Eric Lamont Payne v. Commonwealth ( 2003 )


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  •                                COURT OF APPEALS OF VIRGINIA
    Present: Chief Judge Fitzpatrick, Judges Bumgardner and Frank
    Argued at Salem, Virginia
    ERIC LAMONT PAYNE
    MEMORANDUM OPINION∗ BY
    v.     Record No. 3339-02-3                             CHIEF JUDGE JOHANNA L. FITZPATRICK
    DECEMBER 2, 2003
    COMMONWEALTH OF VIRGINIA
    FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG
    J. Leyburn Mosby, Jr., Judge
    Herbert E. Taylor, III (Herbert E. Taylor, III, P.C., on brief),
    for appellant.
    Jennifer R. Franklin, Assistant Attorney General (Jerry W. Kilgore,
    Attorney General, on brief), for appellee.
    Eric Lamont Payne (appellant) contends the trial court erred in denying his motion to
    strike his charges of possession of cocaine under Code § 18.2-250, possession of a firearm after
    having been found guilty of a felony under Code § 18.2-308.2(ii), possession of a firearm while
    in possession of cocaine under Code § 18.2-308.4, and obstruction of justice under Code
    § 18.2-460(A). He argues that the evidence was insufficient to prove him guilty beyond a
    reasonable doubt. Finding no error, we affirm.
    I. BACKGROUND
    “When the sufficiency of the evidence is challenged on appeal, we determine whether the
    evidence, viewed in the light most favorable to the prevailing party, the Commonwealth, and the
    reasonable inferences fairly deducible from that evidence support each and every element of the
    charged offense.” Haskins v. Commonwealth, 
    31 Va. App. 145
    , 149-50, 
    521 S.E.2d 777
    , 779
    ∗
    Pursuant to Code § 17.1-413, this opinion is not designated for publication.
    (1999). “In so doing, we must discard the evidence of the accused in conflict with that of the
    Commonwealth, and regard as true all the credible evidence favorable to the Commonwealth and
    all fair inferences that may be drawn therefrom.” Watkins v. Commonwealth, 
    26 Va. App. 335
    ,
    348, 
    494 S.E.2d 859
    , 866 (1998).
    So viewed, the evidence established that on January 23, 2002, Lynchburg Police
    Investigator Saxton (Saxton) received a call at approximately 5:10 p.m. from a reliable
    confidential informant, who stated that he had seen appellant in possession of cocaine. The
    informant described appellant’s appearance in detail. Saxton and other members of the
    Vice/Narcotics unit went to the location near 11th and Taylor Streets where appellant had been
    seen. Investigator Gauthier (Gauthier) was in an unmarked vehicle with Saxton, who was
    dressed in jeans and a T-shirt, and had his badge displayed on a chain around his neck. The
    other responding officers were in unmarked cars but were wearing T-shirts that stated “Police” in
    large yellow letters along the front and back and had a badge displayed.
    Tina Mitchell (Mitchell), who lived at 1101 Taylor Street, returned home from work at
    about 4:30 p.m. Shortly thereafter, she left her house to go to the corner store with her
    boyfriend. Appellant, a friend of her son’s, was standing on the landing in front of her house.
    He was not allowed in the house when Mitchell was out. Mitchell testified that when she leaves
    the home she uses the front door and returns through the back door, and usually keeps a rug
    rolled up against the back door to prevent the cold from entering her home. She stated that when
    she left the house there was nothing rolled up inside the rug and there was no cocaine or debris
    near her back door. She also testified that she kept a bucket under the kitchen table to use when
    she scrubbed floors and that when she left the house there was no gun underneath her kitchen
    table or in the bucket.
    -2-
    After Mitchell left for the store, Saxton approached the Taylor Street area. When he was
    approximately a half block away from Mitchell’s house, Saxton saw a person fitting the
    description of Eric Payne given by the informant, standing on the landing in front of Mitchell’s
    house. As the other investigators pulled into Mitchell’s block of Taylor Street, Payne ran into
    Mitchell’s house. Saxton and Gauthier continued up 11th Street and approached the rear of the
    building.
    When the officers arrived at the back door, appellant opened the door from the inside.
    Saxton and Gauthier announced that they were police officers, and appellant immediately shut
    the door. Gauthier grabbed the screen door to open it, and Saxton opened the main door. Saxton
    saw appellant walk from the kitchen, and step into the hallway, which he described as
    approximately three by six feet in diameter. He yelled to appellant that he was a police officer
    and to get on the ground. When appellant did not obey the command, Saxton grabbed his shirt
    and a struggle ensued. When Saxton succeeded in getting appellant to the ground, appellant’s
    hands were underneath his body. Saxton repeatedly told appellant to get his hands out of his
    jacket, and finally had to force appellant’s hands behind his back and handcuff him. As Saxton
    picked appellant up from the ground, he observed twenty-three plastic baggies with an off-white
    substance in them lying on the floor around them.
    Saxton photographed the baggies and searched the area. In the kitchen, Saxton found a
    silver semi-automatic handgun in a bucket under the table, and found marijuana in appellant’s
    pocket. During an interview with police, appellant first denied that the gun found in the kitchen
    belonged to him, but later admitted to police that the gun belonged to him and that he placed it
    there that day.
    The trial court found appellant guilty of possession of a firearm after being convicted of a
    felony, possession of a firearm while in possession of cocaine, possession of cocaine, possession
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    of marijuana, and misdemeanor obstruction of justice.1 The trial court sentenced appellant to
    serve eleven years and twenty-four months, with five years and three months suspended, and
    ordered that the firearm convictions be served concurrently.
    II. ANALYSIS
    Circumstantial evidence may establish the elements of a crime, provided it excludes
    every reasonable hypothesis of innocence. See, e.g., Tucker v. Commonwealth, 
    18 Va. App. 141
    , 143, 
    442 S.E.2d 419
    , 420 (1994). “The statement that circumstantial evidence must exclude
    every reasonable theory of innocence is simply another way of stating that the Commonwealth
    has the burden of proof beyond a reasonable doubt.” Commonwealth v. Hudson, 
    265 Va. 505
    ,
    513, 
    578 S.E.2d 781
    , 785 (2003). This Court must determine “not whether ‘there is some
    evidence to support’” appellant’s hypothesis of innocence, but, rather, “whether a reasonable
    [fact finder], upon consideration of all the evidence, could have rejected [appellant’s] theories
    . . . and found him guilty . . . beyond a reasonable doubt.” 
    Id.
     Whether a hypothesis of
    innocence is reasonable is a question of fact, see Cantrell v. Commonwealth, 
    7 Va. App. 269
    ,
    290, 
    373 S.E.2d 328
    , 339 (1988), and a finding by the trial court is binding on appeal unless
    plainly wrong, see Glasco v. Commonwealth, 
    26 Va. App. 763
    , 774, 
    497 S.E.2d 150
    , 155 (1998).
    1
    A grand jury indicted appellant on June 3, 2002 for felony statutory burglary under
    Code § 18.2-91, possession of a firearm by a convicted felon under Code § 18.2-308.2,
    distribution of or possession with intent to distribute controlled substances on or near a school
    under Code § 18.2-255.2, possession of a firearm while in possession of a Schedule I or II
    controlled substance under Code §§ 18.2-308.4 and 18.2-10, obstructing justice under Code
    § 18.2-460(C), misdemeanor possession of marijuana under Code § 18.2-250.1, and felony
    possession of cocaine with intent to distribute under Code § 18.2-248.
    Appellant pled guilty to the misdemeanor possession of marijuana charge and not guilty
    to the felonies. The trial court granted appellant’s motion to strike the statutory burglary and
    possession of cocaine within one thousand feet of a school charges, and reduced the charge of
    obstruction of justice from a felony to a misdemeanor, finding that the Commonwealth proved
    obstruction under Code § 18.2-460(A) without meeting the additional requirements of
    subsection (C). The court also reduced the possession of cocaine with intent to distribute charge
    to simple possession of cocaine.
    -4-
    “To convict a defendant of illegal possession of drugs, the Commonwealth must prove
    that the defendant was aware of the presence and character of the drugs, and that he intentionally
    and consciously possessed them.” Andrews v. Commonwealth, 
    216 Va. 179
    , 182, 
    217 S.E.2d 812
    , 814 (1975).
    Additionally, proof of actual possession is not required; proof of
    constructive possession will suffice. Constructive possession may
    be established when there are acts, statements, or conduct of the
    accused or other facts or circumstances which tend to show that the
    accused was aware of both the presence and character of the
    substance and that it was subject to his dominion and control.
    Walton v. Commonwealth, 
    255 Va. 422
    , 426, 
    497 S.E.2d 869
    , 872 (1998) (internal quotations
    and citations omitted). “While mere proximity to contraband is insufficient to establish
    possession . . . ,” it is a factor “to be considered by the jury with other evidence in determining
    whether a defendant constructively possessed drugs.” Lane v. Commonwealth, 
    223 Va. 713
    ,
    716, 
    292 S.E.2d 358
    , 360 (1982).
    In this case, credible evidence supports the trial court’s judgment that appellant possessed
    the cocaine. When approached by the police, appellant ran into the Mitchell house. Despite the
    police identifying themselves, appellant tried to flee and had to be wrestled to the floor. After
    the struggle there were twenty-three baggies of cocaine scattered nearby. Mitchell testified that
    there was no cocaine in the hall before she left for the store, only five minutes before she
    returned. Although appellant contends that the Commonwealth failed to exclude the hypothesis
    that the cocaine was in the rug before appellant entered the home, no evidence substantiates that
    theory. The Commonwealth need only exclude hypotheses that flow from the evidence itself,
    not from the imagination of the defendant. See Cook v. Commonwealth, 
    226 Va. 427
    , 433, 
    309 S.E.2d 325
    , 327 (1983). The evidence does not support the hypothesis that someone other than
    the appellant put cocaine in the rug. We therefore hold that sufficient evidence supports the trial
    court’s finding that appellant possessed cocaine.
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    Additionally, the evidence was sufficient to prove that appellant possessed the gun while
    possessing cocaine. Appellant admitted to Saxton that he put the gun in the trash “earlier in the
    day.” Mitchell testified that there was no gun underneath the bucket only five minutes before
    when she left home and that she had used the bucket the Monday before the day in question.
    Thus, the trial court reasonably inferred that appellant possessed the gun when he ran from
    Saxton and Gauthier, and put it underneath the bucket to conceal it at the same time he possessed
    the baggies of cocaine, then returned to the hallway to confront the officers. It was
    uncontroverted that appellant had a prior felony conviction. Thus, credible evidence supports the
    trial court’s finding that appellant possessed the gun while in possession of cocaine and while a
    convicted felon.
    Finally, we find that the evidence was sufficient to prove that the defendant obstructed
    justice. The trial court reduced the charge from felony obstruction of justice under Code
    § 18.2-460(C), to misdemeanor obstruction of justice under Code § 18.2-460(A). That section
    states, in pertinent part, that
    If any person without just cause knowingly obstructs a judge,
    magistrate, justice, juror, attorney for the Commonwealth, witness
    or any law-enforcement officer in the performance of his duties as
    such or fails or refuses without just cause to cease such obstruction
    when requested to do so by such judge, magistrate, justice, juror,
    attorney for the Commonwealth, witness, or law-enforcement
    officer, he shall be guilty of a Class 2 misdemeanor.
    “Impeding an officer’s duties does not require the defendant to commit an actual or
    technical assault upon the officer. Rather, there must be acts clearly indicating an intention on
    the part of the accused to prevent the officer from performing his duty, as to ‘obstruct’ ordinarily
    implies opposition or resistance by direct action.” Craddock v. Commonwealth, 
    40 Va. App. 539
    , 552-53, 
    580 S.E.2d 454
    , 461 (2003) (internal citations and quotations omitted).
    -6-
    The evidence supports the trial court’s judgment that appellant continued to struggle with
    the police and refused to take his hands from underneath his body when ordered. The officers,
    clearly identified as police, entered the back door, and saw appellant approach from the kitchen.
    They announced that they were police officers again, and told appellant to get down, which he
    refused to do and he had to be subdued. Therefore, the trial court did not err in finding the
    evidence sufficient to prove appellant obstructed justice by impeding the police officers in the
    performance of their duties.
    Finding no error, we affirm the judgment of the trial court.
    Affirmed.
    -7-