Melvin L. Gilmore v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: October 30, 2001
• Docket: 2130002
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judges Bumgardner and Humphreys Argued at Richmond, Virginia

MELVIN L. GILMORE MEMORANDUM OPINION * BY v. Record No. 2130-00-2 JUDGE ROBERT J. HUMPHREYS OCTOBER 30, 2001 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF MECKLENBURG COUNTY William L. Wellons, Judge

Buddy A. Ward, Public Defender (Robert R. Meeks, Senior Assistant Public Defender; Office of the Public Defender, on brief), for appellant.

Linwood T. Wells, Jr., Assistant Attorney General (Randolph A. Beales, Acting Attorney General, on brief), for appellee.

Melvin L. Gilmore appeals his conviction, after a bench

trial, for possession of cocaine. Gilmore contends that the

trial court erred in finding the evidence sufficient to support

the conviction. Specifically, Gilmore argues that the

Commonwealth failed to establish that he possessed cocaine with

the requisite knowledge of the nature and character of the

substance. We disagree and affirm his conviction. Because this

opinion has no precedential value, we recite only those facts

central to our holding.

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. On October 15, 1999, at approximately 10:15 p.m., Officer

Merlin Burchette of the Chase City Police Department was

assisting a fellow officer in a routine traffic stop. The

female driver gave the officers permission to search the

vehicle, and the officers asked both the driver and Gilmore, who

was sitting in the front passenger seat, to step out of the

vehicle to facilitate the search. Officer Burchette observed

that Gilmore acted "jittery and [was fidgeting]" as he stepped

out of the vehicle, so he asked Gilmore if he could pat him down

to search for drugs and weapons. Gilmore replied that "he

didn't have a problem with it." Upon completing the pat-down

search, Burchette noticed "a hard or a rough feeling object on

the outer right side of [Gilmore's] leg." Burchette then raised

Gilmore's pant leg and a glass tube fell out onto the ground.

Burchette asked Gilmore what the tube was, and Gilmore stated

that he had "picked it up off the floor [of the car] and another

individual put it there, and then [Gilmore] picked it up and put

it in his sock."

Officer Burchette, who was trained in the area of narcotics

investigation, believed that the glass tube, which contained a

black colored substance and a light-brown colored substance, was

a smoking device for crack cocaine. Accordingly, he placed

Gilmore under arrest and read him his Miranda rights. After

being tested, the lab certificate established that the tube

indeed contained cocaine residue.

- 2 - At trial, Gilmore testified that at the time he picked the

tube up off of the floor, he did not know what it was, nor did

he know that it contained a controlled substance. He stated

that there was a third person in the car who was sitting in the

rear seat. After the car was stopped, Gilmore claimed that the

rear passenger threw the tube to the front of the car. When the

officers asked to search the car, Gilmore stated that he picked

the tube up off of the floor and concealed it inside his sock

because he knew something was wrong and wanted to protect the

female driver, who was a friend of his. Gilmore testified, "I

couldn't throw it out the window or anything like that, so I

just stuck it inside my sock." The trial court denied Gilmore's

motions to strike and ultimately found Gilmore guilty of the

offense. On appeal, Gilmore argues that the trial court erred

in finding the evidence sufficient to establish he possessed the

cocaine with the requisite knowledge of the nature and character

of the substance.

Where the sufficiency of the evidence is challenged after conviction, it is our duty to consider it in the light most favorable to the Commonwealth and give it all reasonable inferences fairly deducible therefrom. We should affirm the judgment unless it appears from the evidence that the judgment is plainly wrong or without evidence to support it.

Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534,

537 (1975). Furthermore, "[w]itness credibility, the weight

accorded the testimony and the inferences to be drawn from

- 3 - proven facts are matters to be determined by the fact finder,

and the trial court's judgment will not be disturbed on appeal

unless it is plainly wrong or without evidence to support it."

Sapp v. Commonwealth, 35 Va. App. 519, 526, 546 S.E.2d 245, 249

(2001) (citing Code § 8.01-680; Long v. Commonwealth, 8 Va.

App. 194, 199, 379 S.E.2d 473, 476 (1989)).

"The Commonwealth may prove possession of a controlled

substance by showing either actual or constructive possession."

Barlow v. Commonwealth, 26 Va. App. 421, 429, 494 S.E.2d 901,

904 (1998). As stated by the trial court, possession is not an

issue in the case. Gilmore clearly acknowledged that he

obtained actual possession of the glass tube containing cocaine

when he picked it up from the floor of the vehicle.

However, "'[t]o establish "possession" in the legal sense,

it is not sufficient to simply show actual or constructive

possession of the drug by the defendant. The Commonwealth must

also establish that the defendant intentionally and consciously

possessed it with knowledge of its nature and character.'"

Armstrong v. Commonwealth, 29 Va. App. 102, 114, 510 S.E.2d 247,

252 (1999) (quoting Burton v. Commonwealth, 215 Va. 711, 713,

213 S.E.2d 757, 758-59 (1975)). "Knowledge of the presence and

character of the controlled substance may be shown by evidence

of the acts, statements or conduct of the accused." Eckhart v.

Commonwealth, 222 Va. 447, 450, 281 S.E.2d 853, 855 (1981).

Moreover, mere "[p]ossession of a controlled drug gives rise to

- 4 - 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) (en banc).

Here, Gilmore's actions in picking up the glass tube and

attempting to conceal it before the police searched the vehicle,

together with his physical possession of the tube containing the

cocaine, support the trial court's finding that Gilmore had

knowledge of the nature and character of the substance contained

in the glass tube. We recognize that where, as here, the

element of knowledge "is based on circumstantial evidence, 'all

necessary circumstances proved must be consistent with guilt and

inconsistent with innocence and exclude every reasonable

hypothesis of innocence.'" Garland v. Commonwealth, 225 Va.

182, 184, 300 S.E.2d 783, 784 (1983) (quoting Carter v.

Commonwealth, 223 Va. 528, 532, 290 S.E.2d 865, 867 (1982)).

Nevertheless, the trial court did not have to believe Gilmore's

version of the events surrounding his possession of the glass

tube. Indeed, as stated above, it is the fact finder who

"evaluates the credibility of witnesses and the weight accorded

their testimony. Further, the fact finder may disbelieve the

self-serving testimony of the accused and conclude that he is

lying to conceal his guilt." Burke v. Commonwealth, 30 Va. App.

89, 93, 515 S.E.2d 777, 779 (1999) (citations omitted).

- 5 - Accordingly, we conclude that the evidence was sufficient to

sustain the conviction.

Affirmed.

- 6 -