Michael Orville Richardson v. Commonwealth ( 1998 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Coleman and Overton
Argued at Salem, Virginia
MICHAEL ORVILLE RICHARDSON
MEMORANDUM OPINION * BY
v. Record No. 0288-97-3 JUDGE JOSEPH E. BAKER
JANUARY 13, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG
Mosby G. Perrow, III, Judge
Clinton R. Shaw, Jr. (Office of the Public
Defender, on brief), for appellant.
Kathleen B. Martin, Assistant Attorney
General (Richard Cullen, Attorney General;
John H. McLees, Jr., Assistant Attorney
General, on brief), for appellee.
Michael Orville Richardson (appellant) appeals from his
bench trial conviction by the Circuit Court of the City of
Lynchburg (trial court) for possession of cocaine. Appellant
contends that the evidence is insufficient to support his
conviction. We disagree and affirm his conviction.
As the parties are fully conversant with the record, this
memorandum opinion recites only those facts necessary to a
disposition of the appeal.
Under familiar principles of appellate review, we examine
the evidence in the light most favorable to the Commonwealth,
granting to it all reasonable inferences fairly deducible
therefrom. See Martin v. Commonwealth, 4 Va. App. 438, 443, 358
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
S.E.2d 415, 418 (1987). 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. See id. The credibility of a
witness, the weight accorded the testimony, and the inferences to
be drawn from proven facts are matters solely for the fact
finder's determination. See Long v. Commonwealth, 8 Va. App.
194, 199, 379 S.E.2d 473, 476 (1989). The fact finder is not
required to believe all aspects of a witness' testimony; it may
accept some parts as believable and reject other parts as
implausible. See Pugliese v. Commonwealth, 16 Va. App. 82, 92,
428 S.E.2d 16, 24 (1993).
[P]ossession of a controlled substance may be
actual or constructive. "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.'"
McGee v. Commonwealth, 4 Va. App. 317, 322, 357 S.E.2d 738, 740
(1987) (quoting Drew v. Commonwealth, 230 Va. 471, 473, 338
S.E.2d 844, 845 (1986)) (other citation omitted). Although mere
proximity to the drugs is insufficient to establish possession,
it is a factor which may be considered with other evidence in
determining whether the accused possessed drugs. See Brown v.
Commonwealth, 15 Va. App. 1, 9, 421 S.E.2d 877, 882 (1992)
(en banc). "The Commonwealth is not required to prove that there
- 2 -
is no possibility that someone else may have planted, discarded,
abandoned or placed the drugs . . . ." Id. at 10, 421 S.E.2d at
883. Thus, in resolving this issue, the Court must consider "the
totality of the circumstances disclosed by the evidence." Womack
v. Commonwealth, 220 Va. 5, 8, 255 S.E.2d 351, 353 (1979).
The record before us discloses that at approximately
11:00 p.m. on August 22, 1996, while on patrol, two police
officers observed appellant sitting on a low wall directly
adjacent to an apartment house. The top of the wall was about
two feet from the sidewalk on the front side and about four
inches from a grassy area on the back side. Sitting on the wall
three or four feet to appellant's left were a man and a woman.
Appellant saw the police approaching, and the officers observed
appellant move his left hand, which was closed, as if putting
something behind his back. The officers then saw appellant
return his hand to the front portion of his body. Neither the
man nor the woman sitting on the wall made any motions as the
police approached.
When the police stopped their vehicle directly across the
street from appellant, he got up and began to walk away. The
couple also got up and walked off in the opposite direction from
appellant. The officers immediately retrieved a plastic sandwich
baggie containing a large chunk of cocaine from the grassy area
directly behind the place on the wall where appellant had been
sitting. On top of the wall, about half a foot to the left of
- 3 -
where appellant had been sitting, directly next to where his left
hip had been, the officers found several smaller chunks of crack
cocaine. The baggie, the cocaine inside, and the loose chunks of
cocaine were all dry.
The officers stopped appellant just a few feet from where he
had been sitting, arrested him for possession of cocaine, and
read him his rights. Appellant denied that the drugs were his
and claimed that they belonged to a "guy[] by the name of
Early." 1 In addition, appellant admitted that he was familiar
with cocaine. At trial, appellant further admitted that he had
been convicted of two felonies and a misdemeanor for stealing.
Circumstantial evidence of possession is sufficient to
support a conviction provided it excludes every reasonable
hypothesis of innocence. See, e.g., Tucker v. Commonwealth, 18
Va. App. 141, 143, 442 S.E.2d 419, 420 (1994). However, "[t]he
Commonwealth need only exclude reasonable hypotheses of innocence
that flow from the evidence, not those that spring from the
imagination of the defendant." Hamilton v. Commonwealth, 16 Va.
App. 751, 755, 433 S.E.2d 27, 29 (1993). Whether an alternative
hypothesis of innocence is reasonable is a question of fact, see
Cantrell v. Commonwealth, 7 Va. App. 269, 290, 373 S.E.2d 328,
339 (1988), and a determination by the fact finder, therefore, is
binding on appeal unless plainly wrong. See Martin, 4 Va. App.
at 443, 358 S.E.2d at 418.
1
No one named "Early" appeared at trial.
- 4 -
Viewed in the light most favorable to the Commonwealth, the
evidence sufficiently shows that appellant was aware of the
presence and character of the cocaine and had exercised dominion
and control over it. As appellant saw the officers drive up, he
"[made] a hand motion with his [closed] left hand as if he was
placing something behind his back." He then got up and began to
walk away. The officers immediately found a baggie containing "a
large chunk" of cocaine "[j]ust behind the wall where
[appellant's] hand [had been]" and some loose chunks of cocaine
on top of the wall only six inches from where appellant had been
sitting. All the items were clean and dry.
The trial judge, as the finder of fact, was entitled to
reject the testimony of appellant, a convicted felon, as
incredible, and to conclude that he was lying to conceal his
guilt. After appellant's substantive testimony has been
discarded, the only reasonable hypothesis flowing from the
remaining evidence is that appellant exercised dominion and
control over the cocaine found both in the baggie and on the
wall. It is clear that appellant was aware of the presence and
character of the drugs.
In accord with Collins v. Commonwealth, 13 Va. App. 177,
179-80, 409 S.E.2d 175, 176 (1991), and Brown v. Commonwealth,
5 Va. App. 489, 364 S.E.2d 773 (1988), we hold that the evidence
sufficiently supports the trial court's finding that appellant
exercised dominion and control over the drugs and was aware of
- 5 -
their character and presence at the time and place at which he
was arrested.
- 6 -
For the reasons stated, the judgment of the trial court is
affirmed.
Affirmed.
- 7 -