Opinion
Record No. 1655-91-1
January 19, 1993
FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE RUSSELL I. TOWNSEND, JR., JUDGE
A. Robinson Winn for appellant.
Robert B. Condon, Assistant Attorney General (Mary Sue Terry, Attorney General, on brief), for appellee.
Present: Judges Baker, Barrow and Bray
Argued at Norfolk, Virginia
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Reginald Hines Williams (appellant) appeals his bench trial conviction by the Circuit Court of the City of Chesapeake (trial court) for one count of possession of cocaine. The sole issue for our consideration is whether the evidence was sufficient to sustain the conviction.
Upon familiar principles, we view the evidence "in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom." Evans v. Commonwealth, 215 Va. 609, 612, 212 S.E.2d 268, 271 (1975). Stated in that light, the record discloses that on December 17, 1990, Officer Raglan of the Chesapeake Police Department commenced his duty at approximately 3:45 p.m., at which time he took possession of a marked vehicle and "checked the vehicle over to make sure there wasn't anything in it, weapons or anything, trash." He specifically searched the floorboards and the metal brackets on the floor and did not find anything in the car.
Raglan was dispatched to the Wilmund Place Apartments to assist the fire department with a gas leak. Upon arrival, the battalion chief reported that gun shots, coming from a blue car, were being fired to the left of the building. Thereafter, Raglan got a call from the dispatcher with the same information.
Raglan observed a blue car that matched the descriptions given. He stopped the car and asked the driver (appellant) for permission to search the car and for appellant's driver's license. Appellant agreed to the search but was unable to produce his driver's license. The car was searched and no weapons were found.
Raglan thereafter escorted appellant to his cruiser so he could run a check on appellant's driver's license. Appellant was patted down for weapons. None were found. Appellant was then placed in the back of the cruiser without handcuffs. The check revealed that appellant's license was suspended. Raglan went to the back of the cruiser to handcuff appellant. Appellant had to move his legs and shift his body around so that he could be handcuffed. When he moved his body, Raglan noticed three foil wrappers that "looked like gum wrappers, and a white powdery substance in the mounted bracket to the police shield that separates the front and back seat." The bracket was located on the floor. The substance was tested and came back positive for cocaine. Thereafter, Raglan secured a warrant for possession of cocaine.
Raglan testified that he got the call for the gas leak around 8:00 p.m. and that no one had sat in the back seat of the cruiser from the time he checked it (at approximately 3:45 p.m.) until appellant was placed there.
"The judgment of a trial court sitting without a jury is entitled to the same weight as a jury verdict and will not be set aside unless it appears from the evidence that the judgment is plainly wrong or without evidence to support it." Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987) (citing Code § 8.01-680).
"In determining whether a defendant constructively possessed drugs, the defendant's proximity to the drugs and his occupancy of the vehicle must also be considered. Although mere proximity to the drugs is insufficient to establish possession, and occupancy of the vehicle does not give rise to a presumption of possession, Code § 18.2-250, both are factors which may be considered in determining whether a defendant possessed drugs."Josephs v. Commonwealth, 10 Va. App. 87, 100, 390 S.E.2d 491, 498 (1990) (en banc) (citations omitted). The evidence showed that Raglan conducted a thorough search of his police cruiser at the beginning of his shift; that no one but appellant was placed in the back of the cruiser that day; and that when appellant shifted his body so that Raglan could handcuff him, the drugs were immediately found on the floorboard of the cruiser. We find this evidence sufficient to sustain the conviction. For the reasons stated, we affirm.
Affirmed.