COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Annunziata and Senior Judge Cole
Argued at Richmond, Virginia
HENRY EDWARD GARDNER
MEMORANDUM OPINION * BY
v. Record No. 1244-97-2 JUDGE ROSEMARIE ANNUNZIATA
MAY 5, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF BUCKINGHAM COUNTY
Richard S. Blanton, Judge
(Robert H. Gray, Jr., on brief), for
appellant. Appellant submitting on brief.
Robert H. Anderson, III, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Appellant, Henry Edward Gardner, appeals his conviction of
possession, while an inmate confined in a state correctional
facility, of an instrument not authorized by the Superintendent
which was capable of causing death or bodily harm in violation of
Code § 53.1-203. He alleges that the evidence presented at trial
was insufficient to support his conviction. Finding no error, we
affirm.
We confine our statement of the facts to those relevant to
the issue on appeal. The facts and all reasonable inferences
fairly deducible from them are stated in the light most favorable
to the Commonwealth, the party prevailing below. Traverso v.
Commonwealth, 6 Va. App. 172, 176, 355 S.E.2d 719, 721 (1988).
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
Appellant was confined as an inmate at the Buckingham
Correctional Center on January 1, 1996. On that date, appellant
and another inmate, Richard Nahwooksky, walked together toward
appellant's cell. As they walked up a stairwell which Nahwooksky
described as one of the "blind spots [at the facility] where the
police can't really see," appellant kicked a bag and, upon
opening it, found that it contained a knife. Appellant picked up
the knife with the intention of turning it over to prison
authorities so that he might receive a "time cut or get some
extra good time" credited against his prison sentence.
Shortly after appellant returned to his cell, Officer G.T.
Scott conducted a routine "shakedown" of appellant's cell. Scott
observed appellant drop something down into his pants as he
approached the defendant's cell. Upon searching the appellant,
Scott discovered the knife hidden under appellant's pants. When
Scott discovered the knife, appellant gave no explanation about
his possession of the knife or his intentions with regard to it.
Appellant contends that the Commonwealth failed to prove his
possession of the knife was unauthorized as required by
statute. 1 We disagree.
1
Section 53.1-203 provides in relevant part:
It shall be unlawful for a prisoner in a
state, local or community correctional
facility or in the custody of an employee
thereof to:
* * * * * * *
4. Make, procure, secrete, or have in
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The elements of the crime for which the appellant was
convicted may be proved by direct or circumstantial evidence.
See Coleman v. Commonwealth, 226 Va. 31, 53, 307 S.E.2d 864, 876
(1983) ("Circumstantial evidence is as competent and is entitled
to as much weight as direct evidence, provided it is sufficiently
convincing to exclude every reasonable hypothesis except that of
guilt."). When circumstantial evidence is relied upon to
establish guilt, all reasonable hypotheses of innocence must be
excluded. Byers v. Commonwealth, 23 Va. App. 146, 152, 474
S.E.2d 852, 854 (1996) (citing Moran v. Commonwealth, 4 Va. App.
310, 314, 357 S.E.2d 551, 553 (1987)). While no witness for the
Commonwealth expressly testified that the knife appellant
possessed was unauthorized by the superintendent, the
circumstantial evidence in the case was sufficient to sustain the
conviction beyond a reasonable doubt.
The following evidence presented by the appellant in the
case at bar, and the reasonable inferences it raises, establishes
that the possession of the knife was unauthorized: (1) appellant
acknowledged that he picked up the knife and kept it for the
purposes of being credited "good time"; (2) he explained his
reason for picking the knife up stating that "prison is
violent . . . . It's not a good thing to just leave things like
his possession a knife, instrument, tool or
other thing not authorized by the
superintendent or sheriff which is capable of
causing death or bodily injury.
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this there,"; and (3) he explained his reason for not immediately
turning the knife over to prison officials as "You don't rat on
somebody for anything." This evidence raises the reasonable
inference that appellant's possession of the knife was
unauthorized and in violation of prison rules.
In addition, the Commonwealth's evidence supports the clear
inference that appellant's possession of the knife was
unauthorized. Appellant attempted to conceal the knife in his
pants when he was approached by Officer Scott who was about to
conduct a shakedown search of his cell. Upon finding the knife,
Scott put it into a bag for confiscated items. Finally,
Nahwooksky testified that when appellant took and kept the knife
with the stated intention of getting a "time cut," Nahwooksky
tried to persuade appellant to "leave it alone," noting there was
"no telling what's happening with this knife." Nahwooksky also
gave the following explanation of the basis upon which an
inmate's request for a time cut would be considered:
Usually when an inmate says they are going to
try to get a time cut, they find . . . a
weapon or they know some type of knowledge
about something that seriously is going to
hurt somebody or involve the security matter
in the institution.
(Emphasis added).
Finally, during closing argument defense counsel
substantially conceded the point when he argued: "[The
Commonwealth's Attorney] rightfully says if you look at the
instruction about what it does take to prove the case, it looks
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like they've got it, A, B, and C, inmate, had a weapon, not
authorized, capable of causing harm. That's there. It's there.
I can't blink it away. I can't pretend like it's not there."
(Emphasis added). Accordingly, we affirm appellant's conviction.
Affirmed.
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