Terry Darnell Chism v. Commonwealth ( 2002 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, Felton and Kelsey
Argued at Richmond, Virginia
TERRY DARNELL CHISM
MEMORANDUM OPINION * BY
v. Record No. 2892-01-2 JUDGE D. ARTHUR KELSEY
DECEMBER 17, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF HALIFAX COUNTY
William L. Wellons, Judge
Michael L. Freshour, Assistant Public
Defender, for appellant.
John H. McLees, Senior Assistant Attorney
General (Jerry W. Kilgore, Attorney General;
Susan M. Harris, Assistant Attorney General,
on brief), for appellee.
The appellant, Terry Darnell Chism, claims that the trial
court lacked sufficient evidence to convict him for possession
of cocaine in violation of Code § 18.2-250 and simultaneous
possession of cocaine and firearms in violation of Code
§ 18.2-308.4(A). The trial court erred, Chism contends, by
finding that he knew of the presence and character of cocaine
residue found on digital scales within his house. Without that
predicate finding, Chism reasons, the firearm charge also must
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
be dismissed. Because we find no error in the trial court's
decision, we affirm Chism's conviction on both charges.
I.
When examining a challenge to the sufficiency of the
evidence on appeal, we must review the evidence "'in the light
most favorable to the Commonwealth'" and grant it the benefit of
any reasonable inferences. Ward v. Commonwealth, 264 Va. 648,
654, 570 S.E.2d 827, 831 (2002) (quoting Higginbotham v.
Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975)).
That principle requires us to "'discard the evidence of the
accused'" which conflicts, either directly or inferentially,
with the Commonwealth's evidence. Wactor v. Commonwealth, 38
Va. App. 375, 380, 564 S.E.2d 160, 162 (2002) (quoting Watkins
v. Commonwealth, 26 Va. App. 335, 348, 494 S.E.2d 859, 866
(1998)). We view the facts of this case, therefore, through
this evidentiary prism.
In response to a concerned citizen's tip that Terry Darnell
Chism was selling crack cocaine from his house, Deputy Sheldon
Jennings of the Halifax County Sheriff's Office visited Chism's
residence on December 9, 2000. Deputy Jennings informed Chism
of the reason for his visit and asked if he could search Chism's
home for drugs. Chism consented and allowed Jennings into his
trailer.
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Inside, Jennings found a set of Tonita digital scales in a
kitchen cabinet. Chism acknowledged that he owned the scales
and mentioned that he planned to sell them. Jennings, knowing
that cocaine distributors commonly used similar scales, removed
the scales from the cabinet to inspect them. Visibly apparent
on the face of the scales, Jennings noticed residue of an
off-white substance with an appearance "consistent with crack
cocaine." In a trashbag in the kitchen, Jennings also
discovered what appeared to be partially smoked marijuana.
Jennings confiscated the scales and the evidence that he
believed to be marijuana.
Moving his search to the trailer's den, Jennings noticed
additional marijuana plainly visible on top of Chism's
entertainment center. Jennings then found a rifle in the den
and a second rifle in Chism's bedroom. When questioned about
these items, Chism claimed that he did not own the marijuana,
but admitted using the rifles for "target shooting."
At trial, the Commonwealth introduced into evidence a
certificate of analysis from the Virginia Division of Forensic
Science confirming that the digital scales contained measurable
cocaine residue. Officer Jennings also testified that, based
upon his experience as a member of a drug enforcement task
force, possession of Tonita digital scales was "consistent with
the distribution of cocaine."
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Following the presentation of evidence at trial, the
defense moved to strike the evidence, claiming that Chism did
not know the nature and character of the residue on his scales.
The trial court denied the motion and sentenced Chism to five
years in prison for possession of cocaine and five years for
possession of a firearm while possessing cocaine. The court
suspended all five years of Chism's sentence for possession of
cocaine. On appeal, Chism contends that the trial court lacked
sufficient evidence upon which to convict him for possession of
cocaine and, for that same reason, had no basis to convict him
of simultaneous possession of cocaine and firearms.
II.
Under settled principles, we "presume the judgment of the
trial court to be correct" and reverse on sufficiency grounds
only if the trial court's decision is "plainly wrong or without
evidence to support it." Davis v. Commonwealth, 39 Va. App. 96,
99, 570 S.E.2d 875, 876-77 (2002) (citations omitted); see also
McGee v. Commonwealth, 25 Va. App. 193, 197-98, 487 S.E.2d 259,
261 (1997) (en banc). In Virginia, an appellate court "is not
permitted to substitute its own judgment for that of the finder of
fact, even if the appellate court might have reached a different
conclusion." Commonwealth v. Presley, 256 Va. 465, 466, 507
S.E.2d 72, 72 (1998); see also Harris v. Commonwealth, 38
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Va. App. 680, 691, 568 S.E.2d 385, 390 (2002). 1 Thus, the
judgment of a "trial court sitting without a jury" advances to
the appellate court with "the same weight as a jury verdict."
Tarpley v. Commonwealth, 261 Va. 251, 256, 542 S.E.2d 761, 763
(2001) (citation omitted); Carter v. Commonwealth, 38 Va. App.
116, 119, 562 S.E.2d 331, 332 (2002).
In criminal cases, due process requires the prosecution to
prove the defendant's guilt "beyond a reasonable doubt." Fiore
v. White, 531 U.S. 225, 228-29 (2001). This essential safeguard
of liberty, as stringent as it is, does not ignore the axiom
that "'[e]vidence is seldom sufficient to establish any fact as
demonstrated and beyond all doubt.'" Harris v. Commonwealth,
206 Va. 882, 887, 147 S.E.2d 88, 92 (1966) (quoting Toler v.
Commonwealth, 188 Va. 774, 780, 51 S.E.2d 210, 213 (1949)).
Even so, mere suspicion of criminality coupled with a bare
possibility of guilt can never suffice.
When the Commonwealth relies on circumstantial evidence,
the reasonable doubt standard requires proof "sufficiently
convincing to exclude every reasonable hypothesis except that of
guilt." Coleman v. Commonwealth, 226 Va. 31, 53, 307 S.E.2d
1
"This is so because the judge, as fact finder, sees and
hears the witnesses and, therefore, is better able to determine
their credibility and weigh their testimony." Jones v. Eley,
256 Va. 198, 201, 501 S.E.2d 405, 406 (1998) (citing Tuomala v.
Regent University, 252 Va. 368, 375, 477 S.E.2d 501, 505-06
(1996)).
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864, 876 (1983). This construct has two important subsidiary
rules. First, only a hypothesis of innocence flowing "from the
evidence, not those that spring from the imagination of the
defendant" must be considered. Stevens v. Commonwealth, 38
Va. App. 528, 535, 567 S.E.2d 537, 540 (2002) (citation
omitted). Second, whether an "alternative hypothesis of
innocence is reasonable is a question of fact and, therefore, is
binding on appeal unless plainly wrong." Id.; Harris, 38
Va. App. at, 691, 568 S.E.2d at 391; Archer v. Commonwealth, 26
Va. App. 1, 12-13, 492 S.E.2d 826, 832 (1997). In other words,
only when a fact finder "arbitrarily" ignores the reasonableness
of the innocence hypothesis should the decision be overturned on
appeal. Stevens, 38 Va. App. at 535, 567 S.E.2d at 540
(citation omitted).
III.
To convict an individual of illegally possessing drugs, the
Commonwealth must establish that the defendant possessed an
illicit substance and appreciated its illegal "nature and
character." Birdsong v. Commonwealth, 37 Va. App. 603, 607, 560
S.E.2d 468, 470 (2002); see Ritter v. Commonwealth, 210 Va. 732,
741, 173 S.E.2d 799, 805 (1970). The Commonwealth can prove
constructive possession with "'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
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and character of the substance and that it was subject to his
dominion and control.'" Birdsong, 37 Va. App. at 607-08, 560
S.E.2d at 470 (quoting Glasco v. Commonwealth, 26 Va. App. 763,
774, 497 S.E.2d 150, 155 (1998)); see also Haskins v.
Commonwealth, 31 Va. App. 145, 150, 521 S.E.2d 777, 779 (1999)
(citations omitted). A suspect's actual possession of drugs,
however, permits the inference that he is aware of its illegal
nature and character. See Josephs v. Commonwealth, 10 Va. App.
87, 101, 390 S.E.2d 491, 498-99 (1990) (en banc) (citation
omitted); Armstrong v. Commonwealth, 29 Va. App. 102, 114, 510
S.E.2d 247, 252-53 (1999).
Applied to this case, these principles confirm that the
Commonwealth presented sufficient evidence to convict Chism.
Officer Jennings discovered Tonita digital scales in Chism's
kitchen. Knowing that drug dealers routinely used similar
scales, Jennings removed the scales from the kitchen shelf to
inspect them. He noticed a white residue plainly appearing on
the face of the scales, which he suspected to be cocaine. Chism
admitted owning the scales. From the fact that cocaine residue
was visibly apparent to Jennings immediately upon examination,
the trial court could reasonably infer that Chism, the owner and
possessor of the scales, also knew of the residue's presence.
Despite direct evidence of Chism's admitted ownership of
the scales and the visible cocaine residue on them, Chism
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characterizes the case against him as one resting solely on
circumstantial evidence. We believe this view "mischaracterizes
the Commonwealth's evidence." Floyd v. Commonwealth, 31
Va. App. 193, 198, 522 S.E.2d 382, 384 (1999). "Direct evidence
is evidence that, if believed, resolves a matter in issue." Id.
"Conversely, circumstantial evidence, even if accepted as true,
requires additional reasoning to accept the proposition to which
the evidence is directed." Id. (citing McCormick On Evidence
§ 185 at 339 (4th ed. 1992)). The incriminating evidence in
this case —— visible cocaine residue on digital scales
admittedly owned and possessed by Chism —— requires little, if
any, "additional reasoning," id., to lead to the conclusion
reached by the trial court.
In any event, even if the Commonwealth's case rested solely
on circumstantial evidence, we still would not conclude that the
trial court plainly erred in convicting Chism. Chism's attempt
at a reasonable hypothesis of innocence (buying cocaine-dusted
scales solely for after-market resale) fell short, in the
estimation of the fact finder, of being a reasonable explanation
of the true facts. That result is hardly surprising given the
fact that (i) digital scales of this type are "consistent with
the distribution of cocaine," 2 (ii) other drugs were found in
2
Indeed, the presence of digital scales can be a factor in
finding a person guilty of possession of cocaine with intent to
distribute. See, e.g., McCain v. Commonwealth, 261 Va. 483,
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plain view inside Chism's residence, and (iii) it is simply
unreasonable to believe Chism did not see the cocaine residue
plainly visible on the scales.
Because reasonable jurists could disagree on the
evidentiary weight of these facts, as well as the inferences
that follow from them, we cannot conclude the trial judge acted
arbitrarily in rejecting Chism's proffered hypothesis. As a
fact finder, the trial judge had the discretion to reject
Chism's self-serving explanation and conclude that, by giving
it, Chism was simply "lying to conceal his guilt." Shackleford
v. Commonwealth, 262 Va. 196, 209, 547 S.E.2d 899, 907 (2001);
Dowden v. Commonwealth, 260 Va. 459, 469, 536 S.E.2d 437, 442
(2000); Mughrabi v. Commonwealth, 38 Va. App. 538, 548, 567
S.E.2d 542, 546 (2002).
IV.
Whether measured in terms of direct or circumstantial
evidence, the Commonwealth's case against Chism provided a
sufficient basis for conviction on the cocaine possession and
493, 545 S.E.2d 541, 547 (2001); White v. Commonwealth, 25
Va. App. 662, 668, 492 S.E.2d 451, 454 (1997) ("White's
possession of an electronic scale concealed in his car and the
crack cocaine shavings also found in the car provide a
sufficient basis to support an inference that White was engaged
in cutting up and weighing cocaine in his car.").
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simultaneous possession of cocaine and firearms. As a result,
we affirm the trial court's decision on both charges.
Affirmed.
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