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RICHARDSON v. COMMONWEALTH OF VIRGINIA


RICHARDSON v.
COMMONWEALTH OF VIRGINIA

(unpublished)


JANUARY 13, 1998
Record No. 0288-97-3

MICHAEL ORVILLE RICHARDSON

v.

COMMONWEALTH OF VIRGINIA

MEMORANDUM OPINION[1]
BY JUDGE JOSEPH E. BAKER
FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG

Mosby G. Perrow, III, Judge
Present: Judges Baker, Coleman and Overton
Argued at Salem, Virginia

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 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 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 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."[2]
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.
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
their character and presence at the time and place at which he
was arrested.
For the reasons stated, the judgment of the trial court is
affirmed.
Affirmed.

[1] Pursuant to Code ? 17?116.010 this
opinion is not designated for publication.

[2]
No one named "Early" appeared at trial.

 

FOOTNOTES:

 

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