finding that a factfinder could “infer from the value of drugs found on premises owned or occupied by an individual that it is unlikely anyone who is a transient would leave a thing of great value in a place not under his dominion and control”
How later courts described this case
- finding that a factfinder could “infer from the value of drugs found on premises owned or occupied by an individual that it is unlikely anyone who is a transient would leave a thing of great value in a place not under his dominion and control”
- holding that the Commonwealth "is not required to prove that there is no possibility that someone else may have planted, discarded, abandoned or placed drugs"
- holding that the factfinder could consider that drugs were found “on the dashboard in plain view”
- holding that a drug-detecting dog’s alert supplied probable cause to search an automobile
Written by the judges who cited it.
The opinion
Benton, X, with whom Koontz, C.X, and Barrow, X,
join, dissenting.
I concur with the views expressed in Judge Elder’s dissenting opinion that the initial detentions of William E. Brown and the automobile were constitutionally impermissible. However, I would reverse the conviction and dismiss the case because the evidence was insufficient to support the conviction.
“In order to convict a defendant of ‘possession’ of a narcotic drug ... it generally is necessary to show that defendant was aware of the presence and character of the particular substance and was intentionally and consciously in possession of it.” Ritter v. Commonwealth, 210 Va. 732, 741 , 173 S.E.2d 799, 805 (1970). Proof that illegal drugs were discovered in an automobile that was subject to Brown’s dominion and control is insufficient standing alone to support a conviction under Code § 18.2-250. The prosecution was required to prove beyond a reasonable doubt that Brown knew of the presence and nature of the illegal substances. Glenn v. Commonwealth, 10 Va. App. 150, 154 , 390 S.E.2d 505, 507 (1990).
As noted in Behrens v. Commonwealth, 3 Va. App. 131 , 348 S.E.2d 430 (1986), “[sjuspicious circumstances, including proximity to a controlled drug, are insufficient to support a conviction” for their possession. To convict a defendant of possession of an illegal narcotic drug, the Commonwealth must show that the defendant “was aware of the presence and character of the drug and was intentionally and consciously in possession of it.”
Id. (citations omitted).
*15 Although the automobile was subject to Brown’s dominion and control by virtue of Brown’s admission that he drove it to the discotheque, no evidence exists upon which the fact finder could have reasonably found that Brown was aware of the presence or nature of the illegal drug and paraphernalia discovered in the automobile. Brown did not own the automobile; he borrowed it from Theresa Johnson. The drugs and paraphernalia were not in plain view. The cocaine was enclosed in a purse. Scales and other paraphernalia were contained in a black vinyl bag under the driver’s seat. A closed file case lying on the rear floorboard contained plastic baggies with cocaine residue.
Although “[kjnowledge of the presence and character of the controlled substance . . . may be shown by evidence of the acts, statements or conduct of the accused,” id., this record contains no such indicia of knowledge. Brown denied knowledge of the contraband, and he testified that several other persons rode in the automobile with him to the discotheque. When the police arrived, Brown did not attempt to flee, but acknowledged that he was the operator of the automobile. Brown made no statements from which it can be concluded that he was aware of the items in the automobile. “[Wjhere . . . the element of knowledge [is] based on circumstantial evidence, ‘all necessary circumstances proved must be consistent with guilt and inconsistent with innocence and exclude every reasonable hypothesis of innocence.’” Hairston v. Commonwealth, 5 Va. App. 183, 186 , 360 S.E.2d 893, 895 (1987) (quoting Garland v. Commonwealth, 225 Va. 182, 184 , 300 S.E.2d 783, 784 (1983)).
Failing to prove that Brown had exclusive access to the automobile and failing to account for all those who may have had access to the location where the drugs were found, the Commonwealth cannot rely on an inference from these circumstances that Brown knew of the presence of the drugs. See Best v. Commonwealth, 222 Va. 387, 389 , 282 S.E.2d 16, 17 (1981) (per curiam). Indeed, the legislature has decreed that “occupancy of. . . [a] vehicle ... in which a controlled substance was found shall not create a presumption that such person either knowingly or intentionally possessed such controlled substance.” Code § 18.2-250. The guilt of an accused may not be inferred merely because the circumstances are consistent with guilt. See Fogg v. Commonwealth, 216 Va. 394, 395 , 219 S.E.2d 672, 673 (1975) (per curiam). Guilt is established beyond a reasonable doubt only when the circumstances are “inconsistent with innocence and exclude every *16 reasonable hypothesis of innocence.” Wells v. Commonwealth, 2 Va. App. 549, 551 , 347 S.E.2d 139, 140 (1986). “[Circumstances of suspicion, no matter how grave or strong, are not proof . . . sufficient to support a verdict of guilty.” Crisman v. Commonwealth, 197 Va. 17, 21 , 87 S.E.2d 796, 799 (1955); see also Stover v. Commonwealth, 222 Va. 618, 624 , 283 S.E.2d 194, 197 (1981).
For these reasons, I would reverse the conviction and dismiss the prosecution.