COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Annunziata and Bumgardner
Argued at Norfolk, Virginia
JAMES EDWARD BURKE
OPINION BY
v. Record No. 0291-98-1 JUDGE RUDOLPH BUMGARDNER, III
JUNE 22, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE
William L. Forbes, Judge
Jennifer T. Stanton (J.T. Stanton, P.C., on
brief), for appellant.
Richard B. Campbell, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
James Edward Burke appeals his conviction after a bench
trial of possession of cocaine. He challenges the denial of his
motion to suppress and argues that the evidence was not
sufficient to support the conviction. We conclude that the
trial court did not err and affirm the conviction.
On appeal, we view the evidence in the light most favorable
to the Commonwealth and grant to it all reasonable inferences
fairly deducible therefrom. See Archer v. Commonwealth, 26 Va.
App. 1, 11, 492 S.E.2d 826, 831 (1997). We discard the evidence
of the accused in conflict with that of the Commonwealth, see
Cirios v. Commonwealth, 7 Va. App. 292, 295, 373 S.E.2d 164, 165
(1988), and do not substitute our judgment for that of the fact
finder. See Cable v. Commonwealth, 243 Va. 236, 239, 415 S.E.2d
218, 220 (1992).
Christopher Zombar was a private security guard working at
a private apartment complex. His job was to “clear up hallways
and loitering and stuff.” At 11:30 p.m. during his routine
inspection rounds, he saw the defendant and Jermaine Chambley in
the upstairs hallway of a two-story building. The guard was at
the bottom of the lit staircase and saw the two bending over as
if they were playing dice. He approached to determine what they
were doing and whether they resided in the building.
The guard thought the defendant was rolling a cigarette and
asked whether it was marijuana. The defendant said it was not
marijuana but did not drop it when told to do so. The defendant
said he was leaving, came running down the steps, and tried to
push past the guard, who blocked his way. They got in a scuffle
that did not end until a second guard arrived and sprayed mace
on the defendant. The first guard arrested the defendant for
assault and handcuffed him. During the fight the defendant had
tried to take off his jacket but was unable to do so. The guard
searched in the jacket pocket and found a baggy that later
tested positive for cocaine. He gave it to the police when they
arrived.
The defendant argues that the trial court erred in denying
his motion to suppress. He argues that the guard did not have
reasonable and articulable suspicion that he was committing a
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crime, had no suspicion that he was armed, and no probable cause
to believe the defendant had committed a felony. He argues that
the guard was either an agent of the state and acted in
violation of the Fourth and Fourteenth Amendments or that the
guard was a private citizen and lacked authority to make a
citizen’s arrest. He contends in either case that the trial
court should have excluded the evidence found by the guard.
The exclusionary rule only applies when a defendant is
deprived of constitutional rights. See Thompson v.
Commonwealth, 10 Va. App. 117, 122, 390 S.E.2d 198, 201 (1990).
Only government action implicates these rights. See United
States v. Jacobsen, 466 U.S. 109, 113 (1984). Accordingly, a
search by a private citizen does not involve the Fourth
Amendment, and the exclusionary rule does not apply to evidence
discovered during such a search. See id. at 113-14; Mills v.
Commonwealth, 14 Va. App. 459, 463, 418 S.E.2d 718, 720 (1992).
The defendant concedes that the guard was acting in a private
capacity and that there was no evidence of any agency
relationship with the police. Thus, we find no merit in his
contention that his Fourth Amendment rights were violated.
Next, the defendant argues that the evidence was
insufficient to prove that he knew the nature and character of
the substance. The Commonwealth must prove that the defendant
was aware of the presence and character of the drug and that he
consciously and intentionally possessed it. See Josephs v.
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Commonwealth, 10 Va. App. 87, 99, 390 S.E.2d 491, 497 (1990) (en
banc).
The defendant concedes that he possessed the drug found in
his jacket pocket but claims there is no evidence that he knew
its nature and character. “Possession of a controlled drug
gives rise to an inference of the defendant’s knowledge of its
character.” Josephs, 10 Va. App. at 101, 390 S.E.2d at 498-99
(citations omitted). Constructive possession may be proven by
evidence of acts, declarations or conduct of the defendant from
which the fact finder may infer that he knew of the existence of
the drugs in the place where they were found. See Ritter v.
Commonwealth, 210 Va. 732, 741, 173 S.E.2d 799, 806 (1970).
Here, the security guard approached the defendant in the
staircase and asked whether he lived in the building and had
marijuana. He told the defendant to put the cigarette down and
to come downstairs. The defendant became belligerent, began
cursing, and tried to push past the guard. Before and during
the struggle that ensued, the defendant was trying to remove his
jacket. After the fight, the guards found drugs in his jacket
pocket. The guard found the item on the defendant’s person, in
the clothing he wore. The defendant's actions together with his
physical possession of the drug support the finding that he knew
its nature and character.
The trial court did not have to believe the defendant’s
version of the encounter with the guard. The fact finder
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evaluates the credibility of witnesses and the weight accorded
their testimony. See Bridgeman v. Commonwealth, 3 Va. App. 523,
528, 351 S.E.2d 598, 601 (1986). Further, the fact finder may
disbelieve the self-serving testimony of the accused and
conclude that he is lying to conceal his guilt. See Marable v.
Commonwealth, 27 Va. App. 505, 509-10, 500 S.E.2d 233, 235
(1998). Finally, the trial court is entitled to infer guilt
from the defendant’s attempt to leave when confronted by the
guard. See Clagett v. Commonwealth, 252 Va. 79, 93, 472 S.E.2d
263, 271 (1996), cert. denied, 117 S. Ct. 972 (1997) (following
the commission of a crime, the defendant’s flight is evidence of
guilt). We conclude that the evidence was sufficient to sustain
the conviction.
Affirmed.
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