Burchette v. Com.

• Decision Date: 15 December 1992
• Docket Number: No. 0765-91-2,0765-91-2
• Citation: 15 Va.App. 432,425 S.E.2d 81
• Parties: Larry Dean BURCHETTE v. COMMONWEALTH of Virginia. Record
• Court: Virginia Court of Appeals

Page 81

425 S.E.2d 81

15 Va.App. 432

Larry Dean BURCHETTE v. COMMONWEALTH of Virginia.

Record No. 0765-91-2.

Court of Appeals of Virginia.

Dec. 15, 1992.

John W. Luxton, Anthony G. Spencer, Richmond (Morchower, Luxton & Whaley, on briefs), for appellant.

Margaret Ann B. Walker, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellee.

Present: BENTON, COLEMAN and FITZPATRICK, JJ.

COLEMAN, Judge.

Larry Dean Burchette was convicted in a bench trial of violating Code § 18.2-248 by possessing marijuana with the intent to distribute it. The trial judge sentenced Burchette to twenty years imprisonment, all of which was suspended on condition that he serve six months in jail and thereafter be on supervised probation. Burchette contends that the evidence was insufficient to prove that he possessed the marijuana. We agree and reverse his conviction.

When the Commonwealth is required to prove beyond a reasonable doubt that an accused possessed illicit drugs by establishing 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) (citation omitted). Proof of constructive possession necessarily rests on circumstantial evidence; thus, " 'all necessary circumstances proved must be consistent with guilt and inconsistent with innocence and exclude every reasonable hypothesis of innocence.' " Garland v. Commonwealth, 225 Va. 182, 184, 300 S.E.2d 783, 784 (1983) (quoting Carter v. Commonwealth, 223 Va. 528, 532, 290 S.E.2d 865, 867 (1982)).

Viewing the evidence in the light most favorable to the Commonwealth and according it all reasonable inferences fairly deducible therefrom, as we must on appeal, see Garland, 225 Va. at 184, 300 S.E.2d at 784, we find that the evidence was insufficient, as a matter of law, to prove that Burchette possessed or knowingly exercised dominion and control over the marijuana that was found in his parked vehicle.

Larry Dean Burchette left his residence in Richmond mid-afternoon and drove away in one of his two vehicles that were parked in front of his home. The other vehicle remained parked and locked at Burchette's residence. Detective Thomas Lloyd, who was investigating Burchette for suspected drug activity, radioed for assistance. Lloyd and officers in three other police vehicles stopped Burchette after he had driven two miles from his home and asked Burchette if they might search his automobile. Burchette consented. The officers found no contraband in the vehicle. When they asked Burchette for permission to search the vehicle parked at his home, he responded that they did not have probable cause to do so.

The officers released Burchette and returned to Burchette's residence, where Lloyd looked through the passenger's window of Burchette's other automobile and saw plastic bags containing a green plant-like material located between the passenger's and driver's seats. Lloyd determined that the doors and trunk of the automobile were locked.

While other officers watched the automobile, Detective Lloyd obtained a search warrant. In the search, the officers found ten sandwich bags containing marijuana between the driver's seat and the console. The officers also found in the glove compartment a holstered .9 mm loaded handgun and a wallet containing Burchette's operator's license and papers with his name on them. A mobile cellular telephone was on the console. A Richmond telephone company cellular phone bill bearing Burchette's name was in the vehicle. A marijuana cigarette was found under the rear seat. From the automobile trunk the officers seized fourteen bags of marijuana, a hand-held scale, scissors, and empty baggies similar to the ones in which the other marijuana was found.

Ownership or occupancy of a vehicle or of premises where illicit drugs are found is a circumstance that may be considered together with other evidence tending to prove that the owner or occupant exercised dominion and control over items in the vehicle or on the premises in order to prove that the owner or occupant constructively possessed the contraband; however, ownership or occupancy alone is insufficient to prove knowing possession of drugs located on the premises or in a vehicle. Code § 18.2-250; Behrens v. Commonwealth, 3 Va.App. 131, 135, 348 S.E.2d 430, 432 (1986). Furthermore, proof that a person is in close proximity to contraband is a relevant fact that, depending on the circumstances, may tend to show that, as an owner or occupant of property or of a vehicle, the person necessarily knows of the presence, nature and character of a substance that is found there. See Gillis v. Commonwealth, 215 Va. 298, 301-02, 208 S.E.2d 768, 770-71 (1974). However, in order for ownership or occupancy of property or of a vehicle to be sufficient to support the inference that the owner or occupant also possessed contraband that was located on the property or in the vehicle, the owner or occupant must be shown to have exercised dominion and control over the premises and to have known of the presence, nature, and character of the contraband at the time of such ownership or occupancy. Id.

Evidence that Burchette owned the parked vehicle from which the drugs were seized and that he walked by it in going from his residence to another vehicle is insufficient to prove that he knew the illegal drugs were in the vehicle. The Commonwealth presented no evidence from which one reasonably could infer that Burchette occupied the vehicle or had exercised dominion over it while the marijuana was present in it. The evidence failed to show either when Burchette may have used or occupied the vehicle or when or for how long the drugs or paraphernalia had been in it. The evidence failed to show that Burchette was the exclusive or primary operator of the vehicle, or that he possessed a set of keys to the vehicle, or when or by whom the vehicle had been most recently operated or occupied. The circumstances were not such that one reasonably could infer, to the exclusion of other reasonable hypotheses, that Burchette, as the owner of the vehicle, knew of the presence, nature and character of the contraband that was found in it.

The Commonwealth argues, however, that in addition to ownership, other facts proved that Burchette recently had occupied the vehicle at a time when one reasonably could conclude that the marijuana was present. The Commonwealth also contends that certain items found in the vehicle that were tied to Burchette were so closely related to the drug culture that the clear inference to be drawn is that, because those items belonged to Burchette, the drugs also belonged to him. The Commonwealth points to the facts that the vehicle was locked, which, it says, tends to show that access was limited to the owner Burchette; that the marijuana was in ten packets in plain view between the driver's and passenger's seats, which tends to show that a recent occupant of the vehicle would have knowledge of the presence, nature, and character of the contraband; that a cellular telephone and handgun belonging to Burchette were in the vehicle, which tends to show Burchette's recent occupancy of the vehicle and show that he owned items frequently used by drug dealers; and that Burchette's wallet containing his driver's license and a recent receipt for a gun purchase and cellular phone bill in his name in the vehicle tend to show that Burchette had been a recent occupant of the vehicle. In addition to these items showing that Burchette had been a...