Opinion
Record No. 1775-92-1
Decided: July 19, 1994
FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE, E. Preston Grissom, Judge
Affirmed and remanded.
William E. Buyrn (Heather L. Buyrn; Buyrn Buyrn, on brief), for appellant.
Richard B. Smith, Assistant Attorney General (Stephen D. Rosenthal, Attorney General, on brief), for appellee.
Present: Chief Judge Moon, Judges Coleman and Fitzpatrick
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
Gerald Francis Rowland (appellant) was convicted in a bench trial of possession of cocaine in violation of Code Sec. 18.2-250. On appeal, he argues that the evidence was insufficient to sustain his conviction. Finding the evidence sufficient, we affirm the conviction, but remand the case to correct a clerical error in the trial court's final sentencing order.
The final sentencing order signed on October 30, 1992, incorrectly recites that appellant was convicted of possession of cocaine with intent to distribute. (App. 69). Appellant was in fact convicted of cocaine possession, as correctly stated in the order of August 13, 1992. (App. 66).
BACKGROUND
On December 23, 1991, appellant was arrested pursuant to a warrant issued in an unrelated case. At the time of arrest, Officer Kyttle ordered appellant to empty his pockets and conducted a "pat down" search of his outer clothing. Finding no weapons or drugs, Officer Kyttle handcuffed appellant's hands behind his back and placed him in the backseat of her police vehicle. She then transported appellant to the jail and escorted him inside, leaving her car parked and locked.
Immediately upon returning to her car, Officer Kyttle conducted a routine search of the vehicle and found a package in the backseat containing several small "baggies" of cocaine. Prior to appellant, only one other person had been in the backseat of the vehicle on that day, but Officer Kyttle had searched the backseat immediately after that person's departure. The baggies were not present at that time. At all other times on December 23, 1991, Officer Kyttle had exclusive control of and access to her assigned police vehicle.
SUFFICIENCY OF THE EVIDENCE
Appellant was convicted on a theory of constructive possession.
"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 citations omitted). On appeal, we view the evidence "in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom. The judgment of a trial court . . . will not be disturbed on appeal unless it is plainly wrong or without evidence to support it." Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987).
The Commonwealth's evidence consists of circumstantial evidence; however, it is well established that "[c]ircumstantial 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." Coleman v. Commonwealth, 226 Va. 31, 53, 307 S.E.2d 864, 876 (1983), cert. denied, 465 U.S. 1109 (1984); see also Johnson v. Commonwealth, 2 Va. App. 598, 604-05, 347 S.E.2d 163, 167 (1986). In a circumstantial evidence case, " 'to establish guilt beyond a reasonable doubt[,] all necessary circumstances proved must be consistent with guilt and inconsistent with innocence. They must overcome the presumption of innocence and exclude all reasonable conclusions inconsistent with that of guilt.' " Higginbotham v. Commonwealth, 216 Va. 349, 352-53, 218 S.E.2d 534, 537 (1975) (quoting LaPrade v. Commonwealth, 191 Va. 410, 418, 61 S.E.2d 313, 316 (1950)).
The evidence proved that the police car was free of drugs before appellant was present. Furthermore, appellant was the only occupant in the backseat of the vehicle where the drugs were found, and the drugs were discovered immediately after he had been in the car. The arresting officer was the only other person with access to the inside of the police vehicle. While mere proximity to drugs is insufficient to establish possession, and occupancy of a vehicle in which drugs are found does not give rise to a presumption of possession, Joseph v. Commonwealth, 10 Va. App. 87, 100, 390 S.E.2d 491, 498 (1990) (en banc) (citations omitted), these factors, in conjunction with the additional evidence that the vehicle was searched prior to appellant's occupancy, "exclude all reasonable conclusions inconsistent with that of guilt." Here, the "combined force of many concurrent and related circumstances, each insufficient in itself, [lead] a reasonable mind irresistibly to [the conclusion that appellant constructively possessed the cocaine found in the police car]." Stamper v. Commonwealth, 220 Va. 260, 273, 257 S.E.2d 808, 818 (1979), cert. denied, 445 U.S. 972 (1980) (quoting Karnes v. Commonwealth, 125 Va. 758, 764, 99 S.E. 562, 564 (1919)); see also Glover v. Commonwealth, 3 Va. App. 152, 348 S.E.2d 434 (1986), aff'd, 236 Va. 1, 372 S.E.2d 134 (1988) (upholding conviction under nearly identical factual circumstances and grounds for appeal).
Appellant argues that all other reasonable hypotheses were not eliminated, specifically the possibility that a previous occupant of the police vehicle dropped the cocaine in the backseat, and the arresting officer's search of her vehicle prior to appellant's occupancy was incomplete. At trial, appellant produced no evidence to support this hypothesis. In Virginia, it is well settled that "[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) (citing Cook v. Commonwealth, 226 Va. 427, 433, 309 S.E.2d 325, 329 (1983)).
Appellant further argues that the trial judge abused his discretion by accepting Officer Kyttle's testimony and rejecting his denial of ownership of the cocaine. The duties of the trier of fact include resolving conflicts in the testimony and weighing the evidence. Jackson v. Virginia, 443 U.S. 307, 319 (1979). By accepting the arresting officer's version of the facts, the trial judge did not abuse his discretion, but simply indicated a disbelief of appellant's testimony. Bridgeman v. Commonwealth, 3 Va. App. 523, 528, 351 S.E.2d 598, 601-02 (1986). See Fordham v. Commonwealth, 13 Va. App. 235, 239, 409 S.E.2d 829, 831 (1991). Accordingly, we cannot say that the verdict was plainly wrong or without evidence to support it.
For the reasons set forth above, we affirm the conviction, but remand the case to correct a clerical error in the trial court's final sentencing order.
Affirmed and remanded.