Summary
In Whitehead a police officer “saw Whitehead toss a small [pill] bottle in the air, place it on a church windowsill, and abandon it.” Whitehead, 1995 WL 79894, at *1, 1995 Va.App. LEXIS 191, at *2.
Summary of this case from Christian v. CommonwealthOpinion
Record No. 0908-93-1
Decided: February 28, 1995
FROM THE CIRCUIT COURT OF SOUTHAMPTON COUNTY, E. Everett Bagnell, Judge
H. Taylor Williams, IV, for appellant.
Kathleen B. Martin, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.
Present: Judges Benton, Willis and Bray
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
The judgment of the trial court is reversed and the charge against Cedric Whitehead is ordered dismissed. Although the Commonwealth proved that Whitehead possessed the pill bottle, it did not prove beyond a reasonable doubt that he knowingly or intentionally possessed cocaine.
"[T]o convict an accused of possession of a particular unlawful substance, the Commonwealth must prove the accused was aware of the character of the particular substance at issue." Smith v. Commonwealth, 16 Va. App. 626, 627-28, 432 S.E.2d 1, 2 (1993). "[S]uch knowledge may be proved by evidence of acts, declarations or conduct of the accused from which the inference may be fairly drawn that he knew of the existence of [cocaine] at the place where [it] was found." Ritter v. Commonwealth, 210 Va. 732, 741, 173 S.E.2d 799, 806 (1970).
Officer Welch saw Whitehead toss a small bottle in the air, place it on a church windowsill, and abandon it. This observation alone was insufficient to prove that Whitehead knew the bottle contained cocaine residue. Rather, it supports the conclusion that he attached no value or significance to the bottle.
The Commonwealth relies on Whitehead's statement that he picked the bottle up thinking that it might contain cocaine, but discarded it when he perceived that it did not. This statement fails to prove that Whitehead knew the bottle contained cocaine residue. His mere hope that it might did not rise to the level of knowledge that it did. His stated belief that the bottle did not contain cocaine is confirmed by the fact that he promptly discarded it.
The evidence was insufficient to establish that Whitehead knew that there was cocaine residue in the pill bottle. "The evidence [did] not exclude all reasonable conclusions inconsistent with [Whitehead's] guilt." Burton v. Commonwealth, 215 Va. 711, 713, 213 S.E.2d 757, 759 (1975).
The judgment of the trial court is reversed and the indictment is dismissed.
Reversed and dismissed.