Glenn v. Com.

• Decision Date: 03 April 1990
• Docket Number: No. 0671-88-2,0671-88-2
• Citation: 10 Va.App. 150,390 S.E.2d 505
• Parties: Ronald Nathaniel GLENN v. COMMONWEALTH of Virginia. Record
• Court: Virginia Court of Appeals

Page 505

390 S.E.2d 505

10 Va.App. 150

Ronald Nathaniel GLENN v. COMMONWEALTH of Virginia.

Record No. 0671-88-2.

Court of Appeals of Virginia.

April 3, 1990.

Gerald T. Zerkin (Karen L. Ely-Pierce, Gerald T. Zerkin & Associates, Richmond, on brief), for appellant.

Thomas C. Daniel, Asst. Atty. Gen. (Mary Sue Terry, Richmond, on brief), for appellee.

Panel: BENTON, COLE and DUFF, JJ.

DUFF, Judge.

Ronald Nathaniel Glenn appeals his convictions of possession, with intent to distribute, of marijuana in excess of one-half ounce but less than five pounds, and possession of cocaine. Glenn was sentenced to ten years on the marijuana charge and twelve months and a $500 fine on the cocaine charge. He presents the following issues on appeal: (1) whether the evidence was sufficient to establish that he possessed, with intent to distribute, more than one-half ounce of marijuana; (2) whether the evidence was sufficient to establish that he possessed cocaine; and (3) whether the court erred in denying his motion to suppress the marijuana found in his automobile. We find no error and affirm the convictions.

I.

On the afternoon of June 5, 1987, police approached the dwelling located at 1305 College Street, South Boston, Virginia. A search warrant authorized the police to search the dwelling, which belonged to Edith Jones, and a 1974 Volkswagen belonging to the defendant parked in the driveway. The affidavit for the search warrant described both the single-family dwelling and the 1974 Volkswagen parked in the driveway, although the warrant addressed probable cause only in connection with the search of the dwelling. Earlier that afternoon, several people had been observed, at various times, crossing the street and visiting the side door of the house. The door would open and something would pass between someone inside the house and the person outside.

When the police approached the house they unsuccessfully attempted to knock the door open. They heard the flushing of the commode inside. After a few minutes the door was opened and Ronald Glenn and Edith Jones were found inside.

The police conducted a search of the premises and discovered marijuana, less than one-half ounce, along with drug paraphernalia. Among other items found in the house was a small vial and part of a plastic straw containing cocaine residue, a saucer, a spoon, razor blades, soda, a torch, and a pipe. Five small paper packets containing 0.229 ounces of marijuana were found in the den on a table. Another bag contained 0.245 ounces of marijuana. In the dining room was a set of scales. Taken from the defendant was a bag containing $1,263 in cash.

While the police were counting the money at the house, Glenn, in response to a question addressed to Edith Jones, stated that "the stuff was his and it was his operation more or less." The police also searched the car and found four bags of marijuana, weighing a total of approximately 3.9 pounds, inside a duffle bag on the floorboard.

After being taken to the police station the defendant gave a statement in which he stated, "I am the only one that had anything to do with the possession and selling of the drugs. Edith Jones ... didn't have anything to do with buying or selling of drugs, she didn't know anything about this." At the time of this statement Glenn was not aware that the police had found the cocaine residue in the house or the marijuana in the car.

At trial, Glenn testified that he stayed at 1305 College Street four nights a week and that he kept personal possessions there. Many of Glenn's personal belongings were found in one of the bedrooms of the house.

II.

Appellant first contends that the evidence was insufficient to establish that he possessed the marijuana found in the car in the driveway. Therefore, he argues, since the amount found in the house was only .474 ounces, the evidence was insufficient to establish that he possessed more than one-half ounce of marijuana. We find, however, that there is ample evidence in the record linking the defendant to the 1974 Volkswagen and the drugs found inside.

When considering the sufficiency of the evidence on appeal of a criminal conviction, we view the evidence in the light most favorable to the Commonwealth and accord to it all reasonable inferences fairly deducible therefrom. The jury's verdict will not be disturbed on appeal unless it is plainly wrong or without evidence to support it. Traverso v. Commonwealth, 6 Va.App. 172, 176, 366 S.E.2d 719, 721 (1988).

On the date of the arrest, June 5, 1987, Virginia Department of Motor Vehicles' records established that the license on the Volkswagen parked at 1305 College Street had been issued to the defendant on April 16, 1987. At the time of the suppression hearing, February 24, 1988, the car was still registered in the defendant's name. The constant registration of the car in the defendant's name, combined with the fact that both the car and the defendant were at the residence on the day of his arrest, is sufficient evidence to attribute ownership of the car to the defendant.

The Commonwealth is obliged to show further, however, that the defendant not only owned the car, but was aware of its contents. As noted in Behrens v. Commonwealth, 3 Va.App. 131, 348 S.E.2d 430 (1986), "[s]uspicious circumstances, including proximity to a controlled drug, are insufficient to support a conviction" for their possession. Id. at 135, 348 S.E.2d at 432. 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." Hairston v. Commonwealth, 5 Va.App. 183, 186, 360 S.E.2d 893, 895 (1987). Knowledge of the presence and character of the controlled substance, however, may be shown by evidence of the acts, statements or conduct of the accused. Eckhart v. Commonwealth, 222 Va. 447, 450, 281 S.E.2d 853, 855 (1981).

In the instant case we find that the circumstances attendant to the arrest were sufficient to allow the jury to conclude that Glenn not only owned the car, but was fully aware of its contents. The defendants statements concerning the "possession and selling of drugs," combined with the circumstances under which he was arrested, fully support this conclusion.

III.

The defendant further contends that, regardless of the amount in his possession there is insufficient evidence to support the conclusion that he had an intent to distribute. We find this contention to be without merit.

The quantity of a controlled substance is a factor which may indicate the purpose for which it is possessed. Possession of a small quantity creates an inference that the drug is for personal use. On the other hand, possession of a quantity greater than that ordinarily possessed for one's personal use may be sufficient to establish an intent to distribute. Monroe v. Commonwealth, 4 Va.App. 154, 156, 355 S.E.2d 336, 337 (1987). In the case at bar the defendant was in possession of over four pounds of marijuana, an amount the jury could reasonably find not to be consistent with possession for personal use.

The jury need not have relied solely upon the quantity of the drug possessed to support a finding of an intent to distribute. During a ninety-minute period earlier that afternoon, several people were seen going to the door and receiving something from an occupant of the house. Glenn had $1,263 cash on his person when arrested and searched. A set of scales was found in the dining room. These facts, when combined with the statements made by Glenn that he was "the only one that had anything to do with the ... selling of the drugs," support the jury's finding that the defendant possessed the drugs with an intent to distribute.

IV.

The appellant next contends that he was unaware, at the time that he made...