Marcus Booker Collins v. Commonwealth ( 1995 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judge Annunziata and
Senior Judge Hodges
Argued at Richmond, Virginia
MARCUS BOOKER COLLINS
v. Record No. 1456-94-1 MEMORANDUM OPINION * BY
CHIEF JUDGE NORMAN K. MOON
COMMONWEALTH OF VIRGINIA JULY 18, 1995
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
William F. Rutherford, Judge
Michael J. Woods (Wilcox & Woods, P.C., on brief),
for appellant.
Monica S. McElyea, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
Marcus Booker Collins appeals his conviction of distributing
cocaine in violation of Code § 18.2-248. Collins contends that
his mere presence at the scene where drugs were distributed to an
undercover narcotics detective was insufficient to convict him as
a matter of law. Because the Commonwealth's evidence showed
circumstances linking Collins to the distribution of the cocaine,
other than his presence at the scene of the drug sale, we hold
the evidence was sufficient to convict Collins and affirm the
trial court's decision.
"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." Coleman v. Commonwealth, 226 Va. 31, 53, 307 S.E.2d 864,
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
876 (1983). While the circumstances of time, place, motive,
means and conduct must concur in pointing to the defendant's
guilt beyond a reasonable doubt, not all of the circumstances
must be individually proved beyond a reasonable doubt. Cantrell
v. Commonwealth, 229 Va. 387, 397, 329 S.E.2d 22, 29 (1985).
Inferences to be drawn from the proved facts are within the
province of the fact finder so long as the inferences are
reasonable and justified. Person v. Commonwealth, 10 Va. App.
36, 39, 389 S.E.2d 907, 909 (1990). Further, the credibility of
witnesses and the weight assigned their testimony are matters
exclusively for the fact finder. Lea v. Commonwealth, 16 Va.
App. 300, 304, 429 S.E.2d 477, 479 (1993).
This Court has recognized that "[i]t cannot be reasonably
inferred from the mere presence of the defendant at a street
intersection and the intersection's reputation as a place for
trafficking in drugs that [defendant] was engaged in the illegal
activity of drug distribution." Riley v. Commonwealth, 13 Va.
App. 494, 498, 412 S.E.2d 724, 726-27 (1992); Brown v.
Commonwealth, 15 Va. App. 232, 234, 421 S.E.2d 911, 912 (1992)
(citing Smith v. Commonwealth, 217 Va. 336, 337, 228 S.E.2d 562(1976)). However, we have also noted that where there is other
evidence of criminal conduct in addition to the defendant's
presence in an area reputed for drug activity, the defendant's
presence in such place is probative of his involvement in the
distribution of drugs. Brown, 15 Va. App. at 234, 421 S.E.2d at
913; see also Coe v. Commonwealth, 231 Va. App. 83, 89, 340
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S.E.2d 820, 823 (1986).
In this case, the trial judge could have inferred from the
Commonwealth's circumstantial evidence that Collins was involved
in the distribution of cocaine in the location where the
undercover narcotics officers believed cocaine was being sold.
That evidence showed that Collins, who was with three other men,
used a common hand signal among street drug dealers to attract
the undercover officer's attention and let him know that he had
drugs for sale. In response, the officer made the same gesture,
stopped his car, rolled down his window, and asked them if they
had any drugs. Collins then motioned for the undercover officer
to get off the street and pull into a parking lot. When one of
the other men sold cocaine to the officer in response to the
officer's request, Collins was standing shoulder to shoulder with
the man at the officer's car. Upon being arrested, Collins was
found to be holding two large stashes of cash in his pants
pockets. A trained drug screening dog later indicated the
presence of cocaine residue on the cash discovered on Collins.
The trial judge believed the testimony of the undercover
narcotics officer and did not believe appellant's testimony that
he only approached the officer's car to get a ride or use his car
for transportation. Viewing the evidence, as we must, in the
light most favorable to the Commonwealth, Martin v. Commonwealth,
4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987), we hold the
evidence was sufficient to convict Collins.
Affirmed.
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