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.
- 2 -

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. 
- 3 -

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. 
- 4 -

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, 
- 5 -

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. 
- 6 -

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.