COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Willis and Lemons Argued at Richmond, Virginia
ROBERT JONES, S/K/A ROBERT G. JONES, JR. MEMORANDUM OPINION * BY v. Record No. 2670-97-2 JUDGE JERE M. H. WILLIS, JR. FEBRUARY 16, 1999 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF HOPEWELL James F. D'Alton, Jr., Judge
John H. Click, Jr. (White, Blackburn & Conte, P.C., on brief), for appellant.
Thomas D. Bagwell, Senior Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.
On appeal from his conviction for possession of cocaine, in
violation of Code § 18.2-250, Robert Jones contends that the
evidence is insufficient to support his conviction. We disagree
and affirm the judgment of the trial court.
"On appeal, we review the evidence in the light most
favorable to the Commonwealth, granting to it all reasonable
inferences deducible therefrom." Martin v. Commonwealth, 4 Va.
App. 438, 443, 358 S.E.2d 415, 418 (1987).
On September 22, 1995, Jones was arrested by Officer Isaac
Hawkins, Jr., pursuant to a misdemeanor arrest warrant. Officer
Hawkins frisked Jones before placing him in the rear seat of a
police cruiser. Hawkins testified that Jones was the only
* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. occupant of the rear seat of the police vehicle during Hawkins'
shift that night, that he had arrested Jones around 11:15 p.m.,
and that he had processed Jones himself. At the sentencing
hearing held June 5, 1996, the Commonwealth reopened its case so
that Hawkins could correct his testimony. Hawkins then testified
that he arrested Jones around 8:15 p.m. and that he did not
himself process Jones. The vehicle was locked with its windows
rolled up at all times during Hawkins' shift.
Upon concluding his shift, Hawkins turned the vehicle over
to Officer Paul Entrobia, Jr., who searched the vehicle
preparatory to undertaking the next shift. Under the rear seat,
Officer Entrobia found a white chalky substance, determined upon
laboratory analysis to be crack cocaine.
The Commonwealth based its case against Jones on the theory
that Hawkins had searched the vehicle at the beginning of his
shift, that his search had disclosed no contraband, specifically
cocaine, and that Jones was the only occupant of the rear seat of
the vehicle before Officer Entrobia discovered the cocaine upon
his search. The issue on appeal is whether, prior to placing
Jones in the vehicle, Hawkins conducted a search establishing
that the vehicle, at that time, contained no cocaine. On direct examination, Officer Hawkins testified:
A. Standard procedure, Your Honor, before taking a shift, each vehicle is checked thoroughly by each officer coming on to the shift, which means that the backseat of the vehicle, the police vehicle, which is a removable seat, bench style, is actually pulled out from the vehicle
- 2 - where the -- the bottom of the seat is checked for any possible weapons, contraband, or anything that is left of what's supposed to be in the vehicle.
Q. Did you do this on that date?
A. That's correct.
* * * * * * *
Q. When you took the seat out, did you do a thorough investigation of your vehicle?
[DEFENSE ATTORNEY]: Judge, it's been asked and answered.
THE COURT: It's been asked and answered.
The foregoing testimony established that Officer Hawkins
searched his vehicle at the beginning of his shift, but he was
neither asked nor stated what, if anything, that search
disclosed. The Commonwealth argues that Hawkins' silence on the
subject will support an inference that he found nothing. It
argues also that the presumption that an officer will do his duty
supports an inference that Hawkins would have removed any
contraband that he found. We find neither argument persuasive.
However, on cross-examination, Hawkins was questioned and
testified as follows: Q. Okay. And then this rock was found afterwards in the patrol car; is that correct?
A. It was located by Officer Entrobia after the shift change.
Q. In the patrol car?
- 3 - Q. So this defendant would have had to have had that rock of crack cocaine on his person when you patted him down, correct?
A. That would be correct prior to him being placed in the police vehicle.
Q. That being the case, then, when you patted him down, you simply must have missed that large rock of crack cocaine on his person?
A. Are you asking me a question, sir, or are you speculating?
Q. I'm asking you if -- I'm asking you that rock -- your testimony is that that rock of crack cocaine was on this man's person when you patted him down?
A. Prior to placing him in my police vehicle, that's correct.
Q. So if that's your testimony, then, you must have, when you patted him down, missed seeing that rock of crack cocaine?
A. Obviously, I did. Correct.
The foregoing dialogue on cross-examination necessarily
supposes and infers that the crack cocaine was not in the police
vehicle prior to Jones' placement in the vehicle. That inference
supports the finding that Hawkins' inspection of the vehicle
disclosed no contraband because no contraband was there and that
the contraband must have gone into the vehicle with Jones. That
finding is sufficient to support Jones' conviction for possession
of cocaine. Jones contends that Hawkins' testimony is insufficient to
support his conviction because Hawkins made several errors in his
- 4 - trial testimony. "It is fundamental that 'the credibility of
witnesses and the weight accorded their testimony are matters
solely for the fact finder who has the opportunity of seeing and
hearing the witnesses.'" Singleton v. Commonwealth, 19 Va. App.
728, 735, 453 S.E.2d 921, 926 (1995) (en banc) (citation
omitted). The trial court reviewed the testimony of both parties
and determined that Hawkins was credible. The trial court was
afforded a second opportunity to judge Hawkins' credibility at
the sentencing hearing and again found Jones guilty.
Because the findings of the trial court are not plainly
wrong, the evidence is sufficient and the conviction must stand.
See Glover v. Commonwealth, 3 Va. App. 152, 160-61, 348 S.E.2d
434, 440 (1986), aff'd, 236 Va. 1, 372 S.E.2d 134 (1988).
The judgment of the trial court is affirmed.
Affirmed.
- 5 - Benton, J., dissenting.
The majority concludes that the circumstances were
sufficient to permit an inference that Robert Jones possessed the
cocaine found under the rear seat of the officer's vehicle. I
would reverse the conviction because the evidence was
insufficient to prove beyond a reasonable doubt that Jones
possessed the cocaine.
At trial, Officer Hawkins testified concerning his "standard
procedure . . . before taking a shift" of searching his vehicle
for weapons or contraband.
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COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Willis and Lemons Argued at Richmond, Virginia
ROBERT JONES, S/K/A ROBERT G. JONES, JR. MEMORANDUM OPINION * BY v. Record No. 2670-97-2 JUDGE JERE M. H. WILLIS, JR. FEBRUARY 16, 1999 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF HOPEWELL James F. D'Alton, Jr., Judge
John H. Click, Jr. (White, Blackburn & Conte, P.C., on brief), for appellant.
Thomas D. Bagwell, Senior Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.
On appeal from his conviction for possession of cocaine, in
violation of Code § 18.2-250, Robert Jones contends that the
evidence is insufficient to support his conviction. We disagree
and affirm the judgment of the trial court.
"On appeal, we review the evidence in the light most
favorable to the Commonwealth, granting to it all reasonable
inferences deducible therefrom." Martin v. Commonwealth, 4 Va.
App. 438, 443, 358 S.E.2d 415, 418 (1987).
On September 22, 1995, Jones was arrested by Officer Isaac
Hawkins, Jr., pursuant to a misdemeanor arrest warrant. Officer
Hawkins frisked Jones before placing him in the rear seat of a
police cruiser. Hawkins testified that Jones was the only
* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. occupant of the rear seat of the police vehicle during Hawkins'
shift that night, that he had arrested Jones around 11:15 p.m.,
and that he had processed Jones himself. At the sentencing
hearing held June 5, 1996, the Commonwealth reopened its case so
that Hawkins could correct his testimony. Hawkins then testified
that he arrested Jones around 8:15 p.m. and that he did not
himself process Jones. The vehicle was locked with its windows
rolled up at all times during Hawkins' shift.
Upon concluding his shift, Hawkins turned the vehicle over
to Officer Paul Entrobia, Jr., who searched the vehicle
preparatory to undertaking the next shift. Under the rear seat,
Officer Entrobia found a white chalky substance, determined upon
laboratory analysis to be crack cocaine.
The Commonwealth based its case against Jones on the theory
that Hawkins had searched the vehicle at the beginning of his
shift, that his search had disclosed no contraband, specifically
cocaine, and that Jones was the only occupant of the rear seat of
the vehicle before Officer Entrobia discovered the cocaine upon
his search. The issue on appeal is whether, prior to placing
Jones in the vehicle, Hawkins conducted a search establishing
that the vehicle, at that time, contained no cocaine. On direct examination, Officer Hawkins testified:
A. Standard procedure, Your Honor, before taking a shift, each vehicle is checked thoroughly by each officer coming on to the shift, which means that the backseat of the vehicle, the police vehicle, which is a removable seat, bench style, is actually pulled out from the vehicle
- 2 - where the -- the bottom of the seat is checked for any possible weapons, contraband, or anything that is left of what's supposed to be in the vehicle.
Q. Did you do this on that date?
A. That's correct.
* * * * * * *
Q. When you took the seat out, did you do a thorough investigation of your vehicle?
[DEFENSE ATTORNEY]: Judge, it's been asked and answered.
THE COURT: It's been asked and answered.
The foregoing testimony established that Officer Hawkins
searched his vehicle at the beginning of his shift, but he was
neither asked nor stated what, if anything, that search
disclosed. The Commonwealth argues that Hawkins' silence on the
subject will support an inference that he found nothing. It
argues also that the presumption that an officer will do his duty
supports an inference that Hawkins would have removed any
contraband that he found. We find neither argument persuasive.
However, on cross-examination, Hawkins was questioned and
testified as follows: Q. Okay. And then this rock was found afterwards in the patrol car; is that correct?
A. It was located by Officer Entrobia after the shift change.
Q. In the patrol car?
- 3 - Q. So this defendant would have had to have had that rock of crack cocaine on his person when you patted him down, correct?
A. That would be correct prior to him being placed in the police vehicle.
Q. That being the case, then, when you patted him down, you simply must have missed that large rock of crack cocaine on his person?
A. Are you asking me a question, sir, or are you speculating?
Q. I'm asking you if -- I'm asking you that rock -- your testimony is that that rock of crack cocaine was on this man's person when you patted him down?
A. Prior to placing him in my police vehicle, that's correct.
Q. So if that's your testimony, then, you must have, when you patted him down, missed seeing that rock of crack cocaine?
A. Obviously, I did. Correct.
The foregoing dialogue on cross-examination necessarily
supposes and infers that the crack cocaine was not in the police
vehicle prior to Jones' placement in the vehicle. That inference
supports the finding that Hawkins' inspection of the vehicle
disclosed no contraband because no contraband was there and that
the contraband must have gone into the vehicle with Jones. That
finding is sufficient to support Jones' conviction for possession
of cocaine. Jones contends that Hawkins' testimony is insufficient to
support his conviction because Hawkins made several errors in his
- 4 - trial testimony. "It is fundamental that 'the credibility of
witnesses and the weight accorded their testimony are matters
solely for the fact finder who has the opportunity of seeing and
hearing the witnesses.'" Singleton v. Commonwealth, 19 Va. App.
728, 735, 453 S.E.2d 921, 926 (1995) (en banc) (citation
omitted). The trial court reviewed the testimony of both parties
and determined that Hawkins was credible. The trial court was
afforded a second opportunity to judge Hawkins' credibility at
the sentencing hearing and again found Jones guilty.
Because the findings of the trial court are not plainly
wrong, the evidence is sufficient and the conviction must stand.
See Glover v. Commonwealth, 3 Va. App. 152, 160-61, 348 S.E.2d
434, 440 (1986), aff'd, 236 Va. 1, 372 S.E.2d 134 (1988).
The judgment of the trial court is affirmed.
Affirmed.
- 5 - Benton, J., dissenting.
The majority concludes that the circumstances were
sufficient to permit an inference that Robert Jones possessed the
cocaine found under the rear seat of the officer's vehicle. I
would reverse the conviction because the evidence was
insufficient to prove beyond a reasonable doubt that Jones
possessed the cocaine.
At trial, Officer Hawkins testified concerning his "standard
procedure . . . before taking a shift" of searching his vehicle
for weapons or contraband. His testimony established only that
he did not see anything he believed to be cocaine when, to the
best of his "recollection," he searched the vehicle at 4:00 p.m.
When Officer Hawkins arrived at Jones' residence, Jones was
wearing shorts and no shirt. Officer Hawkins could not recall
whether Jones wore shoes or socks. He searched Jones in the
residence and again outside before he put Jones in his vehicle.
He found no cocaine on Jones. At trial, Officer Hawkins
testified that he arrested Jones at 11:15 p.m. However, at the
sentencing hearing several months later, Officer Hawkins
testified that his trial testimony was incorrect and that he had
in fact arrested Jones at 8:15 p.m. He explained this
discrepancy by stating that his prior testimony was based on his
"best recollection." Officer Hawkins did not find the cocaine. Officer Entrobia
testified that when his shift began at 12:00 a.m., he searched
the vehicle that Officer Hawkins had used. He completely removed
- 6 - the back seat of the vehicle and found a piece of cocaine on the
floor of the space he exposed.
This evidence does not prove that Jones was ever in actual
possession of the cocaine. His proximity to the cocaine is
insufficient to prove beyond a reasonable doubt that he possessed
it. See Clodfelter v. Commonwealth, 218 Va. 619, 623, 238 S.E.2d
820, 822 (1977). Moreover, in order for circumstantial evidence
to prove guilt beyond a reasonable doubt, the evidence must be
wholly consistent with guilt and wholly inconsistent with
innocence. See Bishop v. Commonwealth, 227 Va. 164, 169, 313
S.E.2d 390, 393 (1984). Furthermore, the evidence was
insufficient to even prove constructive possession because no
facts or circumstances indicated that Jones was aware of the
presence of the cocaine and exercised dominion and control over
it. See Drew v. Commonwealth, 230 Va. 471, 473, 338 S.E.2d 844,
845 (1986).
The Commonwealth's theory of prosecution was that Jones was
the only person who could have possessed the cocaine. However,
to support the conviction, the evidence must exclude every
reasonable hypothesis other than Jones' possession of the
cocaine. See Bishop, 227 Va. at 169, 313 S.E.2d at 393. It does
not. Officer Hawkins' testimony does not exclude the reasonable
hypothesis that he incompletely searched the vehicle or simply
did not recognize the item that Officer Entrobia found three and
a half hours after Jones had been removed from the vehicle.
- 7 - Officer Hawkins searched Jones twice before putting him in
the car. Jones did not wear much clothing. To the best of
Officer Hawkins' "recollection," he had earlier searched the car
according to standard procedure. However, his testimony clearly
proved that his recollection was faulty because he could not
accurately recall the time he arrested Jones. In addition,
Officer Hawkins testified at trial that he personally processed
Jones and took him before a magistrate. However, at the
sentencing hearing he admitted that he did not process Jones. He
attributed that mistake in his trial testimony to his belief at
trial that "to the best of [his] recollection . . . [he] followed
standard procedure." The officer's faulty recollection casts
doubt upon whether he earlier searched the car.
On this evidence, it is equally as likely that Officer
Hawkins overlooked the piece of cocaine earlier during an
incomplete search of his vehicle as it is that he overlooked the
piece of cocaine during the two searches of Jones before he put
Jones in the vehicle. When evidence is equally susceptible of
two interpretations, one of which is consistent with the
innocence of the accused, the trier of fact cannot arbitrarily
adopt that interpretation which incriminates the accused. See
Corbett v. Commonwealth, 210 Va. 304, 307, 171 S.E.2d 251, 253
(1969). Furthermore, cocaine was found under the seat by Officer
Entrobia, who searched the vehicle three and a half hours after
Jones was in the vehicle. The completeness of Officer Entrobia's
- 8 - search does nothing to establish whether Officer Hawkins was
complete in his search.
The evidence in the record only raises a suspicion that
Jones somehow had the cocaine. "Suspicion, no matter how strong,
is not enough. Convictions cannot rest upon speculation and
conjecture." Littlejohn v. Commonwealth, 24 Va. App. 401, 415,
482 S.E.2d 853, 860 (1997) (citations omitted). The evidence in
this case was wholly circumstantial and did not exclude the
reasonable hypothesis of innocence that another person left the
cocaine in the vehicle. Therefore, I would hold that the
circumstantial evidence does not prove beyond a reasonable doubt
that Jones possessed the cocaine. I dissent.
- 9 -