George A. Hughes v Commonwealth

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Willis, Annunziata and Senior Judge Cole
Argued at Richmond, Virginia
GEORGE A. HUGHES MEMORANDUM OPINION* BY
v. 	Record No. 0111-95-2 	JUDGE JERE M. H. WILLIS, JR.
JANUARY 23, 1996
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF MECKLENBURG COUNTY
William L. Wellons, Judge
Nora J. Miller, Assistant Public Defender
(Office of the Public Defender, on brief),
for appellant.
John K. Byrum, Jr., Assistant Attorney
General (James S. Gilmore, III, Attorney
General; Katherine P. Baldwin, Assistant
Attorney General, on brief), for appellee.
On appeal from a conviction of possession of a knife while a
prisoner in a correctional facility, in violation of Code
§ 53.1-203(4), George A. Hughes contends the evidence is
insufficient to prove that he possessed the knife. 	We agree and
reverse the judgment of the trial court.
On July 23, 1993, Hughes, a prisoner at Mecklenburg
Correctional Center, was placed into cell 36 in building 5. 	No
search of the cell was performed on that day.
On January 26, 1994, a "shake-down" of Hughes' cell was
conducted and a homemade knife was discovered near the toilet,
hidden behind a small section of false wall constructed of
*Pursuant to Code § 17-116.010 this opinion is not
designated for publication.

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cardboard and painted to blend in with the wall. 	The
correctional officer who discovered the knife tapped the wall
with his baton and saw it move. 	He testified, "[i]f I hadn't hit
it I wouldn't have seen it."
The cell was searched on August 10, 1993. 	At that time,
neither the knife nor the section of false wall was discovered.
However, the techniques employed in that search were not
described. 	There was no evidence that the wall, or the
particular place on the wall, was tapped or that tapping the wall
was a routine element of a "shake-down."
On appeal, we view the evidence in the light most favorable
to the Commonwealth, granting to it all reasonable inferences
fairly deducible therefrom. 	Higginbotham v. Commonwealth, 216
Va. 349, 352, 218 S.E.2d 534, 537 (1975). 	When a conviction is
based on circumstantial evidence, "all necessary circumstances
proved must be consistent with guilt and inconsistent with
innocence." 	Inge v. Commonwealth, 217 Va. 360, 366, 228 S.E.2d
563, 567 (1976).
Hughes contends that the evidence is insufficient to prove
that he possessed the knife. 	The burden was on the Commonwealth
to prove beyond a reasonable doubt that Hughes was "consciously
in physical or constructive possession" of the knife. 	Wright v.
Commonwealth, 217 Va. 669, 670, 232 S.E.2d 733, 734 (1977).
Constructive possession may be proved by "evidence of acts,
statements, or conduct of the accused or other facts or

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circumstances which tend to show that the defendant was aware of
both the presence and character of the [item] and that it was
subject to his dominion and control." 	Powers v. Commonwealth,
227 Va. 474, 476, 316 S.E.2d 739, 740 (1984).
The knife was not discovered in Hughes' physical possession.
The Commonwealth contends that the evidence sufficiently proves
his constructive possession. 	It argues that the fact that the
knife was not discovered at the August 10, 1993 search but was
found on January 26, 1994, supports the inference that Hughes
concealed the knife behind the false wall during the interim. 	We
disagree. 	The knife could have been concealed by a prior
occupant of the cell. 	The fact that the knife was not discovered
during the August search does not preclude a finding that it
could have been behind the false wall at that time. 	The officer
who found the knife testified that he would not have found the
knife had he had not tapped the particular spot on the wall with
his baton. 	The officer who searched the cell in August may not
have tapped this spot.
The judgment of the trial court is reversed.
Reversed.