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COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bumgardner and Senior Judge Overton
Argued at Richmond, Virginia
Record No. 2455-02-2
COMMONWEALTH OF VIRGINIA
BY JUDGE LARRY G. ELDER
OCTOBER 14, 2003
FROM THE CIRCUIT COURT OF DINWIDDIE COUNTY
James F. D’Alton, Judge
(Stephen L. Hewlett, on brief), for appellant. Appellant
(Jerry W. Kilgore, Attorney General; John H. McLees, Senior
Assistant Attorney General, on brief), for appellee. Appellee
submitting on brief.
Marcus Gilliam (appellant) appeals from his bench trial
conviction for attempting to
deliver marijuana to a prisoner in violation of Code ??
18.2-26 and 18.2-474.1.On
contends the evidence was insufficient to support his conviction
because testimony from credible
defense witnesses contradicted the Commonwealth’s evidence that
appellant was the only person
who had an opportunity to hide the marijuana in the men’s room
of the Dinwiddie County
Sheriff’s Office. The Commonwealth contends appellant failed to
preserve this issue for appeal.
We assume without deciding that appellant properly preserved for
appeal his challenge to the
sufficiency of the evidence but conclude the evidence supports
his conviction. Thus, we affirm.
Under familiar principles of appellate review, we must examine
the evidence in the light
most favorable to the Commonwealth, granting to it all
reasonable inferences fairly deducible
therefrom. Martin v. Commonwealth, 4 Va. App. 438, 443, 358
S.E.2d 415, 418 (1987). In
assessing witness credibility, the fact finder may accept the
parts of a witness’ testimony it finds
believable and reject other parts as implausible. Pugliese v.
Commonwealth, 16 Va. App. 82, 92,
428 S.E.2d 16, 24 (1993). "Determining the credibility of
witnesses who give conflicting
accounts is within the exclusive province of the [trier of
fact], which has the unique opportunity
to observe the demeanor of the witnesses as they testify."
Lea v. Commonwealth, 16 Va. App.
300, 304, 429 S.E.2d 477, 479 (1993). The conclusions of the
fact finder on issues of witness
credibility may be disturbed on appeal only if this Court finds
that the witness’ testimony was
"inherently incredible, or so contrary to human experience
as to render it unworthy of belief."
Fisher v. Commonwealth, 228 Va. 296, 299-300, 321 S.E.2d 202,
Further, "[c]ircumstantial evidence is as competent and is
entitled to as much weight as
direct evidence, provided it is sufficiently convincing to
exclude every reasonable hypothesis
except that of guilt." Coleman v. Commonwealth, 226 Va. 31,
53, 307 S.E.2d 864, 876 (1983).
"[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).
Here, appellant conceded at trial that the issue was whether
someone else entered the
men’s restroom at the Dinwiddie County Sheriff’s Office after
appellant had departed and before
Deputy Dwayne Snead re-entered and searched, leaving open the
possibility that someone else
placed the bag of marijuana in the toilet brush holder.
Appellant conceded at trial "the deputy’s
testimony is that nobody else went in the bathroom after
[appellant]." The evidence in the
record, viewed in the light most favorable to the Commonwealth,
supports this assertion.
Under the Commonwealth’s evidence, the toilet brush holder and
the rest of the bathroom
were free of contraband when Deputy Snead searched at around
7:00 p.m. Deputy Perry Lynch
observed Deputy Snead enter and exit the bathroom at that time.
Deputy Lynch then observed
the bathroom without interruption until Deputy Snead entered and
searched again at 7:17 p.m., at
which time he found the bag of marijuana in the toilet brush
holder. Deputy Lynch testified
without equivocation that no one other than appellant entered
the men’s restroom during that
time. Deputy Snead confirmed that he heard the door open and
close twice during that period of
time, which was consistent with Deputy Lynch’s testimony that
only one person, appellant, was
in the restroom during that time.
The trial court was entitled, as it did expressly, to accept as
credible the testimony of
Deputies Lynch and Snead establishing that no one other than
appellant entered the restroom
before Deputy Snead found the marijuana and to simultaneously
reject the testimony of
appellant’s brother-in-law and another witness that two other
people entered and exited the
restroom in the interim. Further, appellant admitted that he was
a user of marijuana. The only
hypothesis flowing from the evidence, viewed in the light most
favorable to the Commonwealth,
is that appellant was the person who secreted the bag of
marijuana in the toilet brush holder.
For these reasons, we hold the evidence was sufficient to prove
appellant committed the
charged offense. Therefore, we affirm.
Code ? 17.1-413, this opinion is not designated for publication.
and sentencing order reference both the substantive statute and the
attempt statute. However, because the substantive statute itself
specifically proscribes attempts,
reference to Code ? 18.2-26 is unnecessary. Because the
sentencing order references both
statutes, this opinion does so as well.