Johnny R. Breeden v. Commonwealth ( 1997 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Fitzpatrick and Annunziata
Argued at Richmond, Virginia
JOHNNY R. BREEDEN
MEMORANDUM OPINION * BY
v. Record No. 1473-96-2 JUDGE ROSEMARIE ANNUNZIATA
SEPTEMBER 23, 1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF HENRICO COUNTY
George F. Tidey, Judge
D. Gregory Carr (Bowen, Bryant, Champlin &
Carr, on brief), for appellant.
Kimberley A. Whittle, Assistant Attorney
General (Richard Cullen, Attorney General, on
brief), for appellee.
Following a bench trial, appellant, Johnny R. Breeden, was
convicted of possession of cocaine with intent to distribute and
possession of a concealed weapon. On appeal, he contends that
the Commonwealth's evidence is insufficient to support his
conviction for possession of a concealed weapon. We disagree and
affirm.
Trooper Lowrance attempted to stop appellant for speeding.
Appellant refused to stop and a high-speed chase ensued. When,
nearly an hour later, the vehicle appellant drove finally came to
rest, a passenger exited and surrendered herself to police
custody. Appellant fled but was quickly caught. A struggle to
subdue appellant followed, during which Lowrance noticed a
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
container partially concealed in appellant's hand.
After appellant was apprehended, the container was
recovered; it later proved to contain cocaine and marijuana. A
search of appellant's person revealed a total of $1,000 cash
divided into several bundles, each amounting to between $40 and
$65. A search of the vehicle revealed a police scanner tuned to
the police frequency, rolling papers, and two, nearly identical,
bowie knives. Neither knife was detected from a visual search of
the vehicle. One knife was found under the driver's seat; it was
"not shoved up very far" under the seat and was "accessible to
the driver." The second knife was found in the hatchback area of
the vehicle. Officer Maxwell, testifying as an expert witness,
stated that the packaging of the cocaine recovered in the search,
as well as the nature of the bundling of the cash, was consistent
with drug distribution practices. He further testified that the
presence of the knives and the police scanner was consistent with
the drug trade.
On the scene, appellant denied knowledge of both the drugs
and the knives. He stated that he had "just met" his passenger
at a gas station and that they had decided to "go for a ride."
The vehicle proved to be registered to the passenger's father.
Ultimately, however, the court found that:
when you take the drugs, the money, the
scanner, the knife, and [the] eluding the
police officers, there's no doubt in my mind
that [appellant] possessed the cocaine with
the intent to distribute . . . . Same with
the weapon.
2
When considering the sufficiency of the evidence on appeal
in a criminal case, this Court views the evidence in a 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). The
trial court's judgment will not be set aside unless it appears
that the judgment is plainly wrong or without evidence to support
it. Code § 8.01-680; Josephs v. Commonwealth, 10 Va. App. 87,
99, 390 S.E.2d 491, 497 (1990) (en banc).
The Commonwealth's case was built on circumstantial evidence
of constructive possession.
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 [contraband] 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)). "Circumstantial evidence is sufficient
to support a conviction as long as it excludes every reasonable
hypothesis of innocence." Price v. Commonwealth, 18 Va. App.
760, 767, 446 S.E.2d 642, 646 (1994). "Although `[t]he
Commonwealth is not required to prove that there is no
possibility that someone else may have planted, discarded,
abandoned or placed the [contraband where it was found near an
accused],' all reasonable hypotheses of innocence must be
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excluded." Pemberton v. Commonwealth, 17 Va. App. 651, 655, 440
S.E.2d 420, 422 (1994) (quoting Brown v. Commonwealth, 15 Va.
App. 1, 10, 421 S.E.2d 877, 883 (1992) (en banc)).
In the present case, appellant asserts that the Commonwealth
failed to exclude as a reasonable hypothesis of innocence the
possibility that someone other than appellant placed the knives
where they were found in the vehicle. Specifically, appellant
points to the fact that (1) he denied knowledge of the knives at
the scene; (2) neither knife was immediately visible to the
police officers; and (3) the vehicle in which the knives were
found was registered to the passenger's father, not appellant.
Whether an alternative hypothesis is a "reasonable
hypothesis of innocence" is a question of fact, see Cantrell v.
Commonwealth, 7 Va. App. 269, 290, 373 S.E.2d 328, 339 (1988),
and thus binding on appeal unless it is plainly wrong or without
evidence to support it. See, e.g., Naulty v. Commonwealth, 2 Va.
App. 523, 527, 346 S.E.2d 540, 542 (1986). We find that the
evidence supports the trial court's conclusion that appellant
possessed the knife found under the driver's seat to the
exclusion of the hypothesis that it was placed there by someone
other than appellant.
In its entirety, the evidence established that appellant was
a drug dealer. He was found with a quantity of marijuana and
cocaine packaged for distribution and a quantity of cash
indicative of drug sales. A search of the vehicle he drove
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revealed a police scanner, tuned to the police frequency, as well
as the weapons in question here. The presence of the scanner and
the weapons was consistent with appellant's participation in the
drug trade. The evidence showed that the knife found under the
appellant's seat was "accessible" to him. Appellant's flight,
both during the high speed chase and following the stop, is
further evidence supporting the trial court's finding of guilt.
See Langhorne v. Commonwealth, 13 Va. App. 97, 102, 409 S.E.2d
476, 480 (1991) ("[T]he fact of an accused's flight . . . and
related conduct, are admissible as evidence of guilt, and thus of
guilt itself." (quoting United States v. Ballard, 423 F.2d 127,
133 (5th Cir. 1970))). 1
The fact that appellant denied knowledge of the knives to
the police officers on the scene does not undermine the trial
court's finding to the contrary. Indeed, appellant also denied
knowledge of the drugs he was convicted of possessing with intent
to distribute. The fact that the knives were not apparent to the
officers after a visual inspection of the vehicle is likewise not
dispositive. Nor is ownership of the vehicle dispositive,
especially where, as here, appellant was in possession and
control of it. See Fox v. Commonwealth, 213 Va. 97, 101, 189
S.E.2d 367, 370 (1972).
1
Contrary to appellant's suggestion to the contrary, the
trial court was entitled to infer that appellant's attempt to
elude the police was a reflection not only of some of appellant's
then numerous criminal acts, but all of them, including his
possession of a concealed weapon.
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The appellant's conviction is accordingly affirmed.
Affirmed.
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