Craig Jeffrey Thomas v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: December 1, 1998
• Docket: 2561971
• Status: Unpublished

Opinion

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

- 2 - 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

- 3 - (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.

- 4 - 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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