COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Elder and Clements
Argued at Richmond, Virginia
OMAR RASHAR CARRINGTON
MEMORANDUM OPINION * BY
v. Record No. 1909-00-2 JUDGE LARRY G. ELDER
SEPTEMBER 18, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
William R. Shelton, Judge
Craig S. Cooley for appellant.
Eugene Murphy, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Omar Rashar Carrington (appellant) appeals from his bench
trial convictions for conspiring to distribute cocaine and
possessing cocaine with intent to distribute. On appeal, he
contends the evidence was insufficient to support his
convictions. We hold the evidence, viewed in the light most
favorable to the Commonwealth, was sufficient to support
appellant's convictions. Thus, we affirm.
Under familiar principles of appellate review, we must
examine the evidence in the light most favorable to the
Commonwealth, granting to its evidence all reasonable inferences
fairly deducible therefrom. Martin v. Commonwealth, 4 Va. App.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
438, 443, 358 S.E.2d 415, 418 (1987). Any element of a crime
may be proved by circumstantial evidence, e.g., Servis v.
Commonwealth, 6 Va. App. 507, 524, 371 S.E.2d 156, 165 (1988),
provided the evidence as a whole "is sufficiently convincing to
exclude every reasonable hypothesis except that of guilt,"
Coleman v. Commonwealth, 226 Va. 31, 53, 307 S.E.2d 864, 876
(1983).
In assessing witness credibility, the fact finder may
accept the parts of a witness' testimony it finds believable and
reject other parts as implausible. Moyer v. Commonwealth, 33
Va. App. 8, 28, 531 S.E.2d 580, 590 (2000) (en banc). "The fact
that a witness makes inconsistent statements . . . does not
render his testimony . . . unworthy of belief. . . . It is
firmly imbedded in the law of Virginia that the credibility of a
witness who makes inconsistent statements on the stand is a
question . . . for the . . . trier of the facts . . . ."
Swanson v. Commonwealth, 8 Va. App. 376, 378-79, 382 S.E.2d 258,
259 (1989). Similarly, "[d]etermining the credibility of
witnesses who give conflicting accounts is within the exclusive
province of the [fact finder], which has the unique opportunity
to observe the demeanor of the witnesses as they testify." Lea
v. Commonwealth, 16 Va. App. 300, 304, 429 S.E.2d 477, 479
(1993).
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A.
CONSPIRACY TO DISTRIBUTE COCAINE
"A conspiracy is defined as 'an agreement between two or
more persons by some concerted action to commit an offense.'"
Wright v. Commonwealth, 224 Va. 502, 505, 297 S.E.2d 711, 713
(1982) (quoting Falden v. Commonwealth, 167 Va. 542, 544, 189
S.E. 326, 327 (1937)). "In order to establish the existence of
a conspiracy, as opposed to mere aiding and abetting, the
Commonwealth must prove 'the additional element of preconcert
and connivance not necessarily inherent in the mere joint
activity common to aiding and abetting.'" Zuniga v.
Commonwealth, 7 Va. App. 523, 527, 375 S.E.2d 381, 384 (1988)
(quoting United States v. Peterson, 524 F.2d 167, 174 (4th Cir.
1975)). "The agreement is the essence of the conspiracy
offense," and "'the Commonwealth must prove beyond a reasonable
doubt that an agreement existed.'" Id. at 527-28, 375 S.E.2d at
384 (quoting Floyd v. Commonwealth, 219 Va. 575, 580, 249 S.E.2d
171, 174 (1978)).
Here, the evidence, viewed in the light most favorable to
the Commonwealth, established that Sherod Harrison and appellant
conspired to distribute cocaine to A.J. Starke, an undercover
police detective. When Starke contacted Harrison to purchase
"an eight-ball" of cocaine, Harrison did not have enough cocaine
in his possession to make such a sale. Harrison had a smaller
amount of cocaine in his possession, but he had obtained that
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cocaine from appellant and had not yet paid appellant for it.
Harrison then spoke to appellant "about whether . . . [he] could
get" the eight-ball of cocaine Starke wished to purchase, and
appellant said, "[W]e can do that." Thereafter, both appellant
and Harrison spoke to Starke on appellant's cellular telephone
to confirm their ability to make the sale, to negotiate the
price, and to make arrangements to meet to complete the
transaction. Harrison testified that he and appellant were "in
it together" and that appellant "knew that . . . [appellant was
the one who] was going to get the money [from the sale] . . .
because [Harrison] didn't have that type of product."
That portions of the testimony of Sherod Harrison, a
witness for the Commonwealth, may have conflicted with the
testimony of Detective Starke and Antonio Connor, who also were
witnesses for the Commonwealth, was not dispositive. The trial
court, as the finder of fact, was entitled to conclude Harrison
was testifying truthfully and to rely on Harrison's direct
testimony regarding his agreement with appellant in convicting
appellant of the conspiracy offense.
B.
POSSESSION OF COCAINE WITH INTENT TO DISTRIBUTE
"To convict a person of possession of illegal drugs 'the
Commonwealth must prove that the defendant was aware of the
presence and character of the drugs and that he intentionally
and consciously possessed them.'" Castaneda v. Commonwealth, 7
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Va. App. 574, 583, 376 S.E.2d 82, 86 (1989) (en banc) (quoting
Andrews v. Commonwealth, 216 Va. 179, 182, 217 S.E.2d 812, 814
(1975)).
Possession need not be actual, exclusive, or
lengthy in order to support a conviction;
instead, the statute criminalizes
constructive or joint possession of illegal
drugs of any duration. Constructive
possession of illegal drugs may be proven by
"'evidence of acts, statements, or conduct
of the accused or other facts or
circumstances which tend to show that the
[accused] was aware of both the presence and
character of the substance and that it was
subject to his dominion and control.'"
Wells v. Commonwealth, 32 Va. 775, 781, 531 S.E.2d 16, 19 (2000)
(quoting Burchette v. Commonwealth, 15 Va. App. 432, 434, 425
S.E.2d 81, 82 (1992) (quoting Drew v. Commonwealth, 230 Va. 471,
473, 338 S.E.2d 844, 845 (1986))).
Here, the evidence established that appellant had at least
constructive possession of both the cocaine thrown out of his
father's car as the police attempted to stop it and the cocaine
subsequently found beneath the seat he occupied at the time of
the stop. The evidence, viewed in the light most favorable to
the Commonwealth, established that the cocaine thrown out the
window belonged to both Harrison and appellant. Harrison had
obtained the cocaine from appellant and had not yet paid him for
it, and Harrison testified that both he and appellant owned the
cocaine. Thus, the evidence established that appellant was
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aware of the presence and character of the cocaine thrown from
the window and that he possessed it jointly with Harrison.
The evidence also established that appellant constructively
possessed the cocaine found beneath the vehicle's seat.
Harrison testified that he had seen appellant with cocaine in
his possession earlier in the day and that appellant indicated
he was able to help Harrison supply Detective Starke with an
eight-ball of cocaine. Harrison saw appellant with the cocaine
in his pocket and subsequently observed appellant "fiddling with
his pockets" when the police attempted to stop their vehicle on
the way to meet Starke to make the promised sale of cocaine.
Appellant had no drugs on his person at the time of his arrest.
After the three were arrested, Connor overheard appellant say
"[he] had put some under his seat," and Detectives Starke and
Brown found a bag containing cocaine beneath the seat in which
appellant had been sitting at the time of the stop. Both
Harrison and Connor testified the cocaine found beneath
appellant's seat did not belong to them. Thus, the only
reasonable hypothesis flowing from the evidence, viewed in the
light most favorable to the Commonwealth, is that appellant
actually and then constructively possessed the 7.242 grams of
cocaine found beneath his seat.
The same evidence which established the conspiracy also
proved appellant intended to distribute at least a portion of
the cocaine. As to the cocaine thrown from the window,
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appellant had allowed Harrison to take possession of it but
still retained an ownership interest in it and expected to
receive payment for it. Thus, his constructive possession of
this smaller bag of cocaine was with an intent to distribute.
In addition, the evidence established that appellant
intended to distribute a portion of the larger bag, the one
found beneath his seat, to Detective Starke. Harrison and
appellant agreed to sell Detective Starke an eight-ball, or
three-and-one-half grams of cocaine, but the cocaine in
Harrison's possession amounted to no more than one-and-one-half
grams. Appellant had actual or constructive possession of the
larger bag of cocaine as the trio traveled to meet Detective
Starke to consummate the sale. Thus, the only reasonable
hypothesis flowing from the evidence of appellant's agreement
with Harrison to provide Starke with an eight-ball was that
appellant intended to distribute a portion of the larger bag of
cocaine, as well.
For these reasons, we hold the evidence was sufficient to
support appellant's convictions for conspiracy to distribute
cocaine and possession of cocaine with intent to distribute.
Therefore, we affirm these convictions.
Affirmed.
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