Maxwell v. Com.

• Citation: 275 Va. 437,657 S.E.2d 499
• Decision Date: 29 February 2008
• Docket Number: Record No. 070831.
• Court: Supreme Court of Virginia
• Parties: Jayson Franklin MAXWELL v. COMMONWEALTH of Virginia.

657 S.E.2d 499

275 Va. 437

Jayson Franklin MAXWELL v. COMMONWEALTH of Virginia.

Record No. 070831.

Supreme Court of Virginia.

February 29, 2008.

A. Pierre Jackson, Farmville, for appellant.

Benjamin H. Katz, Assistant Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee.

Present: HASSELL, C.J., KOONTZ, KINSER, LEMONS, AGEE, and GOODWYN, JJ., and CARRICO, S.J.

OPINION BY Senior Justice HARRY L. CARRICO.

In a jury trial, the defendant, Jayson Franklin Maxwell, was convicted of possession of cocaine with intent to distribute, third or subsequent offense, in violation of Code § 18.2-248, and possession of marijuana, in violation of Code § 18.2-250.1. The jury fixed the defendant's punishment at seven years in the penitentiary on the cocaine charge and thirty days in jail on the marijuana charge. The trial court imposed the sentences fixed by the jury and also imposed an additional one-year term suspended subject to post-release supervision pursuant to Code § 19.2-295.2.

In an unpublished opinion, a three-judge panel of the Court of Appeals, with one judge dissenting, reversed the defendant's convictions. Maxwell v. Commonwealth, Record No. 2648-05-2, 2006 WL 3358366 (Nov. 21, 2006). Upon rehearing en banc, a majority of the court vacated the panel's mandate and, by order, affirmed the trial court's judgment for the reasons stated in the panel's dissenting opinion. Maxwell v. Commonwealth, Record No. 2648-05-2, 2007 WL 4980816 (Apr. 3, 2007). We awarded the defendant this appeal.

FACTUAL BACKGROUND

Approximately 11:00 a.m. on March 25, 2003, Officer Bill Hogan of the "Farmville Police Department, wearing plain clothes but displaying a badge, a sidearm, and handcuffs, drove in his unmarked vehicle to the Farmville Shopping Center, where, he had been told, he would find the defendant. Upon arrival at the shopping center, he found the defendant standing in front of "The Gym." Officer Hogan told the defendant he wanted to talk to him about a check, and the two conversed briefly about that subject.

The defendant had his hands "down the front of his pants, not in his pockets, but actually down the front of his pants." Concerned about "officer safety," Officer Hogan asked the defendant to remove his hands from his pants. When the defendant refused to respond to the request, Officer Hogan told the defendant that they "needed to go to the police department and talk about" the check matter and that he, Hogan, "needed to check [the defendant] to see if he had anything on him, to pat him down." The defendant backed up and said several times, "I ain't got nothing on me," whereupon, "[h]e ran."

Officer Hogan pursued the defendant on foot for a short distance and then returned to his vehicle and drove down an alley behind the shopping center that bordered a lumberyard. He observed the defendant walk out from behind several stacks of plywood located between the alley and a chain-link fence that enclosed the lumberyard. Officer Hogan took the defendant into custody, put handcuffs on him, and placed him in the vehicle of State Trooper Sean Givens, who had responded to a call to report to the scene. The officers found $460.00 in cash on the defendant's person, but no smoking device.

Officer Hogan conducted a search of the area. When he found nothing, he called for a "drug dog," and Robert Leon Goldman, a "K-9 officer," reported to the scene with his dog, Lily, about 11:15 a.m. Lily "alerted on" a lumber pallet and Goldman "reached in and got a plastic bag" that contained "eight individually wrapped off-white rocklike substances." Subsequent analysis determined that the rocklike substances in the plastic bag were crack cocaine.

Trooper Givens conversed with the defendant while the search was underway. At first, the defendant was "talkative and cooperative" but became "less talkative and distant" after the plastic bag was found. The trooper then transported the defendant to the police department for processing.

Coy R. Sams, an employee of the lumberyard, testified that he unloaded fourteen units of plywood from a tractor-trailer about 8:30 a.m. on March 25, 2003, and placed the stacks of plywood alongside the alley outside the fence that enclosed the lumberyard. Sams also said he spent the rest of the morning "going in and out of the warehouse and back and forth to the yard to retrieve products and materials for customers" and saw no one near the stacks of plywood. He admitted, however, that he was not "outside guarding the plywood the entire morning,"

Another lumberyard employee, Mac Robinson, Jr., testified that he and three to six other employees were around the warehouse and yard on March 25, 2003, filling orders for customers and that he saw no one near the plywood stacks all morning, although he was not near the stacks the entire time. Later in the day, Robinson used a forklift to move the stacks of plywood inside the fence where materials were "stored and secured." He testified that after moving "the top" of one of the units, he returned "to pick the bottom unit up" and saw "two bags of stuff' on top of the plywood. He reported his find to Coy Sams and immediately went "back out and sat on the forklift . . . until authorities came."

Officer Hogan arrived on the scene at 1:45 p.m. and took possession of the two bags. Subsequent analysis determined that one bag contained twelve individually wrapped bags of crack cocaine and the other bag contained marijuana.

A single latent fingerprint was found on the bag containing crack cocaine but subsequent analysis determined that it did not match the defendant's fingerprints. A fingerprint expert testifying for the Commonwealth said "circumstances have to be just right for af print to be left on a particular surface" and "not everything that is touched can . . . develop a print." Fingerprints are "very fragile in nature," he stated, and may be destroyed "if you were to just wipe across [it] or if it comes into contact with your clothing or another item." He also opined that "because there is no print of someone's on [an object] doesn't mean that person didn't touch it."

At the conclusion of the Commonwealth's evidence and at the conclusion of all the evidence, the defendant moved to strike the evidence on the ground it was insufficient to show he possessed the drugs. The trial court denied both motions.

The defendant argues on appeal that the evidence was insufficient as a matter of law to show he possessed the drugs in question. The defendant contends that the Commonwealth's case is based on circumstantial evidence, that the chain of circumstances is not unbroken, and that the evidence therefore is equally susceptible to an interpretation consistent with his innocence.

The Commonwealth responds that it was not required to prove actual possession of the drugs, but that proof of the defendant's constructive possession was sufficient. The Commonwealth maintains that from the reasonable inferences which could be drawn from the facts, the jury could conclude that "the defendant was concealing the drugs at the time of his initial encounter with Officer Hogan, that [the defendant] fled from the officer to prevent the detection of the drugs, and that the defendant ran to the stacks of plywood in an effort to discard the contraband rather than risk its being found in his possession."

STANDARD OF REVIEW

"We have held in many cases that, upon appellate review, the evidence and all reasonable inferences flowing therefrom must be viewed in the light most favorable to the prevailing party in the trial court." Commonwealth v. Hudson, 265 Va. 505, 514, 578 S.E.2d 781, 786 (2003). "The judgment of the trial court is presumed to be correct and will be reversed only upon a showing that it is plainly wrong or without evidence to support it." Viney v. Commonwealth, 269 Va. 296, 299, 609 S.E.2d 26, 28 (2005) (internal quotation marks and citation omitted). The issue upon appellate review is "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

"To support a conviction based upon constructive possession [of drugs], 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." Drew v. Commonwealth, 230 Va. 471, 473, 338 S.E.2d 844, 845 (1986) (internal quotation marks and citation omitted). When, as here, proof of constructive possession rests upon circumstantial evidence, "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) (internal quotation marks and citation omitted). And "[w]hile a conviction may properly be based upon circumstantial evidence, . . . [t]here must be an unbroken chain of circumstances proving the guilt of the accused to the exclusion of any other rational hypothesis and to a moral certainty." Gordon v. Commonwealth, 212 Va. 298, 300, 183 S.E.2d 735, 737 (1971) (internal quotation marks and citation omitted).

ANALYSIS

Guided by the...