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GRAVES v. COMMONWEALTH OF VA (56246)


GRAVES v. COMMONWEALTH OF VA

(unpublished)


JANUARY 12, 1999
Record No.
2046-97-3

GARRETT E. GRAVES

v.

COMMONWEALTH OF VIRGINIA

UPON A REHEARING EN
BANC

FROM THE
CIRCUIT COURT OF HALIFAX COUNTY

William L.
Wellons, Judge

Argued at
Richmond, Virginia

Present:
Chief Judge Fitzpatrick, Judges Benton, Coleman, Willis, Elder,
Bray, Annunziata, Overton, Bumgardner and Lemons

MEMORANDUM
OPINION
[1] BY JUDGE NELSON
T. OVERTON

Buddy A.
Ward, Public Defender (Office of the Public Defender, on brief),
for appellant.

Robert H.
Anderson, III, Assistant Attorney General (Mark L. Earley,
Attorney General, on brief), for appellee.


Garrett Graves (defendant)
was convicted of possession of a controlled substance, in
violation of Code Sect. 18.2-250, by the Circuit Court of
Halifax County. He appealed, contending that the evidence was
insufficient to support his conviction. A panel of this Court
held the evidence to be insufficient and reversed the judgment of
the trial court. See Graves v. Commonwealth, Record
No. 2046-97-2 (Va. Ct. App. June 16, 1998). We stayed the mandate
of that decision and granted a rehearing en banc. Upon rehearing
en banc, we affirm the judgment of the trial court.

"An appellate court
must discard all evidence of the accused that conflicts with that
of the Commonwealth and regard as true all credible evidence
favorable to the Commonwealth and all fair inferences reasonably
deducible therefrom." Lea v. Commonwealth, 16 Va.
App. 300, 303, 429 S.E.2d 477, 479 (1993). So viewed, the
evidence adduced at trial revealed that on December 6, 1996,
Officer Keith Tribble of the Halifax County Sheriff’s Department
stopped a car driven by defendant because the car had an
inoperable headlight. Defendant was the only occupant of the
vehicle. Officer Tribble talked with defendant, read him his Miranda
warnings and arrested defendant for driving while intoxicated and
without an operator’s license.

Defendant told Officer
Tribble that the car belonged to defendant, he had cleaned the
car earlier that evening and he previously had two passengers in
the car. The car, however, was registered to defendant’s sister.
Pursuant to the arrest, Officer Tribble searched the car and
found a bag which contained a perforated beer can. The bag was
located on the floor of the front passenger’s side of the car.
The beer can was modified so that it could be used to smoke
cocaine and, in fact, cocaine residue was visible on the can. A
laboratory analysis later confirmed the presence of cocaine.
Officer Tribble also retrieved several small, white chunks from
the center console of the car. A laboratory confirmed that these
were cocaine. After the car was towed to the police station an
inventory search was performed which uncovered another can
underneath the driver’s front seat, modified in a similar manner
to the first.

The decision of the trial
court shall be affirmed unless it is plainly wrong or without
support in the evidence. See Brown v. Commonwealth,
5 Va. App. 489, 491, 360 S.E.2d 719, 721 (1988). For a conviction
of possession of a controlled substance to stand, the
Commonwealth needed to prove defendant either actually or
constructively possessed the substance. See White v.
Commonwealth
, 24 Va. App. 446, 452, 482 S.E.2d 876, 879
(1997). Because the Commonwealth concedes that the conviction is
grounded in a constructive possession theory, "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." Powers v. Commonwealth, 227
Va. 474, 476, 316 S.E.2d 739, 740 (1984). The fact that the
cocaine was found in a vehicle occupied by defendant does not
create the presumption he possessed the drug, but is only one of
the circumstances which we must consider. See Code
Sect. 18.2-250; Hardy v. Commonwealth, 17 Va. App.
677, 682, 440 S.E.2d 434, 437 (1994).

We hold that the evidence
presented at trial, taken in the proper light of appellate
review, supports the conviction. Defendant was the sole occupant
of the vehicle. The only evidence to the contrary comes from his
own statements, which the trial court was entitled to find
incredible. Cocaine and drug use paraphernalia were found in the
car. The cocaine rocks were in plain sight and within inches of
defendant’s seat when he was stopped. Finally, defendant
testified he cleaned the car earlier in the evening, bolstering
the evidence that he was familiar with the incriminating items
contained therein.

In cases such as this,
where the Commonwealth lacks direct evidence of guilt and must
prove the case by circumstantial evidence, the facts must exclude
"every reasonable hypothesis of innocence." Tucker
v. Commonwealth
, 18 Va. App. 141, 143, 442 S.E.2d 419, 421
(1994). Yet such hypotheses must flow from the evidence and not
result from speculation by the parties or the court. See Hamilton
v. Commonwealth
, 16 Va. App. 751, 755, 433 S.E.2d 27, 29
(1993). When such a hypothesis has been rejected by the trial
court, as it was in this case, that rejection is a finding of
fact, binding on appeal. See Brown, 5 Va. App. at
491, 360 S.E.2d at 721. The hypothesis that a previous passenger
left the cocaine in the car without defendant’s knowledge was
rejected by the trial court, not supported by the evidence, and
we may not resurrect it on appeal. All the facts cognizable by
this Court fully support the inference that defendant controlled
the car he was driving and knew of the cocaine and cocaine
smoking devices contained therein.

Because the evidence was
sufficient to support defendant’s conviction, the conviction is
affirmed.

Affirmed.

 

FOOTNOTES:

[1] Pursuant to Code
Sect. 17.1-413, recodifying Code Sect. 17-116.010, this
opinion is not designated for publication.


Dissenting Opinion


Elder, J., with whom
Benton, J., joins, dissenting.

I respectfully dissent for
the reasons stated in the memorandum opinion of the panel. See
Graves v. Commonwealth, Record No. 2046-97-2 (Va. Ct. App.
June 16, 1998).

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