Robert Lee Boley v Commonwealth

COURT OF APPEALS OF VIRGINIA
Present: 	Chief Judge Moon, Judges Coleman and Bray
Argued at Norfolk, Virginia
ROBERT LEE BOLEY MEMORANDUM OPINION* BY
v. 	Record No. 1943-95-1 	JUDGE RICHARD S. BRAY
JULY 23, 1996
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
William F. Rutherford, Judge
Michael D. Eberhardt for appellant.
John K. Byrum, Jr., Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.
Robert Lee Boley (defendant) was convicted in a bench trial
for possessing (1) cocaine with intent to distribute, (2)
marijuana with intent to distribute, (3) a firearm, and (4) a
firearm by a convicted felon. 	On appeal, defendant contends that
the evidence was insufficient to support the convictions. 	We
agree and reverse each.
The parties are fully conversant with the record, and we
recite only those facts necessary to a disposition of this
appeal.
In accordance with well established principles, we assess
the sufficiency of the evidence viewing the record in the light
most favorable to the Commonwealth, granting to it all reasonable
inferences fairly deducible therefrom. 	Martin v. Commonwealth, 4
*Pursuant to Code § 17-116.010 this opinion is not
designated for publication.

- 2 -
Va. App. 438, 443, 358 S.E.2d 415, 418 (1987). 	The judgment of a
trial court, sitting without a jury, is entitled to the same
weight as a jury verdict and will be disturbed only if plainly
wrong or without evidence to support it. 	Id.
The record discloses that on November 18, 1994, Norfolk
police found defendant, undressed and showering, in the hall
bathroom of an apartment being searched pursuant to a warrant.1
Three additional persons, including defendant's brother, were in
various rooms of the apartment. 	The search revealed two
revolvers, a semiautomatic pistol, a plastic bag containing
marijuana, several boxes of ammunition, approximately $760 in
cash, and a plastic bag containing 73 empty plastic bags located
in bedrooms and closets. 	Additionally, on or near a "speaker"
resting on the living room floor, police found cocaine, a digital
pager, and approximately 140 "color-coded" plastic bags. 	On the
floor beside the speaker, police discovered a "vinyl case" for
electronic scales, $90 in cash, two cellular telephones and
batteries, a key ring with several keys (one of which unlocked
the apartment door), and a shoe containing thirteen individual
plastic bags of marijuana. 	A pager and "some jewelry" were also
found "on a box in the hallway."
Defendant was advised of his Miranda rights, and admitted
ownership of a "cellular phone, money, keys, and some
jewelry . . . laying on the floor next to the speaker in the
1The validity of this search warrant is not at issue.

- 3 -
front room." 	These articles had been found to the "left of the
speaker," a "foot or less" from the cocaine and "six or seven
feet" from the closeted guns.
Tameka Ellis, the lessee of the apartment, was not present
during the search. 	Various papers, including identification
documents, and personal belongings located in a bedroom,
suggested that defendant's brother resided in the apartment. 	A
Commonwealth witness had observed defendant in the apartment on
two separate occasions over a period of six months.
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)). 	"Suspicious circumstances, including
proximity to a controlled drug, are insufficient to support a
conviction." 	Behrens v. Commonwealth, 3 Va. App. 131, 135, 348
S.E.2d 430, 432 (1986). 	However, while "mere proximity to the
drugs is insufficient to establish possession, and occupancy of
the [premises] does not give rise to a presumption of possession,
Code § 18.2-250, both are factors which may be considered in
determining whether a defendant possessed drugs." 	Josephs v.
Commonwealth, 10 Va. App. 87, 100, 390 S.E.2d 491, 498 (1990) (en
banc). 	These principles of constructive possession are also

- 4 -
applicable in prosecutions for offenses related to firearm
possession. 	Blake v. Commonwealth, 15 Va. App. 706, 708-09, 427
S.E.2d 219, 221 (1993).
When the Commonwealth relies wholly on circumstantial
evidence to prove constructive possession, "'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).
Here, defendant was found showering in a bath accessed by a
hallway in the apartment, and the evidence established only that
he entered the living room and bathroom. 	No drugs or firearms
were found on or near his person, and he engaged in no conduct
suggestive of an awareness that contraband was present on the
premises. 	No evidence proved that he had an ownership or
possessory interest in the apartment. 	Thus, save defendant's
presence, the proximity of his property to contraband, and a key
to the apartment on his key ring, nothing in the record related
him to the offenses. 	While highly suspicious, these
circumstances are insufficient to prove, to the exclusion of
every reasonable hypothesis of innocence, that the drugs and
weapons were subject to defendant's dominion and control.
Accordingly, we reverse the convictions.
Reversed and dismissed.