COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Bumgardner and Humphreys
Argued at Richmond, Virginia
OSSIE LEE RICHARDSON
MEMORANDUM OPINION * BY
v. Record No. 2440-00-2 JUDGE ROBERT J. HUMPHREYS
OCTOBER 30, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF HENRICO COUNTY
George F. Tidey, Judge
C. David Whaley (Anthony G. Spencer;
Morchower, Luxton & Whaley, on briefs), for
appellant.
Michael T. Judge, Assistant Attorney General
(Randolph A. Beales, Attorney General, on
brief), for appellee.
Ossie Lee Richardson appeals his conviction, after a bench
trial, for possession of cocaine. Richardson contends that the
trial court erred in finding the evidence sufficient to convict
him of the offense. We disagree and affirm his conviction.
Where the sufficiency of the evidence is
challenged after conviction, it is our duty
to consider it in the light most favorable to
the Commonwealth and give it all reasonable
inferences fairly deducible therefrom. We
should affirm the judgment unless it appears
from the evidence that the judgment is
plainly wrong or without evidence to support
it.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534,
537 (1975). Furthermore, "[w]itness credibility, the weight
accorded the testimony and the inferences to be drawn from proven
facts are matters to be determined by the fact finder, and the
trial court's judgment will not be disturbed on appeal unless it
is plainly wrong or without evidence to support it." Sapp v.
Commonwealth, 35 Va. App. 519, 526, 546 S.E.2d 245, 249 (2001)
(citing Code § 8.01-680; Long v. Commonwealth, 8 Va. App. 194,
199, 379 S.E.2d 473, 476 (1989)).
So viewed, the evidence presented at trial established that
on February 21, 2000, at approximately 10:00 a.m., Henrico County
Police Officer E.C. Krevonick, while on routine patrol, observed
a car parked in front of a hotel room in the parking lot of a
Ramada Inn, with a defective tail-light. Officer Krevonick
stopped the car and found three individuals in the car, the
driver, Richardson and a female passenger. The driver gave
Krevonick permission to search the car. Accordingly, the three
passengers got out of the vehicle. Each of the passengers,
including Richardson, then gave Officer Krevonick permission to
search their persons. Officer Krevonick found nothing
incriminating upon searching the driver and Richardson, but
determined that the female passenger had been previously banned
from the property. Krevonick escorted the female off the
property. Upon returning, he explained to the driver and
Richardson that the area was known to be a high drug-traffic
- 2 -
area. The driver indicated that he was unaware of that fact,
then he and Richardson returned to the car and left the premises.
Approximately two hours later, Officer Krevonick observed
the same car "in front of the room again." After observing the
car for a few minutes, Officer Krevonick saw Richardson, the
driver and a female leave the room and get in the car. Krevonick
then approached the passenger side of the car and asked why they
had returned to the area. After some discussion, Krevonick again
asked for consent to search the car and the driver agreed. As
Richardson began to get out of the front passenger seat,
Krevonick observed him "ben[d] down with his hand and [drop] a
glass vial onto the ground." Krevonick then attempted to detain
Richardson, and a struggle ensued. During the struggle,
"[Richarson] took his left foot and smashed the [glass vial] on
the ground."
During his testimony at trial, Officer Krevonick, who had
observed such items before, referred to the glass vial as a
"round thin pipe, commonly used to smoke crack cocaine." He
described it as "all glass," and stated "it, uh, looked like it
had - usually people use what's called Chore Boy to filter the
crack cocaine and it appeared that it had that inside of it with
the residues, black-looking." Richardson raised no objection to
Krevonick's characterization of the vial. Krevonick also
testified that during his first encounter with Richardson,
- 3 -
earlier that morning, Richardson had told him that he had smoked
crack cocaine on occasion.
Krevonick arrested Richardson and advised him of his Miranda
rights. He then found the broken glass and "picked up the
pieces." When asked by the prosecutor if he had talked to
Richardson about "the piece of evidence [he had] found,"
Krevonick testified that Richardson said "it was not his, that he
did not drop it."
Krevonick took the evidence to the police station to be
checked into "Property." It was then taken to the state forensic
laboratory for analysis. The certificate of analysis described
the evidence submitted by Officer Krevonick as follows:
Item 2 One (1) sealed yellow envelope
containing one (1) sealed plastic evidence
bag containing pieces of glass, a black
plastic tube and a piece of copper wool, each
containing residue
RESULTS:
* * * * * * *
Item 2 Cocaine (Schedule II).
Krevonick testified that he did not know where the black
plastic tube or copper wool had come from. 1 He conceded that the
only item he saw Richardson drop was "a glass vial that was in
1
Officer Krevonick testified that he had taken a
photograph of the material he had picked up off the ground and
stated, after reviewing the photograph, that the black plastic
tube and the copper wool appeared in the photo with the broken
glass. However, the photograph was not admitted into evidence as
an exhibit.
- 4 -
his hand." Officer Krevonick stated that the black plastic tube
and the copper wool could have been inside the glass tube, but he
had "no idea," because Richardson had stepped on the glass vial.
At the close of the Commonwealth's case and at the close of
the evidence, Richardson raised a motion to strike pointing out
that Officer Krevonick did not know where the black plastic tube
had come from, but that he took "all three of the items, [and]
place[d] them in the bag." He contended "you don't know which
one of those items [was] tested at the lab, because the lab
report doesn't reflect that," and stated, "I think it defies
logic to think that they tested everything. But yet the burden
of proof is on them to show that they tested the particular piece
of glass that he possessed, and that would be our motion to
strike." The trial court overruled each motion, noting that the
certificate of analysis stated "[e]ach" of the submitted items
contained residue, which tested positive for cocaine. Richardson
was subsequently found guilty and sentenced to nine months in
jail.
On appeal Richardson argues that the trial court erred in
finding the evidence sufficient to establish that he knowingly
and intentionally possessed the cocaine. Specifically,
Richardson contends that the certificate of analysis is ambiguous
and that, therefore, the Commonwealth failed to prove that the
pieces of glass were analyzed and contained cocaine. In the
alternative, Richardson argues that by placing the glass pieces
- 5 -
in the plastic evidence bag, with a black plastic tube containing
residue, Officer Krevonick could have contaminated the glass.
We first note that "[t]he Commonwealth may prove possession
of a controlled substance by showing either actual or
constructive possession." Barlow v. Commonwealth, 26 Va. App.
421, 429, 494 S.E.2d 901, 904 (1998). Here, there is no question
that Richardson actually possessed the glass vial. The
uncontradicted testimony of Officer Krevonick establishes that
Richardson had the vial in his hand when he got out of the car,
that he bent down toward the ground and dropped it, and then
crushed the vial with his foot during his struggle with
Krevonick. Thus, the only relevant issue is whether the evidence
presented by the Commonwealth was sufficient to establish that
the vial contained cocaine. We agree with the trial court and
find that it was.
The certificate of analysis unambiguously states that "each"
of the items contained in the bag contained "residue." The
result of the analysis clearly states that this "residue" tested
positive for cocaine. Although the certificate does not
explicitly set forth each item and state that the residue on each
particular item contained cocaine, we find that a plain reading
of the report supports the trial court's conclusion that each of
the items was tested and that residue found on each of the items
tested positive for cocaine. Moreover, Richardson's attempt to
get rid of the glass vial and/or to destroy it tends to
- 6 -
demonstrate his guilty knowledge regarding the cocaine residue on
the vial, and further supports the trial court's determination.
See Pearson v. Commonwealth, 221 Va. 936, 946, 275 S.E.2d 893,
900 (1981) ("In all cases of circumstantial evidence the conduct
of the accused is always an important factor in the estimate of
the weight of circumstances which point to his guilt." (quoting
Dean v. Commonwealth, 73 Va. (32 Gratt.) 912, 923 (1879))).
Finally, we do not address Richardson's alternative argument
concerning the alleged contamination of the glass as Richardson
failed to raise a contamination argument before the trial court.
See Rule 5A:18; see also Buck v. Commonwealth, 247 Va. 449,
452-53, 443 S.E.2d 414, 416 (1994) (holding that an appellate
court will not consider an argument on appeal different from one
raised at trial even if it is related to the same issue).
Indeed, Richardson's only argument before the trial court
consisted of his theory that the certificate of analysis failed
to identify with particularity whether the glass had been tested,
and whether it contained cocaine residue in and of itself. As we
have found that it does, we affirm the decision of the trial
court.
Affirmed.
- 7 -
Ossie Lee Richardson v. Commonwealth of Virginia
Combined Opinion