Garrett E. Graves v. Commonwealth of Virginia ( 1999 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Benton, Coleman,
Willis, Elder, Bray, Annunziata, Overton, Bumgardner
and Lemons
Argued at Richmond, Virginia
GARRETT E. GRAVES
MEMORANDUM OPINION * BY
v. Record No. 2046-97-3 JUDGE NELSON T. OVERTON
JANUARY 12, 1999
COMMONWEALTH OF VIRGINIA
UPON A REHEARING EN BANC
FROM THE CIRCUIT COURT OF HALIFAX COUNTY
William L. Wellons, Judge
Buddy A. Ward, Public Defender (Office of the
Public Defender, on brief), for appellant.
Robert H. Anderson, III, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Garrett Graves (defendant) was convicted of possession of a
controlled substance, in violation of Code § 18.2-250, by the
Circuit Court of Halifax County. He appealed, contending that
the evidence was insufficient to support his conviction. A panel
of this Court held the evidence to be insufficient and reversed
the judgment of the trial court. See Graves v. Commonwealth,
Record No. 2046-97-2 (Va. Ct. App. June 16, 1998). We stayed the
mandate of that decision and granted a rehearing en banc. Upon
rehearing en banc, we affirm the judgment of the trial court.
"An appellate court must discard all evidence of the accused
that conflicts with that of the Commonwealth and regard as true
*
Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
all credible evidence favorable to the Commonwealth and all fair
inferences reasonably deducible therefrom." Lea v. Commonwealth,
16 Va. App. 300, 303, 429 S.E.2d 477, 479 (1993). So viewed, the
evidence adduced at trial revealed that on December 6, 1996,
Officer Keith Tribble of the Halifax County Sheriff's Department
stopped a car driven by defendant because the car had an
inoperable headlight. Defendant was the only occupant of the
vehicle. Officer Tribble talked with defendant, read him his
Miranda warnings and arrested defendant for driving while
intoxicated and without an operator's license.
Defendant told Officer Tribble that the car belonged to
defendant, he had cleaned the car earlier that evening and he
previously had two passengers in the car. The car, however, was
registered to defendant's sister. Pursuant to the arrest,
Officer Tribble searched the car and found a bag which contained
a perforated beer can. The bag was located on the floor of the
front passenger's side of the car. The beer can was modified so
that it could be used to smoke cocaine and, in fact, cocaine
residue was visible on the can. A laboratory analysis later
confirmed the presence of cocaine. Officer Tribble also
retrieved several small, white chunks from the center console of
the car. A laboratory confirmed that these were cocaine. After
the car was towed to the police station an inventory search was
performed which uncovered another can underneath the driver's
front seat, modified in a similar manner to the first.
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The decision of the trial court shall be affirmed unless it
is plainly wrong or without support in the evidence. See Brown
v. Commonwealth, 5 Va. App. 489, 491, 360 S.E.2d 719, 721 (1988).
For a conviction of possession of a controlled substance to
stand, the Commonwealth needed to prove defendant either actually
or constructively possessed the substance. See White v.
Commonwealth, 24 Va. App. 446, 452, 482 S.E.2d 876, 879 (1997).
Because the Commonwealth concedes that the conviction is grounded
in a constructive possession theory, "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."
Powers v. Commonwealth, 227 Va. 474, 476, 316 S.E.2d 739, 740
(1984). The fact that the cocaine was found in a vehicle
occupied by defendant does not create the presumption he
possessed the drug, but is only one of the circumstances which we
must consider. See Code § 18.2-250; Hardy v. Commonwealth, 17
Va. App. 677, 682, 440 S.E.2d 434, 437 (1994).
We hold that the evidence presented at trial, taken in the
proper light of appellate review, supports the conviction.
Defendant was the sole occupant of the vehicle. The only
evidence to the contrary comes from his own statements, which the
trial court was entitled to find incredible. Cocaine and drug
use paraphernalia were found in the car. The cocaine rocks were
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in plain sight and within inches of defendant's seat when he was
stopped. Finally, defendant testified he cleaned the car earlier
in the evening, bolstering the evidence that he was familiar with
the incriminating items contained therein.
In cases such as this, where the Commonwealth lacks direct
evidence of guilt and must prove the case by circumstantial
evidence, the facts must exclude "every reasonable hypothesis of
innocence." Tucker v. Commonwealth, 18 Va. App. 141, 143, 442
S.E.2d 419, 421 (1994). Yet such hypotheses must flow from the
evidence and not result from speculation by the parties or the
court. See Hamilton v. Commonwealth, 16 Va. App. 751, 755, 433
S.E.2d 27, 29 (1993). When such a hypothesis has been rejected
by the trial court, as it was in this case, that rejection is a
finding of fact, binding on appeal. See Brown, 5 Va. App. at
491, 360 S.E.2d at 721. The hypothesis that a previous passenger
left the cocaine in the car without defendant's knowledge was
rejected by the trial court, not supported by the evidence, and
we may not resurrect it on appeal. All the facts cognizable by
this Court fully support the inference that defendant controlled
the car he was driving and knew of the cocaine and cocaine
smoking devices contained therein.
Because the evidence was sufficient to support defendant's
conviction, the conviction is affirmed.
Affirmed.
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Elder, J., with whom Benton, J., joins, dissenting.
I respectfully dissent for the reasons stated in the
memorandum opinion of the panel. See Graves v. Commonwealth,
Record No. 2046-97-2 (Va. Ct. App. June 16, 1998).
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