COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Annunziata and Bumgardner Argued at Norfolk, Virginia
STEPHEN EUGENE CLARK, S/K/A STEPHEN E. CLARK, JR. MEMORANDUM OPINION * BY v. Record No. 0918-98-1 JUDGE ROSEMARIE ANNUNZIATA APRIL 27, 1999 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF WILLIAMSBURG AND COUNTY OF JAMES CITY Samuel Taylor Powell, III, Judge
C. Thomas Turbeville (D. R. Dansby, Ltd., on brief), for appellant.
Donald E. Jeffrey, III, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.
Stephen Eugene Clark ("defendant") appeals his conviction by
bench trial of possession of cocaine in violation of Code
§ 18.2-250 on the ground that the evidence was insufficient to
support it. Finding no error, we affirm.
The evidence, viewed in the light most favorable to the
Commonwealth, see Jenkins v. Commonwealth, 255 Va. 516, 521, 499
S.E.2d 263, 265 (1998), establishes that the defendant's vehicle
was stopped by Officer Jake Rice of the James City County Police
Department on September 23, 1997 at approximately 11:54 p.m.
* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. Officer Rice conducted the stop after observing the defendant’s
vehicle “sitting” in a road with its headlights on and after
determining that the defendant, the registered owner of the
vehicle, had a suspended operator’s license. The defendant was
driving the vehicle at the time of the stop.
When asked to produce his operator’s license and car
registration, the defendant began searching for the items on the
back seat and floorboard of the vehicle, which held stacks of
papers bearing his name and a variety of bags. When the officer
asked the defendant whether he knew his license was suspended, the
defendant asserted that his license was not suspended and that it
had been reinstated. As Officer Rice requested the defendant’s
driving record from the dispatch center, he noticed the defendant
“digging in towards the back of the car” and floorboard section
through the bags and papers in that section of the car. Officer
Rice asked the defendant whether there were any drugs in his car.
The defendant replied, “no.” The officer asked the defendant for
permission to search the vehicle. The defendant gave consent to
the search and exited the vehicle, remaining behind the car while
the search was conducted.
Officer Rice found a twelve-ounce Dr. Pepper can under a
console between the driver’s and passenger’s side of the vehicle
and a twelve-ounce Malt Liquor beer can under the passenger seat.
Both cans had several "holes punched in the side” and contained an
odorless, burnt residue. Neither can was in plain view when
- 2 - found. Based on his training and experience, Officer Rice
testified that such cans are "known to be used for smoking crack
cocaine.” Ultimately, the residue tested positive for cocaine.
Upon discovery of the cans, Officer Rice arrested the
defendant for possession of cocaine and driving with a suspended
license. Officer Rice told the defendant of the discovery of the
cans and advised him of the charges underlying the arrest. After
the officer advised the defendant of his Miranda rights, the
defendant admitted knowledge of the cans’ presence in the car,
explaining that someone else had put them there. The defendant
also advised Officer Rice that he did not smoke cocaine.
In his testimony, Officer Rice conceded that, because the
cocaine residue was odorless, someone who did not use cocaine
would not likely be able to tell the cans contained cocaine. He
noted that the cans would have some type of odor if they had been
used to smoke marijuana.
On appeal, the defendant contends the evidence is
insufficient to support his conviction because the Commonwealth
failed to prove that he was aware of the character of the residue
on the cans discovered in his car. We disagree.
“The judgment of a trial court sitting without a jury is
entitled to the same weight as a jury verdict and will not be set
aside unless it appears from the evidence the judgment is plainly
wrong or without evidence to support it.” Martin v. Commonwealth,
4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987). When the
- 3 - sufficiency of evidence is challenged on appeal, the appellate
court considers the evidence in the light most favorable to the
Commonwealth and grants it all reasonable inferences deducible
from that evidence. See Parks v. Commonwealth, 221 Va. 492, 498,
270 S.E.2d 755, 759 (1980), cert. denied, 450 U.S. 1029 (1981).
The credibility of the witnesses and the weight accorded their
testimony are matters solely within the province of the trial
court. See Bridgeman v. Commonwealth, 3 Va. App. 523, 528, 351
S.E.2d 598, 601 (1986). An appellate court does not substitute
its own judgment for that of the trial court. See Collins v.
Commonwealth, 13 Va. App. 177, 178, 409 S.E.2d 175, 175 (1991).
To support a conviction based upon constructive possession of
drugs, “‘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 substance and that it was
subject to his dominion and control.’” Langston v. Commonwealth,
28 Va. App. 276, 285, 504 S.E.2d 380, 384 (1998) (quoting Drew v.
Commonwealth, 230 Va. 471, 473, 338 S.E.2d 844, 845 (1986)).
“Although mere proximity to the drugs is insufficient to establish
possession, and occupancy of [a] vehicle does not give rise to a
presumption of possession, both are factors which may be
considered in determining whether a defendant possessed drugs.”
Josephs v. Commonwealth, 10 Va. App. 87, 100, 390 S.E.2d 491, 498
(1990) (en banc).
- 4 - Here, the evidence establishes that Officer Rice stopped the
defendant in a car registered in his name. At the time of the
stop, the defendant was the sole occupant of his vehicle, which
contained a multitude of papers bearing his name. After observing
the defendant “digging through” the bags and papers in the rear
seat, ostensibly in response to the officer’s request for his
driver’s license and registration, Officer Rice asked the
defendant to step out of the car and, upon searching the car,
found two cans containing cocaine residue hidden from plain view
in separate places within the passenger compartment; one was under
the front passenger seat and the other was in the console between
the driver and front passenger seats of the vehicle. These cans
were noticeably modified for the purpose of using them as a
smoking device, and the defendant admitted that he knew of their
presence. Based on the defendant’s knowledge of the cans’
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COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Annunziata and Bumgardner Argued at Norfolk, Virginia
STEPHEN EUGENE CLARK, S/K/A STEPHEN E. CLARK, JR. MEMORANDUM OPINION * BY v. Record No. 0918-98-1 JUDGE ROSEMARIE ANNUNZIATA APRIL 27, 1999 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF WILLIAMSBURG AND COUNTY OF JAMES CITY Samuel Taylor Powell, III, Judge
C. Thomas Turbeville (D. R. Dansby, Ltd., on brief), for appellant.
Donald E. Jeffrey, III, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.
Stephen Eugene Clark ("defendant") appeals his conviction by
bench trial of possession of cocaine in violation of Code
§ 18.2-250 on the ground that the evidence was insufficient to
support it. Finding no error, we affirm.
The evidence, viewed in the light most favorable to the
Commonwealth, see Jenkins v. Commonwealth, 255 Va. 516, 521, 499
S.E.2d 263, 265 (1998), establishes that the defendant's vehicle
was stopped by Officer Jake Rice of the James City County Police
Department on September 23, 1997 at approximately 11:54 p.m.
* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. Officer Rice conducted the stop after observing the defendant’s
vehicle “sitting” in a road with its headlights on and after
determining that the defendant, the registered owner of the
vehicle, had a suspended operator’s license. The defendant was
driving the vehicle at the time of the stop.
When asked to produce his operator’s license and car
registration, the defendant began searching for the items on the
back seat and floorboard of the vehicle, which held stacks of
papers bearing his name and a variety of bags. When the officer
asked the defendant whether he knew his license was suspended, the
defendant asserted that his license was not suspended and that it
had been reinstated. As Officer Rice requested the defendant’s
driving record from the dispatch center, he noticed the defendant
“digging in towards the back of the car” and floorboard section
through the bags and papers in that section of the car. Officer
Rice asked the defendant whether there were any drugs in his car.
The defendant replied, “no.” The officer asked the defendant for
permission to search the vehicle. The defendant gave consent to
the search and exited the vehicle, remaining behind the car while
the search was conducted.
Officer Rice found a twelve-ounce Dr. Pepper can under a
console between the driver’s and passenger’s side of the vehicle
and a twelve-ounce Malt Liquor beer can under the passenger seat.
Both cans had several "holes punched in the side” and contained an
odorless, burnt residue. Neither can was in plain view when
- 2 - found. Based on his training and experience, Officer Rice
testified that such cans are "known to be used for smoking crack
cocaine.” Ultimately, the residue tested positive for cocaine.
Upon discovery of the cans, Officer Rice arrested the
defendant for possession of cocaine and driving with a suspended
license. Officer Rice told the defendant of the discovery of the
cans and advised him of the charges underlying the arrest. After
the officer advised the defendant of his Miranda rights, the
defendant admitted knowledge of the cans’ presence in the car,
explaining that someone else had put them there. The defendant
also advised Officer Rice that he did not smoke cocaine.
In his testimony, Officer Rice conceded that, because the
cocaine residue was odorless, someone who did not use cocaine
would not likely be able to tell the cans contained cocaine. He
noted that the cans would have some type of odor if they had been
used to smoke marijuana.
On appeal, the defendant contends the evidence is
insufficient to support his conviction because the Commonwealth
failed to prove that he was aware of the character of the residue
on the cans discovered in his car. We disagree.
“The judgment of a trial court sitting without a jury is
entitled to the same weight as a jury verdict and will not be set
aside unless it appears from the evidence the judgment is plainly
wrong or without evidence to support it.” Martin v. Commonwealth,
4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987). When the
- 3 - sufficiency of evidence is challenged on appeal, the appellate
court considers the evidence in the light most favorable to the
Commonwealth and grants it all reasonable inferences deducible
from that evidence. See Parks v. Commonwealth, 221 Va. 492, 498,
270 S.E.2d 755, 759 (1980), cert. denied, 450 U.S. 1029 (1981).
The credibility of the witnesses and the weight accorded their
testimony are matters solely within the province of the trial
court. See Bridgeman v. Commonwealth, 3 Va. App. 523, 528, 351
S.E.2d 598, 601 (1986). An appellate court does not substitute
its own judgment for that of the trial court. See Collins v.
Commonwealth, 13 Va. App. 177, 178, 409 S.E.2d 175, 175 (1991).
To support a conviction based upon constructive possession of
drugs, “‘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 substance and that it was
subject to his dominion and control.’” Langston v. Commonwealth,
28 Va. App. 276, 285, 504 S.E.2d 380, 384 (1998) (quoting Drew v.
Commonwealth, 230 Va. 471, 473, 338 S.E.2d 844, 845 (1986)).
“Although mere proximity to the drugs is insufficient to establish
possession, and occupancy of [a] vehicle does not give rise to a
presumption of possession, both are factors which may be
considered in determining whether a defendant possessed drugs.”
Josephs v. Commonwealth, 10 Va. App. 87, 100, 390 S.E.2d 491, 498
(1990) (en banc).
- 4 - Here, the evidence establishes that Officer Rice stopped the
defendant in a car registered in his name. At the time of the
stop, the defendant was the sole occupant of his vehicle, which
contained a multitude of papers bearing his name. After observing
the defendant “digging through” the bags and papers in the rear
seat, ostensibly in response to the officer’s request for his
driver’s license and registration, Officer Rice asked the
defendant to step out of the car and, upon searching the car,
found two cans containing cocaine residue hidden from plain view
in separate places within the passenger compartment; one was under
the front passenger seat and the other was in the console between
the driver and front passenger seats of the vehicle. These cans
were noticeably modified for the purpose of using them as a
smoking device, and the defendant admitted that he knew of their
presence. Based on the defendant’s knowledge of the cans’
presence, the trier of fact was entitled to infer that he was
aware of the character of the cocaine residue. See id. at 101,
390 S.E.2d at 498-99 (“Possession of a controlled drug gives rise
to an inference of the defendant’s knowledge of its character.”).
Notwithstanding this evidence, the defendant contends the
Commonwealth failed to rebut the reasonable hypothesis of
innocence that someone else brought the cans into his car without
his knowledge that they contained cocaine residue. The defendant
bases this claim on his statements that he did not smoke cocaine
- 5 - and that “someone else” placed the cans in his car, as well as
Officer Rice’s testimony that a “plain person” might not realize
that the cans contained cocaine residue.
When the Commonwealth proceeds on the basis of circumstantial
evidence, it “need only exclude reasonable hypotheses of innocence
that flow from the evidence, not those that spring from the
imagination of the defendant.” Patrick v. Commonwealth, 27 Va.
App. 655, 662, 500 S.E.2d 839, 843 (1998). The reasonableness of
the hypothesis is a question of fact. See Cantrell v.
Commonwealth, 7 Va. App. 269, 290, 373 S.E.2d 328, 339 (1988).
Absent credible evidence supporting such a hypothesis, “‘[t]he
Commonwealth is not required to prove that there is no possibility
that someone else may have planted, discarded, abandoned or placed
the drugs and paraphernalia in the [vehicle].’” Langston, 28 Va.
App. at 286, 504 S.E.2d at 384 (citation omitted).
Here, no credible evidence supports the defendant’s
hypothesis that someone else placed the cans inside his car. The
trial court was not required to accept in toto the defendant’s
statements and was entitled to rely on them in whole or in part or
to reject them completely. See Rollston v. Commonwealth, 11 Va.
App. 535, 547, 399 S.E.2d 823, 830 (1991). Thus, when viewed in
the light most favorable to the Commonwealth, the defendant’s
statement that “someone else” placed the cans in his car must be
viewed as an attempt to conceal his guilt. See id. (finding that
- 6 - a defendant’s exculpatory statement, when viewed in the light most
favorable to the Commonwealth, “must be interpreted . . . as mere
fabrications to conceal guilt . . .”). Finally, given the
defendant’s representation to police that he had a valid
operator’s license when his driving record showed that his license
had been suspended, the trial court was entitled to infer that the
defendant was lying at the time of the stop to conceal his guilt
with respect to the instant offense. See Pearson v. Commonwealth,
221 Va. 936, 946, 275 S.E.2d 893, 900 (1981); Burgess v.
Commonwealth, 14 Va. App. 1018, 1025, 421 S.E.2d 664, 668 (1992)
(“[W]here a defendant gives a false account of circumstances
surrounding a crime, the trial court is entitled to infer that the
defendant lied to conceal his guilt.”).
In sum, based on the defendant’s knowledge of the cans’
presence in his car, the defendant’s suspicious movements inside
his car while police attempted to obtain his driving record, the
discovery of the cans inside the car and hidden from plain view,
the defendant’s sole ownership and occupancy of the vehicle and
its contents, the defendant’s close proximity to the cans, and the
inferences the trial court was entitled to draw from the
defendant’s statements that “someone else” placed the cans in his
car and that he didn’t smoke cocaine, we find that the evidence
was sufficient to prove beyond a reasonable doubt that the
defendant was aware of the character of the residue found on the
- 7 - cans. See Iglesias v. Commonwealth, 7 Va. App. 93, 110, 372
S.E.2d 170, 179-80 (1988) (finding sufficient evidence of
possession based on the defendant’s sole occupancy of a rental
car, admission that everything in the car belonged to him,
contradictory statements concerning a package in the car that
contained drugs, and ultimate admission that the package was given
to him to deliver to an unknown person notwithstanding his further
statement that he did not know what the package contained).
Accordingly, the conviction is affirmed.
Affirmed.
- 8 -