Wynn v. Com., 1542-85

• Decision Date: 17 November 1987
• Docket Number: No. 1542-85,1542-85
• Citation: 362 S.E.2d 193,5 Va.App. 283
• Parties: Lorenzo Kennard WYNN v. COMMONWEALTH of Virginia. Record
• Court: Virginia Court of Appeals

Page 193

362 S.E.2d 193

5 Va.App. 283

Lorenzo Kennard WYNN v. COMMONWEALTH of Virginia.

Record No. 1542-85.

Court of Appeals of Virginia.

Nov. 17, 1987.

C. David Whaley (Elizabeth H. Dashiell, Morchower, Luxton & Whaley, Richmond, on brief), for appellant.

Margaret Poles Spencer, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellee.

Present: BARROW, COLE and DUFF, JJ.

COLE, Judge.

Lorenzo Kennard Wynn was tried by a jury and convicted of possession of marijuana with intent to distribute, possession of cocaine, attempted capital murder of a police officer, and use of a firearm in the commission of an attempted murder. He contends on this appeal (1) that the convictions for possession of cocaine and possession of marijuana with intent to distribute should be reversed because the evidence was insufficient to support the convictions, and (2) that a new trial should be granted on the attempted capital murder and the use of a firearm in the commission of a felony because the trial court erred in not admitting evidence that the defendant had been threatened prior to the shooting, because the trial court did not give requested jury instructions on the lesser included offense of assault, and because the trial court refused to grant an instruction on self-defense. We agree and reverse the convictions for possession of cocaine and possession of marijuana with intent to distribute, and we remand the case for a new trial on the charges of attempted capital murder and the use of a firearm in the commission of the attempted murder.

I. The Drug Charges

On August 12, 1985, Richmond Police detectives began surveillance of Gail Hope's apartment at 1446-E Clarkson Road, Richmond, Virginia. They observed the defendant enter this apartment with Hope at about 11:00 p.m. and at 1:00 a.m. on August 13, 1985, they saw him leave the apartment alone. He drove away in Hope's automobile. The detectives, wearing plain clothes and driving an unmarked police car, followed the defendant to a 7-11 convenience store. The defendant testified that when he left the apartment he knew he was being followed but did not know by whom. Further incidents that developed at the 7-11 store will be recited later.

Later in the night the police, pursuant to a search warrant, searched Hope's apartment. The apartment consisted of a large living room, a hallway with a kitchen on one side and a child's bedroom on the other side, and a master bedroom, furnace room and bathroom in the rear of the apartment. In the master bedroom at the rear of the apartment, the police found 1.21 grams of marijuana in the top drawer of a large chest of drawers, a razor blade with cocaine residue on the top of the dresser, and a clear plastic wrapper containing cocaine residue on the top of a small dresser. They also found 3.27 grams of cocaine in the butter tray of the kitchen refrigerator, a bag containing cocaine residue in a drawer in the kitchen, two pounds of marijuana packaged in six baggies on the floor behind the dresser in the child's bedroom, a clear plastic wrapper with cocaine on it in a living room trash can, and a triple beam scale in the kitchen pantry. All of the drugs were concealed from view in closed drawers, cabinets and a refrigerator butter tray except the razor blade and the plastic bag with cocaine residue found on the dresser top in the bedroom. The police also found "male" clothing on a chair in the master bedroom. The evidence does not indicate what the clothing consisted of, who the clothes belonged to, or if they were the same size as clothes worn by the defendant. The police also found an envelope on a table in the living room. The envelope was addressed to the defendant at 1414-C Clarkson Road. The envelope had a brief handwritten note which read, "Lo don't take the key if you leave I'll be right back, Kenny." When he was arrested, defendant told the police that he lived at 1414-C Clarkson Road, a distance of about two blocks from the Hope apartment. At trial he testified that he was not staying at the Hope apartment, although from time to time he would spend the night there. He testified that he had been dating Hope for three weeks.

Wynn's first contention is that the evidence was insufficient to convict him of possession of cocaine or of possession of marijuana with intent to distribute. He argues that there is no evidence of actual physical possession of any drugs and insufficient evidence to show that he was aware of the presence and character of the drugs and to show that the drugs were subject to his dominion and control.

In reviewing the sufficiency of the evidence on appeal, the evidence must be viewed in the light most favorable to the Commonwealth, and the Commonwealth given all reasonable inferences fairly deducible therefrom. Albert v. Commonwealth, 2 Va.App. 734, 741, 347 S.E.2d 534, 538 (1986) (citing Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975)).

To support a conviction based upon 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."

Drew v. Commonwealth, 230 Va. 471, 473, 338 S.E.2d 844, 845 (1986) (quoting Powers v. Commonwealth, 227 Va. 474, 476, 316 S.E.2d 739, 740 (1984)). "Under Code § 18.2-250, proof that contraband was found in premises owned or occupied by the defendant is insufficient, standing alone, to prove constructive possession." Behrens v. Commonwealth, 3 Va.App. 131, 135, 348 S.E.2d 430, 432 (1986); see also Powers, 227 Va. at 476, 316 S.E.2d at 740. Suspicious circumstances, including mere proximity, are insufficient to support a conviction. Behrens, 3 Va.App. at 135, 348 S.E.2d at 432 (citing Garland v. Commonwealth, 225 Va. 182, 184, 300 S.E.2d 783, 784 (1983); Wright v. Commonwealth, 217 Va. 669, 670, 232 S.E.2d 733, 734 (1977)).

The facts in the case sub judice are very similar to those in Drew v. Commonwealth, 230 Va. 471, 338 S.E.2d 844 (1986). In Drew, a search of a house revealed drugs in several places. The defendant, Drew, was outside the house, two doors away, when the search took place. A van owned by the defendant and a car registered to Cheryl McClarty were parked near the house. The police found McClarty in the master bedroom and found men's clothing as well as women's clothing hanging in the closet. The police found cocaine and drug paraphernalia in several places in the house. Four scales of different designs were found in three different rooms including the living room. Drew, 230 Va. at 472-73, 338 S.E.2d 844. In the living room, the police also found a checkbook, a bank statement, a telephone bill, and a wallet containing vehicle registration cards, a driver's license, and a credit union voucher, all in the defendant's name and showing the house as his address. The court concluded that "[a]t most, the evidence establishes that Drew resided at 3317 Knox Street and that he was near the residence the night the cocaine was seized." Drew, 230 Va. at 474, 338 S.E.2d at 846; see also Garland v. Commonwealth, 225 Va. 182, 300 S.E.2d 783 (1983).

The circumstantial evidence in the instant case is insufficient to prove that the drugs and the paraphernalia found in Ms. Hope's apartment were within the dominion and control of the defendant. The police only observed the defendant enter the apartment once on August 12, 1985, when he remained for a brief period of time and left. Although men's clothing was found in the master bedroom, no evidence established what the clothes consisted of, who the clothing belonged to, or that the clothes were the defendant's size. The envelope found in the apartment indicated that the defendant resided at a different address. The defendant did admit that he had been dating Hope for three weeks and that on occasion, he spent the night at her apartment. This admission, however, together with his visits from time to time over a three week period, creates only a mere suspicion. The evidence fails to establish a linkage or connection between Wynn and the drugs sufficient to prove that Wynn was aware of the presence and character of the drugs and to show that the drugs were subject to his dominion and control.

Upon our review of the evidence, we do not find sufficient credible evidence to support the drug-related convictions. Accordingly, we reverse both convictions.

II. The Attempted Murder Charge

The Commonwealth charged Wynn with attempted capital murder of Detective C.A. Jackson on or about August 13, 1985, and with use of a firearm in the commission of the attempted murder. As a defense to these charges, Wynn contended that he did not intend to shoot anyone the night of the incident. He explained that he shot through the rear door of his car, and Detective Jackson was at the front of his vehicle. He claims that, at most, he was guilty of the lesser included offense of assault in violation of Code § 18.2-57.1. The trial court refused to admit evidence of Wynn's intent and to instruct the jury on assault. Wynn claims these omissions constitute reversible error. Wynn also argues that he acted in self-defense and that the trial court erred in refusing to grant a self-defense instruction.

At trial, Wynn attempted to present evidence of threats made upon his life by Gail Hope's former boyfriend within the three weeks preceding the shooting. He offered this evidence to show why he had the gun in his vehicle, to explain his conduct on the night in question, and to show his state of mind and intent when he was confronted by the police and then attempted to escape from them. The trial court refused to admit this evidence, but the defendant proffered for the record his testimony and that of his mother concerning threats made by William Rice, Hope's former boyfriend.

The...