Calvin Austin Hargrove v. Commonwealth of VA ( 2002 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judge Annunziata and
Senior Judge Coleman
Argued at Richmond, Virginia
CALVIN AUSTIN HARGROVE
MEMORANDUM OPINION * BY
v. Record No. 2084-00-1 CHIEF JUDGE JOHANNA L. FITZPATRICK
FEBRUARY 19, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
James A. Cales, Jr., Judge
Barrett R. Richardson (Richardson &
Rosenberg, LLC, on brief), for appellant.
Stephen R. McCullough, Assistant Attorney
General (Mark L. Earley, Attorney General;
Shelly R. James, Assistant Attorney General,
on brief), for appellee.
Calvin Austin Hargrove (appellant) contends the evidence in
his bench trial was insufficient to convict him of possession of
cocaine with intent to distribute in violation of
Code § 18.2-248. For the following reasons, we affirm the
judgment of the trial court.
I. BACKGROUND
Under familiar principles of appellate review, we examine the
evidence in the light most favorable to the Commonwealth, the
prevailing party below, granting to it all reasonable inferences
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
fairly deducible therefrom. See Juares v. Commonwealth, 26 Va.
App. 154, 156, 493 S.E.2d 677, 678 (1997).
So viewed, the evidence established that on January 5,
1995, at approximately 4:30 p.m., Officers Francis Natal (Natal)
and Judd Robinson (Robinson) saw appellant standing with another
man in the 900 block of County Street, Portsmouth, Virginia.
They "drove right up to them" in an unmarked police vehicle and
when they were approximately five to ten feet away, the two
individuals turned around and walked away. While appellant
walked, he made a "motion" with his right hand, opened it, and a
clear plastic baggie fell out of his hand. Natal ran up to the
location where appellant dropped the bag and picked it up. He
saw numerous rocks which he believed were crack cocaine. Natal
yelled to Robinson "I've got the dope," and appellant began to
run. Natal and Robinson stopped and arrested appellant shortly
thereafter. In a search incident to the arrest, the officers
found a working pager and $370 in U.S. currency. An analysis of
the substance in the bag revealed that the off-white solid
material was 8.2 grams of cocaine, an amount of drugs described
by an expert as inconsistent with personal use.
At trial, Natal testified that he knew appellant "on the
street" before January 5, but he had no personal contact with
him. He also stated that it was "broad daylight" at the time he
saw appellant drop the plastic bag and attempt to flee.
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Appellant testified that he had never been convicted of a
felony or any crime involving dishonesty or theft. He claimed
that on January 5, he stopped at a store to get his pager
repaired and was walking from that store with four other
individuals. He stated that he did not know that the police
officers were approaching and ran because the others started to
run. "Everybody just ran. I knew there was a lot of stuff
going on in the area as far as a lot of people getting hurt
around that park, I was – so I just ran, my first reaction." He
denied ever having the drugs in his possession.
II. STANDARD OF REVIEW
In reviewing sufficiency of the evidence, "the judgment of
the trial court sitting without a jury is entitled to the same
weight as a jury verdict." Saunders v. Commonwealth, 242 Va.
107, 113, 406 S.E.2d 39, 42, cert. denied, 502 U.S. 944 (1991).
"[T]he trial court's judgment will not be set aside unless
plainly wrong or without evidence to support it." Hunley v.
Commonwealth, 30 Va. App. 556, 559, 518 S.E.2d 347, 349 (1999).
III. SUFFICIENCY OF THE EVIDENCE
Appellant argues that it "defies reason" that he would
throw down narcotics in broad daylight in plain view of a police
officer located five to ten feet away from him. Further, he
maintains that because his version of the facts is not
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inherently incredible, the Commonwealth failed to carry the
burden of proof beyond a reasonable doubt. We disagree.
"[P]ossession may be proved by evidence of acts,
declarations, or conduct of the accused from which the inference
may be fairly drawn that he knew of the existence of narcotics
at the place where they were found." Hardy v. Commonwealth, 17
Va. App. 677, 682, 440 S.E.2d 434, 437 (1994).
Here the evidence is sufficient to support the trial
court's finding that appellant possessed cocaine with the intent
to distribute. Natal testified that he saw appellant from a
distance of five to ten feet in "broad daylight" throw the
package of cocaine to the ground. This direct evidence
contradicts appellant's denial that he was the person who
discarded the drugs. Credible evidence supports the trial
court's determination.
The credibility of a witness 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). In its role of judging witness
credibility, the fact finder is entitled to
disbelieve the self-serving testimony of the
accused and to conclude that the accused is
lying to conceal his guilt. See Speight v.
Commonwealth, 4 Va. App. 83, 88, 354 S.E.2d
95, 98 (1987) (en banc).
Marable v. Commonwealth, 27 Va. App. 505, 509-10, 500 S.E.2d
233, 235 (1998). See also White v. Commonwealth, 25 Va. App.
662, 664, 492 S.E.2d 451, 452 (1997); Motley v. Commonwealth, 17
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Va. App. 439, 440, 437 S.E.2d 232, 233 (1993); Collins v.
Commonwealth, 13 Va. App. 177, 178, 409 S.E.2d 175, 175 (1991).
Thus, appellant's contention that it "defies reason" that he
would drop the drugs in the presence of the police is without
merit.
Additionally, appellant's flight can also be considered in
determining whether he possessed the drugs.
"Although flight alone may not supply sufficient reason to
suspect a person of criminal activity, it may otherwise color
apparently innocent conduct and, under appropriate
circumstances, give rise to reasonable suspicion of criminal
activity." Buck v. Commonwealth, 20 Va. App. 298, 303, 456
S.E.2d 534, 536 (1995).
Headlong flight -- wherever it occurs -- is
the consummate act of evasion: it is not
necessarily indicative of wrongdoing, but it
is certainly suggestive of such. In
reviewing the propriety of an officer's
conduct, courts do not have available
empirical studies dealing with inferences
drawn from suspicious behavior, and we
cannot reasonably demand scientific
certainty from judges or law enforcement
officers where none exists. Thus, the
determination of reasonable suspicion must
be based on commonsense judgments and
inferences about human behavior.
Illinois v. Wardlow, 528 U.S. 119, 124-25 (2000).
IV. CONCLUSION
Credible evidence supports the trial court's finding that
the evidence was sufficient to convict appellant of possession
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with intent to distribute cocaine. Natal saw appellant drop the
bag of drugs in broad daylight. He retrieved the drugs from the
location where appellant dropped them and arrested him after his
flight from the scene. The trial court was not required to
believe appellant's version of the events and could conclude
that he was lying to conceal his guilt.
For these reasons, we affirm the trial court.
Affirmed.
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