COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Elder and Lemons
Argued at Chesapeake, Virginia
ROBERT ROUNDY
MEMORANDUM OPINION * BY
v. Record No. 2695-98-1 JUDGE LARRY G. ELDER
DECEMBER 21, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
Robert W. Curran, Judge
(Kevin M. Diamonstein, on brief), for
appellant. Appellant submitting on brief.
(Mark L. Earley, Attorney General; Donald E.
Jeffrey, III, Assistant Attorney General, on
brief), for appellee. Appellee submitting on
brief.
Robert Roundy (appellant) appeals from his bench trial
conviction for possession of cocaine. On appeal, he contends
that the evidence was insufficient to prove he constructively
possessed the cocaine found in his shoe. We hold that the
circumstantial evidence was sufficient to exclude all reasonable
hypotheses of appellant's innocence, and we affirm his
conviction.
While on routine patrol at about 5:00 p.m. on May 15, 1998,
Officer Knight saw Mark Cheely driving a van. Knight believed
Cheely's license had been suspended, and after confirming
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
through the Department of Motor Vehicles (DMV) that his belief
was accurate, Knight stopped the van. As the van stopped,
Cheely changed places with appellant, a passenger. When Officer
Knight approached the van, he found appellant in the driver's
seat and Cheely kneeling between the driver's seat and the front
passenger seat. In the front passenger seat was a Ms. Holmes,
who said the van belonged to her.
Officer Knight told appellant he was under arrest for
obstruction of justice and asked for his driver's license.
Knight determined via a DMV check that appellant's license also
was suspended. Knight asked appellant, Cheely and Holmes to
step out of the vehicle, and he read appellant his Miranda
rights. He asked Holmes for permission to look inside the van,
and while doing so, he noticed a pair of white tennis shoes
located toward the rear of the van in front of the bench seat,
which was about four steps from the front. Appellant was the
only one of the three not wearing shoes, and Knight asked
appellant if he wanted his shoes. Appellant said yes, and when
Knight retrieved the shoes, he found inside a glass smoking
device that tested positive for cocaine. Next to the shoes was
a partially consumed cold beer. Knight smelled alcohol on all
the occupants of the vehicle. Appellant admitted that he
previously had smoked cocaine about ten times, but he did not
say whether the pipe was his.
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Appellant testified. He said he took the wheel when Cheely
suddenly pulled to a stop and told him to drive. Appellant said
that he did not know his own license was suspended. He claimed
that Cheely was the one drinking the beer and that, after Cheely
vacated the driver's seat, he went to the back of the van.
Appellant said that he put his shoes in the back of the van when
he entered earlier, that the pipe was not his, and that both
Cheely and Holmes were in the back of the van at various times.
The trial court convicted appellant of possession of cocaine and
sentenced him to five years with four years, nine months
suspended on condition of good behavior for ten years.
When considering the sufficiency of the evidence on appeal
in a criminal case, this Court views the evidence in the light
most favorable to the Commonwealth, granting to it all
reasonable inferences fairly deducible therefrom. See
Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534,
537 (1975). The credibility of a witness, the weight accorded
the testimony, and the inferences to be drawn from proven facts
are matters solely for the fact finder's determination. See
Long v. Commonwealth, 8 Va. App. 194, 199, 379 S.E.2d 473, 476
(1989). The fact finder is not required to believe all aspects
of a witness' testimony; it may accept some parts as believable
and reject other parts as implausible. See Pugliese v.
Commonwealth, 16 Va. App. 82, 92, 428 S.E.2d 16, 24 (1993).
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"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
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 under Code § 18.2-250; instead,
the statute criminalizes possession of illegal drugs of any
duration that is constructive or joint. See Gillis v.
Commonwealth, 215 Va. 298, 302, 208 S.E.2d 768, 771 (1974);
Josephs v. Commonwealth, 10 Va. App. 87, 99, 390 S.E.2d 491, 497
(1990) (en banc).
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.'"
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)). Neither close proximity to illegal
drugs nor occupancy of an automobile in which they are found,
standing alone, amounts to "possession" of such drugs under Code
§ 18.2-250; however, both are factors that may be considered in
determining whether possession occurred in a particular case.
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See Castaneda, 7 Va. App. at 583-84, 376 S.E.2d at 87. Such
circumstantial evidence may be sufficient to prove possession,
as long as it excludes all reasonable hypotheses of innocence
flowing from the evidence. See Higginbotham, 216 Va. at 352-53,
218 S.E.2d at 537 (quoting LaPrade v. Commonwealth, 191 Va. 410,
418, 61 S.E.2d 313, 316 (1950)).
We hold that the evidence, viewed in the light most
favorable to the Commonwealth, was sufficient to prove appellant
constructively possessed the cocaine. The trial court was free
to accept appellant's testimony that he had smoked cocaine in
the past and to reject appellant's testimony that the pipe was
not his and that the shoes had been unattended in the back of
the van for an extended period of time. Although the court's
rejection of appellant's testimony did not provide affirmative
evidence of appellant's guilt, see, e.g., Tucker v.
Commonwealth, 18 Va. App. 141, 144, 442 S.E.2d 419, 421 (1994),
the remaining evidence excluded all reasonable hypotheses of
innocence. The evidence established that that the cocaine pipe
was in appellant's shoe; that appellant was familiar with
cocaine, having smoked it several times in the past; that a cold
beer was sitting next to appellant's shoe; and that appellant
had alcohol on his breath. The evidence also established that
appellant moved about in the van after the officer signaled it
to pull over. The only reasonable hypothesis flowing from this
evidence is that appellant was aware of both the presence and
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character of the cocaine pipe in his shoe and that it was
subject to his dominion and control.
For these reasons, we hold that the evidence is sufficient
to prove appellant's constructive possession of the cocaine
found in his shoe, and we affirm his conviction.
Affirmed.
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