Kenneth Charles Cleveland v Commonwealth

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Benton, Willis and Bray
Argued at Richmond, Virginia
KENNETH CHARLES CLEVELAND
v. 	Record No. 1551-94-3 	MEMORANDUM OPINION* BY
JUDGE JERE M. H. WILLIS, JR.
COMMONWEALTH OF VIRGINIA 	FEBRUARY 13, 1996
FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG
Mosby G. Perrow, III, Judge
James Hingeley, Public Defender (Office of
the Public Defender, on brief), for
appellant.
Robert H. Anderson, III, Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.
On appeal from his convictions of possession of cocaine and
possession of a firearm while possessing cocaine, Kenneth Charles
Cleveland contends that the evidence is insufficient to support
his conviction of possession of cocaine and, thus, his conviction
for possession of a firearm while possessing cocaine. 	We agree
and reverse the judgment of the trial court.
On February 3, 1994, Lynchburg police officers executed a
search warrant at the home of Carroll Turner and Charles Snead.
When the police entered the house, they found Cleveland and Steve
Mavilia in the kitchen. 	Neither man lived at the residence.
Both were standing with their backs to the police. 	Cleveland
stood "maybe a little bit further than arm's length away from" a
*Pursuant to Code § 17-116.010 this opinion is not
designated for publication.

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bar area in the kitchen and Mavilia stood behind him. 	The
officers saw, in plain view, a beer can on the counter about four
feet from Cleveland. 	"[The can] was crimped in the center and it
had holes poked into it," and smoke was rising from it.
Subsequent analysis showed residue on the can was cocaine.
The officers ordered Cleveland and Mavilia onto the floor.
As Cleveland got down on the floor, one of the officers saw him
pull what appeared to be a weapon from his waistband and lie on
it. 	The officer seized the weapon, a 9 mm. handgun.
Vickie Matthews testified that Cleveland had accompanied her
to Turner's house to recover money that she had previously lent
to Susan Cash, who was then living with Turner. 	Ms. Matthews
testified that Cleveland left Turner's house to get change and
had returned only a few minutes before the police executed the
search warrant.
Cleveland testified that he had purchased the handgun
several days earlier "for target practice and stuff." 	He
testified that he was armed at the time of his arrest because he
had been "target practicing" earlier in the day. 	He testified
that the beer can was not on the counter when he first entered
the house, but when he returned from the store, he saw it
"smoking" on the countertop. 	He denied that the beer can was his
and that he had used it to inhale cocaine.
"Where the sufficiency of the evidence is challenged on
appeal, the court must consider the evidence in the light most

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favorable to the Commonwealth, giving to it all reasonable
inferences fairly deducible therefrom." 	Brown v. Commonwealth, 5
Va. App. 489, 491, 364 S.E.2d 773, 774 (1988). 	The "judgment of
a trial court sitting without a jury is entitled to the same
weight as a jury verdict and will not be disturbed on appeal
unless plainly wrong or without evidence to support it." 	Id.
(citations omitted).
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.' 	While proximity to a controlled
substance is insufficient alone to establish
possession, it is a factor to consider when determining
whether the accused constructively possessed drugs.
Pemberton v. Commonwealth, 17 Va. App. 651, 654, 440 S.E.2d 420,
422 (1994) (citations omitted).
Although the evidence proved that the residue on the beer
can was cocaine and that Cleveland was in the room with the
"smoking" can, it was insufficient to prove that Cleveland
constructively possessed the can or the cocaine. 	He asserted no
"dominion and control" over the can. 	No cocaine was found on his
person. 	Another person was essentially as close to the can as
Cleveland. 	No evidence proved that Cleveland was aware of the
contents of the can or of its use. 	Thus, the Commonwealth failed
to carry its burden of proving beyond a reasonable doubt that
Cleveland was aware of the "presence and character " of the
cocaine, and that it was subject to his "dominion and control."

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Id.
The judgment of the trial court is reversed and the charges
are ordered dismissed.
Reversed and dismissed.