                                   COURT OF APPEALS OF VIRGINIA


Present: Judges Frank, Humphreys and Petty
Argued at Richmond, Virginia

ANTONIO MASON
                                                              MEMORANDUM OPINION * BY
v.     Record No. 2188-08-1                                    JUDGE WILLIAM G. PETTY
                                                                   MARCH 2, 2010
COMMONWEALTH OF VIRGINIA


                   FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
                               Everett A. Martin, Jr., Judge

                 Jessica M. Bulos, Assistant Appellate Defender (Office of the
                 Appellate Defender, on briefs), for appellant.

                 Susan M. Harris, Assistant Attorney General (William C. Mims,
                 Attorney General, on brief), for appellee.


       On June 25, 2008, Antonio Mason, appellant, was convicted of possession of cocaine

with the intent to distribute in violation of Code § 18.2-248; possession with the intent to

distribute more than one-half ounce, but less than five pounds of marijuana in violation of Code

§ 18.2-248.1; and possession of a firearm after being previously convicted of a violent felony in

violation of Code § 18.2-308.2. Mason argues on appeal that the evidence was insufficient to

prove that he constructively possessed the cocaine. For the following reasons, we agree and

reverse his conviction under Code § 18.2-248.

                                          I. BACKGROUND

       Because the parties are fully conversant with the record in this case and this

memorandum opinion carries no precedential value, we recite only those facts and incidents of

the proceedings as are necessary to the parties’ understanding of the disposition of this appeal.


       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
On appeal, we view those facts and incidents in the “light most favorable” to the prevailing party

below, the Commonwealth, Commonwealth v. Hudson, 265 Va. 505, 514, 578 S.E.2d 781, 786

(2003), and we grant to that party all fair inferences flowing therefrom. Coleman v.

Commonwealth, 52 Va. App. 19, 21, 660 S.E.2d 687, 688 (2008).

       Police investigators obtained search warrants for two residences connected with Antonio

Mason because they suspected that he was selling marijuana and cocaine. 1 One apartment was

located on Newport Avenue, and the other was located on Bellamy Avenue. According to

Investigator R.A. Stocks, Mason appeared to live at the Bellamy Avenue apartment but spent

most of his days at the Newport Avenue apartment. Both residences were leased to individuals

other than Mason.

       When the police executed the search warrant at the Newport Avenue apartment, they saw

Mason and Lakita Bynum standing in a common hallway outside of the apartment. At their feet,

Investigator Stocks saw “some United States Currency and a small quantity of marijuana on the

ground . . . .” Inside the Newport Avenue apartment, the officers found a total of $850, several

bags of marijuana, a digital scale, a plastic bag with five individually wrapped crack cocaine

rocks, a corner of a plastic bag containing cocaine, a $1 bill with cocaine powder residue, a razor

blade, and a clear plastic bag with a large chunk of cocaine. Roberta McFadden—the person to

whom the Newport Avenue apartment was leased—was the only person present inside the

apartment when the search warrant was executed. The officers did not find any physical

evidence that linked Mason to cocaine found within the apartment.

       After another officer told Investigator Stocks that narcotics were in the house, Stocks

arrested both Bynum and Mason. When confronted with the fact that narcotics were in the


       1
         Mason was also charged with possession of marijuana with the intent to distribute. We
declined to grant his petition for appeal on that charge and, therefore, it is not before us.

                                                 -2-
apartment, Mason stated that “he did sell a little bit of marijuana.” Stocks searched Mason and

found nothing illegal on his person.

       In the Bellamy Avenue apartment, the officers found several bags of marijuana and

several firearms, but no cocaine. In addition, the officers found a picture of Kendra Sessoms—

the only lessee of the Bellamy Avenue apartment—and Mason in the master bedroom and two

pieces of mail with Mason’s name on them but mailed to a different address.

       Mason moved to strike the Commonwealth’s evidence because the Commonwealth failed

to prove actual or constructive possession of the cocaine found in the Newport Avenue

apartment. The court overruled the motion and convicted Mason of possession of cocaine with

the intent to distribute. This appeal followed.

                                           II. ANALYSIS

       Mason argues that the evidence was insufficient to prove that he constructively possessed

cocaine and, therefore, the trial court erred in convicting him of possession with the intent to

distribute cocaine. “It is elementary that the burden is on the Commonwealth to prove every

essential element of the offense beyond a reasonable doubt. This fundamental precept has been

the bedrock of Virginia’s criminal jurisprudence since the inception of this Commonwealth.”

Tart v. Commonwealth, 52 Va. App. 272, 276, 663 S.E.2d 113, 115 (2008) (internal quotation

marks and citations omitted). “When considering the sufficiency of the evidence presented

below, 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) (internal quotation marks and citations

omitted); see Code § 8.01-680. Nonetheless, we hold that the evidence was insufficient to prove

that Mason actually or constructively possessed cocaine.




                                                  -3-
       The Commonwealth was required to prove beyond a reasonable doubt that Mason

“‘intentionally and consciously possessed’ the [cocaine], either actually or constructively, with

knowledge of its nature and character, together with the intent to distribute it.” Wilkins v.

Commonwealth, 18 Va. App. 293, 298, 443 S.E.2d 440, 444 (1994) (internal citations and

quotation marks omitted). Even viewing the facts in the light most favorable to the

Commonwealth, clearly Mason did not actually possess cocaine. Thus, to secure a conviction

under Code § 18.2-248, the Commonwealth must prove that Mason constructively possessed

cocaine.

       “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)); see also Haskins v. Commonwealth, 44 Va. App. 1, 6, 602 S.E.2d

402, 404 (2004). ‘“An accused’s mere proximity to an illicit drug, however, is not sufficient to

prove possession.’” Jordan v. Commonwealth, 273 Va. 639, 645, 643 S.E.2d 166, 170 (2007)

(quoting Walton v. Commonwealth, 255 Va. 422, 426, 497 S.E.2d 869, 872 (1998)); accord

Wilson v. Commonwealth, 272 Va. 19, 27, 630 S.E.2d 326, 330 (2006); Drew, 230 Va. at 473,

338 S.E.2d at 845. “Nor does an accused’s ownership or occupancy of the premises or vehicle

where an illegal drug is found create a presumption of possession.” Jordan, 273 Va. at 645-46,

643 S.E.2d at 170.

       In Drew, our Supreme Court held that, as a matter of law, the evidence was insufficient to

establish that Drew constructively possessed cocaine. Drew, 230 Va. at 474, 338 S.E.2d at 846.

In that case, the police observed twenty-two people enter and exit a dwelling unit. Id. at 472,


                                                  -4-
338 S.E.2d at 845. When the police returned with a search warrant, Drew was standing in the

street near the dwelling but he was not in the house. Id. While there were documents that

established that Drew claimed the dwelling as his residence, the Court stated that “such evidence,

though relevant, raises no presumption that he knowingly or intentionally possessed a controlled

substance found there.” Id. Further, the Court stated that there was “no evidence of statements

or conduct which tend to show that Drew was aware of the presence of cocaine in the dwelling.”

Id. at 473, 338 S.E.2d at 845.

       We believe that the analysis in Drew directly controls this case. Here, Mason was

outside the Newport Avenue apartment in the common hallway when the officers executed the

search warrant. There was no evidence establishing a proprietary interest in the apartment nor

was there any evidence linking Mason to the apartment such as items of clothing, mail, or other

documents with his name. The officers testified that they observed Mason enter the apartment

several times, but never stated when those visits occurred. Further, the officers never stated

when Mason was last seen entering the apartment. There was no evidence that Mason had been

inside the apartment the day of his arrest. Nor was there any evidence that he knew cocaine was

inside. Moreover, even though the officers testified that they conducted three controlled buys of

marijuana, there was no testimony that Mason was present during those purchases or that cocaine

was present during those times.

       The bag of marijuana and cash found by Mason’s feet, his statement that he sold some

marijuana, and the quantity of marijuana found at the Bellamy Avenue apartment may have been

sufficient to prove that he constructively possessed that marijuana with the intent to sell it. But

none of those three pieces of evidence connects Mason to the cocaine located inside the Newport

Avenue apartment.




                                                  -5-
        It seems the only evidence that links Mason to the cocaine inside the Newport Avenue

apartment was his proximity to it. 2 But that, in and of itself, is not sufficient to establish that

Mason was aware of both the presence and character of the cocaine or that it was within his

dominion and control. In other words, there is absolutely no evidence establishing that Mason

constructively possessed the cocaine found in the Newport Avenue apartment. As a result, we

must reverse his conviction for possession of cocaine with intent to distribute in violation of

Code § 18.2-248 because the trial court’s judgment was plainly wrong and without evidence to

support it.

                                           III. CONCLUSION

        For the foregoing reasons, we reverse the trial court’s judgment.

                                                                              Reversed and dismissed.




        2
          In its brief, the Commonwealth states “Investigator Stocks stated police conducted three
controlled buys between Mason and the informant at the Newport Avenue apartment, once
within a month of October 11, 2007, once within two weeks of October 11, 2007 and once within
72 hours of October 11, 2007.” This is a misstatement of the evidence presented to the trial
court. Investigator Stocks actually testified, “[w]e did conduct some PC buys, probably [sic]
cause buys, from 3600 Newport Avenue Apartment 4, in the city of Norfolk.” He never testified
from whom those buys were made. In addition, the Commonwealth relies on a search warrant
affidavit presented during a motion to suppress, as well as comments made by the trial court in
its ruling on the motion. The Commonwealth’s attorney did not introduce the affidavit in
evidence at trial, and the court’s ruling on the motion to suppress is clearly not evidence that
could be considered by the trier of fact.

                                                    -6-
