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COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Bumgardner and Frank
Record No. 3232-02-3
JAY FRANKLIN HOGSTON
COMMONWEALTH OF VIRGINIA
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 submitting on brief.
(Jerry W. Kilgore, Attorney General; Margaret W. Reed, Assistant
Attorney General, on brief), for appellee. Appellee submitting
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
"When considering the sufficiency of the evidence on
appeal of a criminal conviction, we must view all the evidence
the light most favorable to the Commonwealth and accord to the
evidence all reasonable inferences fairly deducible therefrom.
jury’s verdict will not be disturbed unless plainly wrong or
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
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
was located on the, [sic] it would still be on the driver’s
board but up on the side of the hump which is normally where
gear shift would be. It was like stuck to the carpet right in
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
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.
"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
"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
"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
"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
For the foregoing reasons, we affirm.
Code ? 17.1-413, this opinion is not designated for publication.