once inside the door, they had to go upstairs because the apartment was at the second level. When they reached the top of the stairs, they saw a man, who was identified as Smith, standing in the hallway near the bathroom. They informed Smith that they entered to inspect the apartment. He did not respond. The manager entered the bathroom and her companions went into the kitchen. While the manager was in the bathroom, Smith remained in the hallway near the bathroom door.
During her inspection, the manager opened the closed shower curtain to inspect the tiles and faucets, and she saw in the bathtub a triple beam scale, a plate, a razor blade, and a sandwich bag containing a white powder. After she saw those items, she pretended to continue the bathroom inspection. When she left the bathroom, Smith entered the bathroom. The manager went to her companions and said that drugs were in the bathtub. They immediately left the apartment.
The manager went directly to her office and telephoned the police. She gave the police a description of the man in the apartment and told them he was known as "Big Daddy." Although Smith was not the lessee of the apartment, the manager had seen him enter the apartment on several occasions six weeks to a month before the inspection.
Three and one-half hours after the manager entered the apartment, the police arrived and searched the apartment. No one was in the apartment when they arrived. The police discovered eighty-four small bags containing a substance that was later determined to be cocaine. The bags were found in a bedroom dresser drawer under a woman's clothing. On the dresser, they found a pager bill and a notice from a department of health, both of which had Smith's name on them. On a shelf in the bedroom closet, the police found a loaded shotgun. In that same closet, the police found jeans, a pair of tennis shoes, and some type of boots.
In the bathroom, the police found a plate, a razor blade, and a scale. In the kitchen, the police found a pager that was not in operating condition. At another place in the apartment, the police found a photograph of Smith sleeping on a sofa with the inscription, "Big Daddy Sleeping, December, 1989." None of the items that were removed from the apartment were checked for fingerprints.
On this evidence, Smith was convicted of both offenses. On the cocaine charge, he was sentenced to twenty years in the penitentiary, with ten years suspended. On the firearms charge, he was given a two year sentence, all of which was suspended.
II.
"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 [accused] was aware of both the presence and character of the substance and that it was subject to his dominion and control.'" Drew v. Commonwealth, 230 Va. 471, 473, 338 S.E.2d 844, 845 (1986) (quoting Powers v. Commonwealth, 227 Va. 474, 476, 316 S.E.2d 739, 740 (1984)). The evidence in this case did not prove that Smith made any statements or conducted himself in any manner that tended to prove he knew that cocaine was in the apartment. No evidence proved that he knew that the items were in the bathtub behind the closed shower curtain or that he knew that cocaine was in the dresser drawer under a female's clothing.
No evidence proved that Smith lived in the apartment. He was not the lessee of the apartment. The evidence that he had been seen entering the apartment on several occasions four to six weeks prior to the day of the search proved, at most, that he was a casual visitor. None of the testimony proved that men's clothing was found in the apartment. Proof that jeans, tennis shoes and "some type of construction — maybe hiking-type of boots, possibly" did not tend to prove that those items belonged to a man. Moreover, Smith was described as being six feet tall and weighing in excess of three hundred pounds. No evidence proved that any of the clothing items in the apartment were of a size consistent with a person of that physique.
The facts of this case are similar to those cited in Wynn v. Commonwealth, 5 Va. App. 283, 362 S.E.2d 193 (1987). This Court reversed that conviction where the evidence proved that Wynn had been in the apartment leased to his female friend. After he left the apartment, the police searched it and found cocaine throughout the apartment, men's clothing in one of the bedrooms, and a note on a dresser addressed to Wynn. Id. at 285-86, 362 S.E.2d at 194-95. This Court found that "[t]he evidence fail[ed] to establish a linkage or connection between Wynn and the drugs sufficient to prove that Wynn was aware of the presence and character of the drugs and to show that the drugs were subject to his dominion and control." Id. at 288, 362 S.E.2d at 196. See also Huvar v. Commonwealth, 212 Va. 667, 187 S.E.2d 177 (1972) (per curiam).
The record in this case proved that when the manager entered the bathroom, the shower curtain above the bathtub was closed. When she opened the curtain to inspect the area around the bathtub, no evidence proved that Smith saw the items in the bathtub or that he knew the items were there. The manager did not tell Smith that she saw the items, did not ask him if they were his, and did not make any inquiry of him. After she saw the items, she pretended to finish the inspection and departed. The record is silent whether she left the shower curtain open or closed.
Although the evidence proved that after the manager left the bathroom Smith entered it, no evidence proved that he used the shower or saw the items in the bathtub. See Wright v. Commonwealth, 217 Va. 669, 232 S.E.2d 733 (1977) (per curiam). The trier of fact could not simply assume that when Smith went into the bathroom he looked behind the shower curtain into the tub. What he did while in the bathroom or what he observed in the bathroom was not supplied by the evidence. "Suspicious circumstances, including proximity to a controlled drug, are insufficient to support a conviction." Behrens v. Commonwealth, 3 Va. App. 131, 135, 348 S.E.2d 430, 432 (1986).See also Drew v. Commonwealth, 230 Va. at 474, 338 S.E.2d at 846.
The evidence was insufficient to prove constructive possession by Smith. Because possession is an essential element of the crimes with which Smith was charged, we reverse both convictions and dismiss the indictments.
Reversed and dismissed.