Opinion
Record No. 1951-93-3
Decided: February 7, 1995
FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG, Richard S. Miller, Judge
James Hingeley (Office of the Public Defender, on brief), for appellant.
Eugene Murphy, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.
Present: Chief Judge Moon, Judges Barrow and Coleman
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
Appellant, George Melvin Rucker (Rucker), appeals from his conviction on the charge of possession of cocaine with the intent to distribute. On appeal, Rucker contends that the evidence was insufficient to support the conviction. We disagree and affirm.
Rucker argues that the Commonwealth failed to prove that he possessed any of the cocaine found under the van, or, if he possessed any of it, he did not possess an amount of the cocaine sufficient to prove an intent to distribute. Rucker argues that his case is controlled by Collins v. Commonwealth, 13 Va. App. 177, 409 S.E.2d 175 (1991), but he fails to meaningfully distinguish his case from Collins, wherein this Court affirmed the conviction of the defendant on very similar facts.
Rucker argues his case can be distinguished from Collins in two respects: 1) that there were no other individuals present when the cocaine was found under Collins's vehicle as there were in his case; and 2) that unlike Collins, Rucker did not own the vehicle under which the cocaine was found. Neither of these distinctions dictates a different result in this cases.
First, Investigator Dance was conducting surveillance on Horsley, Haythe, and Rucker in a limited area of operation; he had an unobstructed view of all that was before him and was aided by binoculars. His surveillance revealed that Horsley only gave something to Rucker and that only Rucker made a throwing motion under the van and kicked the ground under the van as if to hide something. Dance's testimony supports the inference that no one other than Rucker threw anything under the van after the police officers' presence became known.
Second, the fact that Rucker did not own or control the vehicle under which the cocaine was found does not render the evidence insufficient to prove that he possessed the cocaine. Rucker's contention that the cocaine may have already been under the van and/or that Horsley may have moved the van to the space closer to the barbershop to conceal the cocaine that was left on the ground is unlikely, and it defies the logic of Collins, wherein this Court commented upon the trial judge's observation that cocaine was "something of significant value and not something that one is likely to have . . . carelessly left in the area." The jury was entitled to weigh the evidence to determine whether it was, in fact, Rucker, and not one of the other two men or someone else, who put the crack-cocaine under the van just prior to its recovery.
Under Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975), when the evidence is viewed in the light most favorable to the Commonwealth, giving it all reasonable inferences fairly deducible therefrom, it is sufficient to support the conviction.
Affirmed.