Craig Jeffrey Thomas v. Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Overton and Senior Judge Baker
Argued at Norfolk, Virginia
CRAIG JEFFREY THOMAS
MEMORANDUM OPINION * BY
v. Record No. 2561-97-1 JUDGE JOSEPH E. BAKER
DECEMBER 1, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
Randolph T. West, Judge
Ronald L. Smith for appellant.
Linwood T. Wells, Jr., Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Craig Jeffrey Thomas (appellant) appeals from his bench
trial conviction by the Circuit Court of the City of Newport News
for unlawfully possessing cocaine in violation of Code
§ 18.2-250. Appellant contends the evidence is insufficient to
prove beyond a reasonable doubt that he constructively possessed
the cocaine. Finding no error, we affirm the judgment of the
trial court.
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. See Martin v. Commonwealth, 4 Va. App. 438, 443, 358
S.E.2d 415, 418 (1987). "The judgment of a trial court will be
disturbed only if plainly wrong or without evidence to support
*
Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
it." Glasco v. Commonwealth, 26 Va. App. 763, 773, 497 S.E.2d
150, 155 (1998).
The record discloses that on July 31, 1995, a reliable
informant advised Newport News Detective D.M. Best that a black
male named "Craig," who drove a red "5.0 Mustang," was at a Robo
Car Wash in possession of a quantity of crack cocaine. Best and
Officers W.S. Warren and T.G. LeCroy drove to the Robo Car Wash,
arriving within five minutes of receiving the tip. There, they
saw appellant, who was standing by a red Mustang automobile.
As the officers exited their vehicle, appellant looked in
their direction, walked to the driver's side of the Mustang, and
sat down in the driver's seat. Warren testified that appellant
"leaned semi over to his right, forward, and began with his right
hand to make a motion as if trying to stick something or put
something on the passenger side of the console in the
vehicle. . . . It appeared as if he was making some kind of
pushing motion with his hand."
Out of concern for officer safety, Warren drew his weapon
and ordered appellant to put his hands in the air. Appellant
"immediately brought his hands up, then sort of hesitated and
went back down with his right hand again in that same area . . .
and then as we came to the vehicle he quickly moved his hands
back up." After the officers removed appellant from the car,
Warren directed LeCroy to search the area where appellant had
been reaching with his hand. Stuffed under the console, on the
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floorboard, LeCroy found a plastic bag containing 2.2 grams of
crack cocaine. No one else entered the car while the officers
were present.
Although the Mustang was not registered to appellant, a
subsequent search of the Mustang's glove box revealed numerous
papers connecting appellant to the car, including a July 31, 1995
repair receipt for the Mustang, listing appellant as the
customer. Found in appellant's possession were a cellular
telephone, a pager, and more than $200 in cash.
Appellant denied knowledge of the presence of the discovered
contraband and asserted that the car belonged to his brother
who, appellant said, had driven the Mustang to the car wash.
Gregory Campbell, a thrice-convicted felon, testified for the
defense that he had put the cocaine in the Mustang, but said that
he placed it in the vehicle's ashtray. Campbell admitted smoking
crack cocaine the night before the July 31, 1995 incident, and
testified that using drugs sometimes affected his memory.
"Circumstantial evidence is as competent and is entitled to
as much weight as direct evidence, provided it is sufficiently
convincing to exclude every reasonable hypothesis except that of
guilt." Coleman v. Commonwealth, 226 Va. 31, 53, 307 S.E.2d 864,
876 (1983). However, "[t]he Commonwealth need only exclude
reasonable hypotheses of innocence that flow from the evidence,
not those that spring from the imagination of the defendant."
Hamilton v. Commonwealth, 16 Va. App. 751, 755, 433 S.E.2d 27, 29
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(1993). 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).
"While proximity to a controlled substance is insufficient
alone to establish possession, it is a factor to consider when
determining whether the accused constructively possessed the
drugs." Brown v. Commonwealth, 15 Va. App. 1, 9, 421 S.E.2d 877,
882 (1992) (en banc). "Ownership or occupancy of the vehicle in
which the drugs are found is likewise a circumstance probative of
possession." Glasco, 26 Va. App. at 774, 497 S.E.2d at 155(finding sufficient evidence of possession where, although the
car in which drugs were found was not registered to the
defendant, he was driving it and the car had been in his
possession on previous occasions). In resolving this issue, the
trial court must consider "the totality of the circumstances
disclosed by the evidence." Womack v. Commonwealth, 220 Va. 5,
8, 255 S.E.2d 351, 353 (1979).
Appellant's actions upon seeing the police officers revealed
that he was aware of the presence of the cocaine in the Mustang.
Warren observed appellant reaching toward the center console and
making a "pushing" action at the point where the cocaine was
found under the console. Moreover, the papers found in the glove
box support the finding that the Mustang was in appellant's
possession and under his control at the time the cocaine was
discovered.
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Appellant's attempt to explain the repair receipt and other
items found in the glove box was vague, disjointed and obviously
did not persuade the trial court. Likewise, the trial court also
was not required to accept Campbell's testimony. The credibility
of witnesses' testimony and the inferences to be drawn from
proven facts are matters solely for the fact finder's
determination. See Long v. Commonwealth, 8 Va. App. 194, 199,
379 S.E.2d 473, 476 (1989).
We hold that the evidence is sufficient to prove appellant's
guilt of possessing cocaine and, accordingly, the judgment of the
trial court is affirmed.
Affirmed.
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