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HOGSTON v. COMMONWEALTH




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HOGSTON

v.

COMMONWEALTH


COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judges Bumgardner and Frank

Record No. 3232-02-3

JAY FRANKLIN HOGSTON

v.

COMMONWEALTH OF VIRGINIA

 

MEMORANDUM OPINION[1]
BY CHIEF JUDGE JOHANNA L. FITZPATRICK

NOVEMBER 25, 2003

FROM THE CIRCUIT COURT OF ROCKINGHAM COUNTY

John J. McGrath, Jr., Judge

(R. Darren Bostic; Bostic & Bostic, PC, on brief), for
appellant.

Appellant submitting on brief.

(Jerry W. Kilgore, Attorney General; Margaret W. Reed, Assistant

Attorney General, on brief), for appellee. Appellee submitting
on

brief.

Jay Franklin Hogston (appellant) was convicted in a jury trial
of possession of cocaine, in

violation of Code ? 18.2-250(A)(a). He contends the evidence
was insufficient to prove he

constructively possessed the cocaine. For the following reasons,
we affirm appellant’s

conviction.

I. BACKGROUND

"When considering the sufficiency of the evidence on

appeal of a criminal conviction, we must view all the evidence
in

the light most favorable to the Commonwealth and accord to the

evidence all reasonable inferences fairly deducible therefrom.
The

jury’s verdict will not be disturbed unless plainly wrong or
without

evidence to support it."

Hucks v. Commonwealth, 33 Va. App. 168, 177, 531 S.E.2d 658, 662
(2000) (quoting Clark v.

Commonwealth, 30 Va. App. 406, 409-10, 517 S.E.2d 260, 261
(1999)).

Properly viewed, the evidence established that on December 27,
2001, appellant was

arrested on outstanding warrants after he exited from a car at
the Family Convenience Store.

Appellant was the sole occupant and driver of the car. After the
arrest, Officer Christopher S.

Showalter searched appellant’s car where he found a crack pipe
and a small corner of a plastic

baggie containing cocaine. Showalter found the crack pipe
"in the driver’s door in a

compartment there" and when asked to describe the
compartment in more detail stated, "it was

like a little panel there on the side of the door."
Showalter also said the pipe was in plain view,

"when I opened the door I looked down and there it
was." He also recovered

a small plastic baggie corner which contained white residue
which

was located on the, [sic] it would still be on the driver’s
side floor

board but up on the side of the hump which is normally where
your

gear shift would be. It was like stuck to the carpet right in
front of

the driver’s seat.

Appellant was indicted for possession of cocaine. At trial, the
titled owner of the car,

Alvin Dove, testified he gave possession of the car to appellant
two months earlier in October.

Appellant was making payments to him and "when [appellant] got it paid for the car was

[appellant’s]." When shown the pipe and baggie, Dove said
they were not in the car when he

gave it to appellant. Appellant testified he did not own the car
he was driving the night of his

arrest and denied it was his cocaine or his crack pipe. He said
he lent the car to Andre Pharr,

who drove it to see a friend, Matthew Swain, and that Pharr and
Swain used drugs. Neither

Pharr nor Swain testified at trial. Appellant admitted he was a
five-time convicted felon.

The jury returned a verdict of guilty, and appellant appeals
that conviction.

II. SUFFICIENCY OF THE EVIDENCE

Appellant contends the evidence was insufficient to convict him
of possessing the

cocaine because the Commonwealth failed to exclude every
reasonable hypothesis of innocence.

We disagree.

"The statement that circumstantial evidence must exclude
every reasonable theory of

innocence is simply another way of stating that the Commonwealth
has the burden of proof

beyond a reasonable doubt." Commonwealth v. Hudson, 265 Va.
505, 513, 578 S.E.2d 781, 785

(2003).

"Where circumstantial evidence is sufficient to exclude
every reasonable hypothesis of

innocence, it is sufficient to support a conviction. The
hypotheses which must be thus excluded

are those which flow from the evidence itself, and not from the
imaginations of defense

counsel." Cook v. Commonwealth, 226 Va. 427, 433, 309
S.E.2d 325, 328 (1983) (citing Turner

v. Commonwealth, 218 Va. 141, 148-49, 235 S.E.2d 357, 361
(1977)).

"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.’"

Langston v. Commonwealth, 28 Va. App. 276, 285, 504 S.E.2d 380,
384 (1998) (citations

omitted).

"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." Marable v. Commonwealth, 27 Va. App. 505, 509-10,
500 S.E.2d 233, 235 (1998) (citing

Speight v. Commonwealth, 4 Va. App. 83, 88, 354 S.E.2d 95, 98
(1987) (en banc)). Credible

evidence supports the jury’s finding that appellant possessed
the pipe and baggie containing the

cocaine residue. Appellant was the driver and sole occupant of
the car. While not the titled

owner, he was purchasing the car and had sole possession of it
for two months. The car’s owner

stated the pipe and baggie were not his and they were not in the
car when he gave it to appellant.

Additionally, the pipe and baggie were in plain view on the
driver’s side of the car. The jury was

entitled to disregard the testimony of appellant, a five-time
convicted felon, that he lent the car to

someone else and that the pipe and cocaine belonged to someone
else. Thus, we hold that the

evidence was sufficient to prove appellant knowingly possessed
the cocaine at the time of his

arrest.

For the foregoing reasons, we affirm.

Affirmed.

 

FOOTNOTES:

[1]Pursuant to
Code ? 17.1-413, this opinion is not designated for publication.


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