Ferebee v. Commonwealth
| Decision Date | 04 December 2012 |
| Docket Number | Record No. 0189-12-1 |
| Parties | JAMAL FEREBEE v. COMMONWEALTH OF VIRGINIA |
| Court | Virginia Court of Appeals |
Present: Judges Frank, Alston and Senior Judge Bumgardner
Argued at Chesapeake, Virginia
DECEMBER 4, 2012
FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
Gregory K. Matthews (Office of the Public Defender, on brief), for appellant.
David M. Uberman, Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.
Jamal Ferebee, appellant, was convicted in a bench trial, of possession with the intent to distribute marijuana, in violation of Code § 18.2-248.1. On appeal, he challenges the sufficiency of the evidence.1 For the reasons stated, we affirm the judgment of the trial court.
Based on a confidential informant's tip that the driver of a particular vehicle was going to be in possession of a large amount of marijuana, police set up surveillance at the location mentioned by the confidential informant. Shortly thereafter, a vehicle matching the description appeared. A man matching the description of the suspect exited the vehicle from the driver's seat, entered the gas station, and returned to the same vehicle within minutes.
Appellant, who was not the subject of the confidential informant's tip, remained in the front passenger seat of the vehicle. As the driver returned, the police approached the vehicle. They observed no furtive gestures by appellant.
Detective Kevin Johnakin was among the officers who participated in the seizure of the Volkswagen. When he approached the car, he immediately observed two large bags of marijuana clearly visible on the transmission hump. The drugs were within both the driver's and appellant's reach. Both appellant and the driver, later identified as Dennis Whigham, were arrested at the scene.
Whigham, a convicted felon and a long-time friend of appellant, testified on behalf of appellant. Whigham explained that on January 18, 2011, he was driving to the store when he picked up appellant. Whigham told the court that the marijuana in the car belonged to him and that appellant was unaware of its presence. On cross-examination, the following exchange took place:
The court, in finding appellant guilty, found there was a significant amount of marijuana in plain sight and concluded, "I don't see how in the world anyone could have gotten in the car and not seen these two bags sitting where they were sitting." The trial court also found that the appellant could have reached down and picked up the drugs.
This appeal follows.
Appellant contends the evidence is insufficient to prove that he possessed the marijuana.2
When addressing the sufficiency of the evidence, we "'presume the judgment of the trial court to be correct' and reverse only if the trial court's decision is 'plainly wrong or without evidence to support it.'" Kelly v. Commonwealth, 41 Va. App. 250, 257, 584 S.E.2d 444, 447 (2003) (en banc) (quoting Davis v. Commonwealth, 39 Va. App. 96, 99, 570 S.E.2d 875, 876-77 (2002)). In practical terms, a reviewing court does not "'ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.'" Stevens v. Commonwealth, 46 Va. App. 234, 249, 616 S.E.2d 754, 761 (2005) (en banc) (quoting Jackson v. Virginia, 443 U.S. 307, 318-19 (1979)) (emphasis in original), aff'd, 272 Va. 481, 634 S.E.2d 305 (2006). We ask only whether "'any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" Id. (quoting Kelly, 41 Va. App. at 257, 584 S.E.2d at 447). "'This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.'" Kelly, 41 Va. App. at 257-58, 584 S.E.2d at 447 (quoting Jackson, 443 U.S. at 319). Thus, we do not "substitute our judgment for that of the trier of fact" even if our opinion were to differ. Wactor v. Commonwealth, 38 Va. App. 375, 380, 564 S.E.2d 160, 162 (2002).
"To establish 'possession' in the legal sense, not only must the Commonwealth show actual or constructive possession of the drug by the defendant, it must also establish that the defendantintentionally and consciously possessed the drug with knowledge of its nature and character." Williams v. Commonwealth, 14 Va. App. 666, 669, 418 S.E.2d 346, 348 (1992) (citation omitted). Burnette v. Commonwealth, 194 Va. 785, 792, 75 S.E.2d 482, 487 (1953).
To support a conviction based on 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 character of the substance and that it was subject to his dominion and control." Glasco v. Commonwealth, 26 Va. App. 763, 774, 497 S.E.2d 150, 155 (1998) (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." Burchette v. Commonwealth, 15 Va. App. 432, 434, 425 S.E.2d 81, 83 (1992) (citations omitted). However, "[t]he Commonwealth need only exclude reasonable hypotheses of innocence that flow from the evidence, not those that spring from the imagination of the defendant." Hamilton v. Commonwealth, 16 Va. App. 751, 755, 433 S.E.2d 27, 29 (1993).
Whether a particular hypothesis is reasonable is a question of fact binding on appeal "'so long as the inferences are reasonable and justified.'" Cantrell v. Commonwealth, 7 Va. App. 269, 290, 373 S.E.2d 328, 339 (1988) (quoting Higginbotham v. Commonwealth, 216 Va. 349, 353, 218 S.E.2d 534, 537 (1975)).
Although mere proximity to drugs is insufficient to establish possession, it is a circumstance that may be probative in determining whether an accused possessed such drugs. Lane v. Commonwealth, 223 Va. 713, 716, 292 S.E.2d 358, 360 (1982). "Ownership or occupancy of the vehicle in which the drugs are found is likewise a circumstance probative of possession." Glasco,26 Va. App. at 774, 497 S.E.2d at 155 (citations omitted). Thus, in resolving this issue, we must consider "the totality of the circumstances disclosed by the evidence." Womack v. Commonwealth, 220 Va. 5, 8, 255 S.E.2d 351, 353 (1979).
Appellant cites Coward v. Commonwealth, 48 Va. App. 653, 633 S.E.2d 752 (2006), to support his position. However, the facts in Coward distinguish it from the instant case. In Coward, with the aid of a flashlight to illuminate the interior of the vehicle, the officer noticed a "hard white substance inside a . . . clear plastic baggie" sitting on the console between the driver's and passenger's seats. Id. at 656, 633 S.E.2d at 753. Coward was in the passenger seat. In reversing Coward's conviction, we held that while Coward's occupancy of the vehicle and his proximity to the drugs were factors to be considered, those two factors alone were not sufficient to convict. Id. at 658, 633 S.E.2d at 754. We emphasized there was no evidence that the baggie would have been visible in the darkness of the passenger compartment without additional lighting. Id. at 660, 633 S.E.2d at 755. However, in the instant case, the fact that the officer immediately saw the drugs without any mechanical assistance distinguishes this case from Coward.
Likewise, in Jones v. Commonwealth, 17 Va. App. 572, 439 S.E.2d 863 (1994), the police observed a small tray containing, among other objects, five small rocks of crack cocaine between the passenger's and driver's seats. The officers described the rocks as two to three times the size of the "brass head of a pen." Id. at 573, 439 S.E.2d at 863. We reversed Jones' conviction, finding no evidence proved that Jones saw the small pieces of cocaine or that he recognized the rocks as cocaine. Id. at 574, 439 S.E.2d at 864. Here, however, the size of the two bags compels a conclusion that appellant saw the marijuana. Also, because the driver "probably" smoked marijuana in front of appellant, it is reasonable to conclude that appellant knew the nature and character of the marijuana.
Smallwood v. Commonwealth, 278 Va. 625, 688 S.E.2d 154 (2009), is instructive. Smallwood was the driver of a vehicle in which police found a weapon, in plain view, in a console located between the driver's seat and the passenger's seat. Id. at 627, 688 S.E.2d at 155. Smallwood acknowledged knowing the gun was there. Id. at 628, 688 S.E.2d at 155. The Supreme Court of Virginia found his statement established he was aware of the presence and character of the firearm, but also concluded, "and even without his admission, it strains credibility that someone entering and exiting a small vehicle would fail to notice a 'small .38 silver revolver' that was in 'plain view.'" Id. at 631, 688 S.E.2d at 157. Quoting Bolden v. Commonwealth, 275 Va. 144, 149, 654 S.E.2d 584, 586 (2008), the Court opined that the contraband was '"open and obvious to someone looking in the vehicle, and it was located in immediate proximity to where [the defendant] had been sitting."' Id. at 632, 688 S.E.2d at 157. The Smallwood analysis supports a finding that appellant intentionally and consciously...
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