Patrick D. Golden v. Commonwealth ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Bray and Overton
Argued at Norfolk, Virginia
PATRICK D. GOLDEN
v. Record No. 0387-95-1 MEMORANDUM OPINION * BY
JUDGE RICHARD S. BRAY
COMMONWEALTH OF VIRGINIA JANUARY 30, 1996
FROM THE CIRCUIT COURT OF YORK COUNTY
Russell M. Carneal, Judge Designate
Karen M. Vannan (Buxton, Lasris & Vannan,
P.C., on brief), for appellant.
Marla Graff Decker, Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.
Patrick D. Golden (defendant) was convicted in a bench trial
for possession of cocaine in violation of Code § 18.2-250(a).
On appeal, defendant challenges the sufficiency of the evidence
to support the conviction. We affirm the judgment of the trial
court.
The parties are fully conversant with the record, and we
recite only those facts necessary to a disposition of this
appeal.
Under familiar principles of appellate review, we examine
the evidence in the light most favorable to the Commonwealth,
granting to it all reasonable inferences fairly deducible
therefrom. Martin v. Commonwealth, 4 Va. App. 438, 443, 358
S.E.2d 415, 418 (1987). The judgment of a trial court, sitting
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
without a jury, is entitled to the same weight as a jury verdict
and will be disturbed only if plainly wrong or without evidence
to support it. Id. The credibility of a witness, the weight
accorded the testimony, and the inferences to be drawn from
proven facts are matters solely for the fact finder's
determination. Long v. Commonwealth, 8 Va. App. 194, 199, 379
S.E.2d 473, 476 (1989).
While seated in marked police vehicles, parked side by side
in an "area where a lot of drug sales are made," York County
Sheriff investigator Ekstein and Virginia State Trooper Tate
observed defendant standing approximately five feet "off to the
right-hand side [of] a tree." As they watched, defendant walked
to a nearby basketball court and began "playing basketball,
dribbling a basketball," with "several young kids." However,
"every once in a while" defendant would "look back at the base of
the tree as if there was . . . something there." This behavior
aroused the officers' suspicions, and they walked towards the
tree, noticing a "white piece of tissue paper" at its "fork,"
"less than a foot from the ground." Ekstein opened the opaque
tissue and discovered a "plastic wrapper" which contained "a
white rock-like substance," the drugs in issue.
Defendant then approached the officers and in subsequent
conversation claimed that an unidentified person had thrown the
tissue to the ground and left the area just prior to their
arrival. Thinking that the tissue contained crack cocaine,
defendant placed it "into the little crack . . . between the
- 2 -
branches of the tree," because he "didn't want any of the kids to
get ahold of it." Defendant explained that his cousin had
"brought him to the area," but was unable to state the purpose of
the visit.
"To convict a defendant of possession of illegal 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." Albert v. Commonwealth, 2 Va.
App. 734, 741, 347 S.E.2d 534, 538 (1986). "Possession of a
controlled drug gives rise to an inference of the defendant's
knowledge of its character." Josephs v. Commonwealth, 10 Va.
App. 87, 101, 390 S.E.2d 491, 498-99 (1990). "The duration of
the possession is immaterial . . . ." Gillis v. Commonwealth,
215 Va. 298, 302, 208 S.E.2d 768, 771 (1974).
"'[K]nowledge . . . may be proved by evidence of acts,
declarations or conduct of the accused from which the inference
may be fairly drawn that [the accused] knew of the existence of
narcotics at the place where they were found.'" Hairston v.
Commonwealth, 5 Va. App. 183, 186, 360 S.E.2d 893, 895 (1987)
(alterations in original) (citation omitted).
Here, defendant admitted actual possession of the tissue,
believing that cocaine was hidden inside. Although defendant
stated that he attempted to remove it from the children's reach,
he placed the tissue just a foot from the ground in plain view,
and made no attempt to inform the officers of the circumstances
when they arrived in the police vehicles. Instead, he engaged in
- 3 -
basketball play with children, while keeping watch over the tree.
Such evidence, considered with the entire record, is
sufficient to support a finding that defendant was aware of the
presence and character of the drug concealed in the tissue,
intentionally and consciously possessing it. Accordingly, we
affirm the conviction.
Affirmed.
- 4 -