Calvin Austin Hargrove v. Commonwealth of VA

• Court: Court of Appeals of Virginia
• Decided: February 19, 2002
• Docket: 2084001
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judge Annunziata and Senior Judge Coleman Argued at Richmond, Virginia

CALVIN AUSTIN HARGROVE MEMORANDUM OPINION * BY v. Record No. 2084-00-1 CHIEF JUDGE JOHANNA L. FITZPATRICK FEBRUARY 19, 2002 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH James A. Cales, Jr., Judge

Barrett R. Richardson (Richardson & Rosenberg, LLC, on brief), for appellant.

Stephen R. McCullough, Assistant Attorney General (Mark L. Earley, Attorney General; Shelly R. James, Assistant Attorney General, on brief), for appellee.

Calvin Austin Hargrove (appellant) contends the evidence in

his bench trial was insufficient to convict him of possession of

cocaine with intent to distribute in violation of

Code § 18.2-248. For the following reasons, we affirm the

judgment of the trial court.

I. BACKGROUND

Under familiar principles of appellate review, we examine the

evidence in the light most favorable to the Commonwealth, the

prevailing party below, granting to it all reasonable inferences

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. fairly deducible therefrom. See Juares v. Commonwealth, 26 Va.

App. 154, 156, 493 S.E.2d 677, 678 (1997).

So viewed, the evidence established that on January 5,

1995, at approximately 4:30 p.m., Officers Francis Natal (Natal)

and Judd Robinson (Robinson) saw appellant standing with another

man in the 900 block of County Street, Portsmouth, Virginia.

They "drove right up to them" in an unmarked police vehicle and

when they were approximately five to ten feet away, the two

individuals turned around and walked away. While appellant

walked, he made a "motion" with his right hand, opened it, and a

clear plastic baggie fell out of his hand. Natal ran up to the

location where appellant dropped the bag and picked it up. He

saw numerous rocks which he believed were crack cocaine. Natal

yelled to Robinson "I've got the dope," and appellant began to

run. Natal and Robinson stopped and arrested appellant shortly

thereafter. In a search incident to the arrest, the officers

found a working pager and $370 in U.S. currency. An analysis of

the substance in the bag revealed that the off-white solid

material was 8.2 grams of cocaine, an amount of drugs described

by an expert as inconsistent with personal use.

At trial, Natal testified that he knew appellant "on the

street" before January 5, but he had no personal contact with

him. He also stated that it was "broad daylight" at the time he

saw appellant drop the plastic bag and attempt to flee.

- 2 - Appellant testified that he had never been convicted of a

felony or any crime involving dishonesty or theft. He claimed

that on January 5, he stopped at a store to get his pager

repaired and was walking from that store with four other

individuals. He stated that he did not know that the police

officers were approaching and ran because the others started to

run. "Everybody just ran. I knew there was a lot of stuff

going on in the area as far as a lot of people getting hurt

around that park, I was – so I just ran, my first reaction." He

denied ever having the drugs in his possession.

II. STANDARD OF REVIEW

In reviewing sufficiency of the evidence, "the judgment of

the trial court sitting without a jury is entitled to the same

weight as a jury verdict." Saunders v. Commonwealth, 242 Va.

107, 113, 406 S.E.2d 39, 42, cert. denied, 502 U.S. 944 (1991).

"[T]he trial court's judgment will not be set aside unless

plainly wrong or without evidence to support it." Hunley v.

Commonwealth, 30 Va. App. 556, 559, 518 S.E.2d 347, 349 (1999).

III. SUFFICIENCY OF THE EVIDENCE

Appellant argues that it "defies reason" that he would

throw down narcotics in broad daylight in plain view of a police

officer located five to ten feet away from him. Further, he

maintains that because his version of the facts is not

- 3 - inherently incredible, the Commonwealth failed to carry the

burden of proof beyond a reasonable doubt. We disagree.

"[P]ossession may be proved by evidence of acts,

declarations, or conduct of the accused from which the inference

may be fairly drawn that he knew of the existence of narcotics

at the place where they were found." Hardy v. Commonwealth, 17

Va. App. 677, 682, 440 S.E.2d 434, 437 (1994).

Here the evidence is sufficient to support the trial

court's finding that appellant possessed cocaine with the intent

to distribute. Natal testified that he saw appellant from a

distance of five to ten feet in "broad daylight" throw the

package of cocaine to the ground. This direct evidence

contradicts appellant's denial that he was the person who

discarded the drugs. Credible evidence supports the trial

court's determination.

The credibility of a witness 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). In its role of judging witness credibility, the fact finder is entitled to disbelieve the self-serving testimony of the accused and to conclude that the accused is lying to conceal his guilt. See Speight v. Commonwealth, 4 Va. App. 83, 88, 354 S.E.2d 95, 98 (1987) (en banc).

Marable v. Commonwealth, 27 Va. App. 505, 509-10, 500 S.E.2d

233, 235 (1998). See also White v. Commonwealth, 25 Va. App.

662, 664, 492 S.E.2d 451, 452 (1997); Motley v. Commonwealth, 17

- 4 - Va. App. 439, 440, 437 S.E.2d 232, 233 (1993); Collins v.

Commonwealth, 13 Va. App. 177, 178, 409 S.E.2d 175, 175 (1991).

Thus, appellant's contention that it "defies reason" that he

would drop the drugs in the presence of the police is without

merit.

Additionally, appellant's flight can also be considered in

determining whether he possessed the drugs.

"Although flight alone may not supply sufficient reason to

suspect a person of criminal activity, it may otherwise color

apparently innocent conduct and, under appropriate

circumstances, give rise to reasonable suspicion of criminal

activity." Buck v. Commonwealth, 20 Va. App. 298, 303, 456

S.E.2d 534, 536 (1995).

Headlong flight -- wherever it occurs -- is the consummate act of evasion: it is not necessarily indicative of wrongdoing, but it is certainly suggestive of such. In reviewing the propriety of an officer's conduct, courts do not have available empirical studies dealing with inferences drawn from suspicious behavior, and we cannot reasonably demand scientific certainty from judges or law enforcement officers where none exists. Thus, the determination of reasonable suspicion must be based on commonsense judgments and inferences about human behavior.

Illinois v. Wardlow, 528 U.S. 119, 124-25 (2000).

IV. CONCLUSION

Credible evidence supports the trial court's finding that

the evidence was sufficient to convict appellant of possession

- 5 - with intent to distribute cocaine. Natal saw appellant drop the

bag of drugs in broad daylight. He retrieved the drugs from the

location where appellant dropped them and arrested him after his

flight from the scene. The trial court was not required to

believe appellant's version of the events and could conclude

that he was lying to conceal his guilt.

For these reasons, we affirm the trial court.

Affirmed.

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