Johnny R. Breeden v. Commonwealth

• Court: Court of Appeals of Virginia
• Decided: September 23, 1997
• Docket: 1473962
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Elder, Fitzpatrick and Annunziata Argued at Richmond, Virginia

JOHNNY R. BREEDEN MEMORANDUM OPINION * BY v. Record No. 1473-96-2 JUDGE ROSEMARIE ANNUNZIATA SEPTEMBER 23, 1997 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF HENRICO COUNTY George F. Tidey, Judge D. Gregory Carr (Bowen, Bryant, Champlin & Carr, on brief), for appellant.

Kimberley A. Whittle, Assistant Attorney General (Richard Cullen, Attorney General, on brief), for appellee.

Following a bench trial, appellant, Johnny R. Breeden, was

convicted of possession of cocaine with intent to distribute and

possession of a concealed weapon. On appeal, he contends that

the Commonwealth's evidence is insufficient to support his

conviction for possession of a concealed weapon. We disagree and

affirm.

Trooper Lowrance attempted to stop appellant for speeding.

Appellant refused to stop and a high-speed chase ensued. When,

nearly an hour later, the vehicle appellant drove finally came to

rest, a passenger exited and surrendered herself to police

custody. Appellant fled but was quickly caught. A struggle to

subdue appellant followed, during which Lowrance noticed a

* Pursuant to Code § 17-116.010 this opinion is not designated for publication. container partially concealed in appellant's hand.

After appellant was apprehended, the container was

recovered; it later proved to contain cocaine and marijuana. A

search of appellant's person revealed a total of $1,000 cash

divided into several bundles, each amounting to between $40 and

$65. A search of the vehicle revealed a police scanner tuned to

the police frequency, rolling papers, and two, nearly identical,

bowie knives. Neither knife was detected from a visual search of

the vehicle. One knife was found under the driver's seat; it was

"not shoved up very far" under the seat and was "accessible to

the driver." The second knife was found in the hatchback area of

the vehicle. Officer Maxwell, testifying as an expert witness,

stated that the packaging of the cocaine recovered in the search,

as well as the nature of the bundling of the cash, was consistent

with drug distribution practices. He further testified that the

presence of the knives and the police scanner was consistent with

the drug trade. On the scene, appellant denied knowledge of both the drugs

and the knives. He stated that he had "just met" his passenger

at a gas station and that they had decided to "go for a ride."

The vehicle proved to be registered to the passenger's father.

Ultimately, however, the court found that: when you take the drugs, the money, the scanner, the knife, and [the] eluding the police officers, there's no doubt in my mind that [appellant] possessed the cocaine with the intent to distribute . . . . Same with the weapon.

2 When considering the sufficiency of the evidence on appeal

in a criminal case, this Court views the evidence in a light most

favorable to the Commonwealth, granting to it all reasonable

inferences fairly deducible therefrom. Higginbotham v.

Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975). The

trial court's judgment will not be set aside unless it appears

that the judgment is plainly wrong or without evidence to support

it. Code § 8.01-680; Josephs v. Commonwealth, 10 Va. App. 87,

99, 390 S.E.2d 491, 497 (1990) (en banc). The Commonwealth's case was built on circumstantial evidence

of constructive possession. To support a conviction based upon constructive possession, "the Commonwealth must point to evidence of acts, statements, or conduct of the accused or other facts or circumstances which tend to show that the defendant was aware of both the presence and character of the [contraband] and that it was subject to his dominion and control."

Drew v. Commonwealth, 230 Va. 471, 473, 338 S.E.2d 844, 845

(1986) (quoting Powers v. Commonwealth, 227 Va. 474, 476, 316

S.E.2d 739, 740 (1984)). "Circumstantial evidence is sufficient

to support a conviction as long as it excludes every reasonable

hypothesis of innocence." Price v. Commonwealth, 18 Va. App.

760, 767, 446 S.E.2d 642, 646 (1994). "Although `[t]he

Commonwealth is not required to prove that there is no

possibility that someone else may have planted, discarded,

abandoned or placed the [contraband where it was found near an

accused],' all reasonable hypotheses of innocence must be

3 excluded." Pemberton v. Commonwealth, 17 Va. App. 651, 655, 440

S.E.2d 420, 422 (1994) (quoting Brown v. Commonwealth, 15 Va.

App. 1, 10, 421 S.E.2d 877, 883 (1992) (en banc)).

In the present case, appellant asserts that the Commonwealth

failed to exclude as a reasonable hypothesis of innocence the

possibility that someone other than appellant placed the knives

where they were found in the vehicle. Specifically, appellant

points to the fact that (1) he denied knowledge of the knives at

the scene; (2) neither knife was immediately visible to the

police officers; and (3) the vehicle in which the knives were

found was registered to the passenger's father, not appellant. Whether an alternative hypothesis is a "reasonable

hypothesis of innocence" is a question of fact, see Cantrell v.

Commonwealth, 7 Va. App. 269, 290, 373 S.E.2d 328, 339 (1988),

and thus binding on appeal unless it is plainly wrong or without

evidence to support it. See, e.g., Naulty v. Commonwealth, 2 Va.

App. 523, 527, 346 S.E.2d 540, 542 (1986). We find that the

evidence supports the trial court's conclusion that appellant

possessed the knife found under the driver's seat to the

exclusion of the hypothesis that it was placed there by someone

other than appellant.

In its entirety, the evidence established that appellant was

a drug dealer. He was found with a quantity of marijuana and

cocaine packaged for distribution and a quantity of cash

indicative of drug sales. A search of the vehicle he drove

4 revealed a police scanner, tuned to the police frequency, as well

as the weapons in question here. The presence of the scanner and

the weapons was consistent with appellant's participation in the

drug trade. The evidence showed that the knife found under the

appellant's seat was "accessible" to him. Appellant's flight,

both during the high speed chase and following the stop, is

further evidence supporting the trial court's finding of guilt.

See Langhorne v. Commonwealth, 13 Va. App. 97, 102, 409 S.E.2d

476, 480 (1991) ("[T]he fact of an accused's flight . . . and

related conduct, are admissible as evidence of guilt, and thus of

guilt itself." (quoting United States v. Ballard, 423 F.2d 127, 133 (5th Cir. 1970))). 1

The fact that appellant denied knowledge of the knives to

the police officers on the scene does not undermine the trial

court's finding to the contrary. Indeed, appellant also denied

knowledge of the drugs he was convicted of possessing with intent

to distribute. The fact that the knives were not apparent to the

officers after a visual inspection of the vehicle is likewise not

dispositive. Nor is ownership of the vehicle dispositive,

especially where, as here, appellant was in possession and

control of it. See Fox v. Commonwealth, 213 Va. 97, 101, 189

S.E.2d 367, 370 (1972). 1 Contrary to appellant's suggestion to the contrary, the trial court was entitled to infer that appellant's attempt to elude the police was a reflection not only of some of appellant's then numerous criminal acts, but all of them, including his possession of a concealed weapon.

5 The appellant's conviction is accordingly affirmed.

Affirmed.