Home / Uncategorized / GARDNER v. COMMONWEALTH OF VA




MAY 5, 1998
Record No. 1244-97-2





Richard S. Blanton, Judge
Present: Judges Baker, Annunziata and Senior Judge Cole
Argued at Richmond, Virginia

(Robert H. Gray, Jr., on brief), for appellant. Appellant
submitting on brief.

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

Appellant, Henry Edward Gardner, appeals his conviction of
possession, while an inmate confined in a state correctional
facility, of an instrument not authorized by the Superintendent
which was capable of causing death or bodily harm in violation of
Code Sect. 53.1?203.
He alleges that the evidence presented at trial was insufficient
to support his conviction. Finding no error, we affirm.

We confine our statement of the facts to those relevant to the
issue on appeal. The facts and all reasonable inferences fairly
deducible from them are stated in the light most favorable to the
Commonwealth, the party prevailing below. Traverso v.
, 6 Va. App. 172, 176, 355 S.E.2d 719, 721

Appellant was confined as an inmate at the Buckingham
Correctional Center on January 1, 1996. On that date, appellant
and another inmate, Richard Nahwooksky, walked together toward
appellant’s cell. As they walked up a stairwell which Nahwooksky
described as one of the "blind spots [at the facility] where
the police can’t really see," appellant kicked a bag and,
upon opening it, found that it contained a knife. Appellant
picked up the knife with the intention of turning it over to
prison authorities so that he might receive a "time cut or
get some extra good time" credited against his prison

Shortly after appellant returned to his cell, Officer G.T.
Scott conducted a routine "shakedown" of appellant’s
cell. Scott observed appellant drop something down into his pants
as he approached the defendant’s cell. Upon searching the
appellant, Scott discovered the knife hidden under appellant’s
pants. When Scott discovered the knife, appellant gave no
explanation about his possession of the knife or his intentions
with regard to it. Appellant contends that the Commonwealth
failed to prove his possession of the knife was unauthorized as
required by statute.[2]
We disagree.

The elements of the crime for which the appellant was
convicted may be proved by direct or circumstantial evidence. See
Coleman v. Commonwealth, 226 Va. 31, 53, 307 S.E.2d 864,
876 (1983) ("Circumstantial 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."). When circumstantial evidence is
relied upon to establish guilt, all reasonable hypotheses of
innocence must be excluded. Byers v. Commonwealth, 23 Va.
App. 146, 152, 474 S.E.2d 852, 854 (1996) (citing Moran v.
, 4 Va. App. 310, 314, 357 S.E.2d 551, 553
(1987)). While no witness for the Commonwealth expressly
testified that the knife appellant possessed was unauthorized by
the superintendent, the circumstantial evidence in the case was
sufficient to sustain the conviction beyond a reasonable doubt.

The following evidence presented by the appellant in the case
at bar, and the reasonable inferences it raises, establishes that
the possession of the knife was unauthorized: (1) appellant
acknowledged that he picked up the knife and kept it for the
purposes of being credited "good time"; (2) he
explained his reason for picking the knife up stating that
"prison is violent . . . . It’s not a
good thing to just leave things like this there,"; and (3)
he explained his reason for not immediately turning the knife
over to prison officials as "You don’t rat on somebody for
anything." This evidence raises the reasonable inference
that appellant’s possession of the knife was unauthorized and in
violation of prison rules.

In addition, the Commonwealth’s evidence supports the clear
inference that appellant’s possession of the knife was
unauthorized. Appellant attempted to conceal the knife in his
pants when he was approached by Officer Scott who was about to
conduct a shakedown search of his cell. Upon finding the knife,
Scott put it into a bag for confiscated items. Finally,
Nahwooksky testified that when appellant took and kept the knife
with the stated intention of getting a "time cut,"
Nahwooksky tried to persuade appellant to "leave it
alone," noting there was "no telling what’s happening
with this knife." Nahwooksky also gave the following
explanation of the basis upon which an inmate’s request for a
time cut would be considered:

Usually when an inmate says they are going to try to get a
time cut, they find . . . a weapon or they know
some type of knowledge about something that seriously is going
to hurt somebody or involve the security matter in the

(Emphasis added).

Finally, during closing argument defense counsel substantially
conceded the point when he argued: "[The Commonwealth’s
Attorney] rightfully says if you look at the instruction about
what it does take to prove the case, it looks like they’ve got
, A, B, and C, inmate, had a weapon, not authorized,
capable of causing harm. That’s there. It’s there. I can’t blink
it away. I can’t pretend like it’s not there." (Emphasis
added). Accordingly, we affirm appellant’s conviction.







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

Section 53.1?203 provides in relevant part:

It shall be unlawful for a prisoner in a state, local or
community correctional facility or in the custody of an employee
thereof to:

* * * * * * *

4. Make, procure, secrete, or have in his possession a knife,
instrument, tool or other thing not authorized by the

superintendent or sheriff which is capable of causing death or
bodily injury.