William A. Butts v. Commonwealth of Virginia ( 1999 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Bumgardner and Lemons
Argued at Salem, Virginia
WILLIAM A. BUTTS
MEMORANDUM OPINION * BY
v. Record No. 1345-98-3 JUDGE RUDOLPH BUMGARDNER, III
MARCH 9, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF HENRY COUNTY
David V. Williams, Judge
Elwood Earl Sanders, Jr., Appellate Defender
(Public Defender Commission, on briefs), for
appellant.
Daniel J. Munroe, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
The defendant appeals his conviction at a bench trial of
possession of marijuana. He contends the evidence was
insufficient to establish that he had actual possession of the
marijuana. For the following reasons, we affirm.
On appeal we view the evidence in the light most favorable
to the Commonwealth, granting to it all reasonable inferences
fairly deducible therefrom. See Archer v. Commonwealth, 26 Va.
App. 1, 11, 492 S.E.2d 826, 831 (1997). In so doing, we must
discard the evidence of the accused in conflict with that of the
Commonwealth, see Cirios v. Commonwealth, 7 Va. App. 292, 295,
373 S.E.2d 164, 165 (1988), and not substitute our judgment for
that of the fact finder. See Cable v. Commonwealth, 243 Va. 236,
*Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
239, 415 S.E.2d 218, 220 (1992). The trial court's judgment will
not be disturbed on appeal unless plainly wrong or without
evidence to support it. See Josephs v. Commonwealth, 10 Va. App.
87, 99, 390 S.E.2d 491, 497 (1990) (en banc). Finally, the
credibility of the witnesses and the weight to be accorded their
testimony are matters solely for the fact finder who can accept
or reject the testimony in whole or in part. See Bridgeman v.
Commonwealth, 3 Va. App. 523, 528, 351 S.E.2d 598, 601 (1986).
Patrick Henry Correctional Unit officers received
information that the defendant possessed marijuana, so they
performed a shakedown inspection in his dormitory area. Three
officers secured the area and brought the defendant there. The
defendant admitted that the area around his bed contained his
property.
As one officer picked up the defendant’s pillow, he noticed
that the defendant "actually paled." When he started to lay the
pillow down, he testified, "you could see the relief on the
defendant’s face." The officer inspected the pillow again, and
found two baggies of marijuana hidden in the pillowcase. The
defendant admitted that the day before he helped two inmates
package the marijuana which they found in his pillow. He denied
hiding the drugs in his pillow and maintained that he was set up.
Possession may be actual or constructive.
Constructive possession may be established by
"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 the character
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of the substance and that it was subject to
his dominion and control."
Logan v. Commonwealth, 19 Va. App. 437, 444, 452 S.E.2d 364,
368-69 (1994) (en banc) (citations omitted). Cf. Hairston v.
Commonwealth, 5 Va. App. 183, 186, 360 S.E.2d 893, 895 (1987).
Further, "proof that a person is in close proximity to contraband
is a relevant fact that, depending on the circumstances, may tend
to show that . . . the person necessarily knows of the presence,
nature and character of a substance that is found there."
Burchette v. Commonwealth, 15 Va. App. 432, 435, 425 S.E.2d 81,
83 (1992) (citation omitted).
The defendant admitted helping package the marijuana the day
before. When the officer picked up his pillow, his face paled.
When the officer replaced it, he looked relieved. The
defendant’s statement and conduct were sufficient to permit the
fact finder to infer that the defendant knew the drugs were
hidden where the officers found them. See Hairston, 5 Va. App.
at 186, 360 S.E.2d at 895; Jones v. Commonwealth, 23 Va. App. 93,
99-100, 474 S.E.2d 825, 828 (1996).
The defendant also argues that the fact that others had
access to his dormitory area raises an inference of innocence.
This argument is not persuasive. Possession need not be
exclusive. See Archer v. Commonwealth, 225 Va. 416, 418, 303
S.E.2d 863, 863 (1983). Further, the record does not support the
contention that anyone had been in the defendant’s area or had
interfered with it. The defendant admitted that the items in
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this area were his and that he knew the marijuana existed. The
defendant’s hypothesis of innocence must flow from the evidence
itself, not from the imagination of defense counsel. See Spencer
v. Commonwealth, 238 Va. 275, 283-84, 384 S.E.2d 775, 779 (1989),
cert. denied, 493 U.S. 1036 (1990).
Concluding that the evidence is sufficient to permit a
conviction, we affirm.
Affirmed.
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