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Docket Number

47421 No. 1221-90-1

Attorney(S)

W. Farley Powers, Jr. (Bashara Hubbard, on brief), for appellant. Michael T. Judge, Assistant Attorney General (Mary Sue Terry, Attorney General, on brief) for appellee.

Judges

Benton, J., dissenting.

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Smart Summary

Reginald Collins v. Commonwealth of Virginia — Court of Appeals of Virginia (Sept. 24, 1991)

Factual and Procedural Background

Reginald Collins was tried in a bench trial in the Circuit Court of the City of Virginia Beach (Judge Austin E. Owen) and convicted of possession of cocaine with intent to distribute and a related charge of possession of a firearm while in possession of cocaine. On October 26, 1989, members of the Virginia Beach Police Department's special investigator's unit went to an apartment complex. Detective Huston observed Collins in a vehicle in a dimly lit parking lot, stopped approximately thirty feet away, and saw Collins sitting sidesaddle in the front seat. As Collins exited the vehicle, Detective Huston observed a throwing motion under the vehicle with Collins' right arm. Detective Smith retrieved from beneath the vehicle a plastic baggie containing fourteen smaller baggies of a white substance. A Bureau of Forensic Science certificate of analysis identified the contents as approximately 1.9 grams of cocaine. Collins was arrested; his car was towed, and an inventory search revealed a .357 caliber Smith & Wesson revolver in the vehicle. Collins appealed, arguing the evidence was insufficient to prove possession with intent to distribute; the Court of Appeals affirmed the convictions.

Legal Issues Presented

Whether the evidence was sufficient, beyond a reasonable doubt, to prove that Reginald Collins possessed cocaine with the intent to distribute.
Whether the evidence supported the related conviction for possession of a firearm while in possession of cocaine.

Arguments of the Parties

Appellant's Arguments

Collins contended the Commonwealth failed to prove possession beyond a reasonable doubt.
He emphasized that no witness saw contraband in his hand and that the officers observed only a hand motion in a dimly lit parking lot.
He argued the evidence did not eliminate the possibility that the cocaine was already under the car when officers arrived.

Appellee's (Commonwealth's) Position as Reflected in the Record

Detective Huston testified that he observed what he perceived as a throwing motion as Collins exited the vehicle and immediately thereafter the officers found the baggie under the vehicle.
The investigators recovered baggies from beneath Collins' car and forensic analysis identified the contents as cocaine, and a firearm was subsequently discovered in the vehicle during an inventory search.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975)	Standard for appellate review of sufficiency: review evidence in the light most favorable to the Commonwealth and give all reasonable inferences fairly deducible therefrom.	The court applied this standard in reviewing the bench-trial conviction and concluded the evidence, viewed in the Commonwealth's favor, created a question of fact supporting the conviction.
Crews v. Commonwealth, 3 Va. App. 531, 537, 352 S.E.2d 1, 4 (1987)	Support for appellate review standard (same principle as Higginbotham).	Used along with Higginbotham to frame the sufficiency-of-the-evidence review.
Schneider v. Commonwealth, 230 Va. 379, 382, 337 S.E.2d 735, 736-37 (1985)	Credibility and weight of witness testimony are matters solely for the factfinder.	The court relied on this principle to uphold the trial judge's assessment of Detective Huston's credibility and the weight given his testimony about the observed motion.
Garland v. Commonwealth, 225 Va. 182, 184, 300 S.E.2d 783, 784 (1983)	Circumstantial-evidence rule: all necessary circumstances proved must be consistent with guilt and inconsistent with innocence and exclude every reasonable hypothesis of innocence (quoted with Inge).	Invoked in the dissent to argue that the circumstantial evidence did not exclude reasonable hypotheses of innocence.
Inge v. Commonwealth, 217 Va. 360, 366, 228 S.E.2d 563, 567 (1976)	Support for the principle quoted in Garland regarding circumstantial evidence.	Quoted by the dissent as part of the standard for evaluating circumstantial evidence.
Behrens v. Commonwealth, 3 Va. App. 131, 135, 348 S.E.2d 430, 432 (1986)	Suspicious circumstances, including proximity to a controlled drug, are insufficient to support a conviction.	Referenced by the dissent to emphasize that mere suspicious circumstances do not suffice to prove guilt.
Massie v. Commonwealth, 140 Va. 557, 565, 125 S.E. 146, 148 (1924)	Where evidence leaves it indefinite which of several hypotheses is true, it cannot amount to proof beyond a reasonable doubt.	Quoted in the dissent to support the view that the evidence here established only a probability or suspicion, not proof beyond a reasonable doubt.

Court's Reasoning and Analysis

The majority applied the established sufficiency-of-the-evidence standard: it reviewed the record in the light most favorable to the Commonwealth and accepted all reasonable inferences favorable to the Commonwealth. The court emphasized that credibility and weight of testimony are for the factfinder. The trial judge, as factfinder in the bench trial, expressly found that Detective Huston observed a throwing motion by Collins and then immediately discovered the plastic baggies under the vehicle. Although Detective Huston acknowledged alternative possibilities (e.g., Collins could have been off balance or slipping), the trial court resolved those credibility questions against Collins. The trial court also discounted Collins' contention that the cocaine might already have been under the car, noting the high value of the contraband and the unlikelihood of its being abandoned in that location. On that basis, the majority concluded the evidence was sufficient to create a factual issue for the trier of fact and to support convictions for possession of cocaine with intent to distribute and the related firearm offense.

The opinion includes a dissent by Judge Benton, who stressed the detective's admissions that he saw nothing in Collins' hand, that the motion "could have been anything," and that the evidence was circumstantial. The dissent applied the rule that circumstantial evidence must exclude every reasonable hypothesis of innocence and concluded the proof did not meet the beyond-a-reasonable-doubt standard, arguing the convictions should be reversed.

Holding and Implications

AFFIRMED.

Direct effect: The Court of Appeals affirmed Collins' convictions for possession of cocaine with intent to distribute and the related firearm charge. The court held the evidence, when viewed in the light most favorable to the Commonwealth and with credibility determinations resolved by the trial judge, was sufficient to support the convictions. The opinion does not announce a new legal rule; it applies existing standards for appellate sufficiency review and for deference to factfinder credibility determinations. No broader precedent beyond those applications was established in this decision.

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REGINALD COLLINS v. COMMONWEALTH OF VIRGINIA

(1) Appellate Review — Appeals From the Circuit Court — Standard. — When a defendant challenges the sufficiency of the evidence, the appellate court must review the evidence in the light most favorable to the Commonwealth and give it all reasonable inferences fairly deducible therefrom; a conviction will not be reversed unless it is plainly wrong or without evidence to support it.

(2) Evidence — Witnesses — Credibility. — The credibility of witnesses and the weight accorded their testimony are matters solely for the fact finder who has the opportunity of seeing and hearing the witnesses.

SUMMARY

Defendant was convicted of possession of cocaine with intent to distribute. He argued that the evidence was insufficient to support the conviction (Circuit Court of the City of Virginia Beach, Austin E. Owen, Judge).

The Court of Appeals affirmed, holding that the evidence was sufficient to create an issue of fact for the jury.

Affirmed.

OPINION

DUFF, J.

Reginald Collins contends that the evidence was insufficient in his bench trial to prove beyond a reasonable doubt that he possessed cocaine with the intent to distribute. He urges us to reverse his conviction of that charge and also a related charge of possession of a firearm while in possession of cocaine. We find sufficient evidence in the record, when viewed in the light most favorable to the Commonwealth, to create a question of fact as to whether Collins was in possession of the cocaine. Under such circumstances, we may not substitute our judgment as to the facts for that of the trial court and, accordingly, we affirm the convictions.

On the evening of October 26, 1989, based on information that had come to them, members of the special investigator's unit of the Virginia Beach Police Department went to Windless Circle, an apartment complex in Virginia Beach. When Detective Huston turned a corner in the complex, he saw Collins in a vehicle in a dimly lit parking lot. He pulled up behind Collins' vehicle and stopped approximately thirty feet away. He observed Collins sitting sidesaddle in the front seat of the vehicle. As Collins left his vehicle, he made a throwing motion under the vehicle with his right arm. Detective Huston approached and illuminated the area underneath the vehicle with his flashlight. Detective Smith, who was accompanying Detective Huston, retrieved from underneath the vehicle a plastic baggie containing fourteen smaller baggies of a white substance. The record contains no evidence that any other items, except the baggies, were found beneath the vehicle. A subsequent certificate of analysis from the Bureau of Forensic Science identified the baggies as containing approximately 1.9 grams of cocaine, a schedule II substance.

The defendant was arrested and charged with possession of cocaine. The detectives determined that Collins did not live in the apartment complex and arrangements were made for his car to be towed. An inventory search revealed a .357 caliber Smith and Wesson revolver in the vehicle.

Collins contends that the Commonwealth failed to prove possession of the cocaine beyond a reasonable doubt. He argues that no one saw any contraband in his hand; that the officers observed him in a dimly lit parking lot make a motion with his hand as he exited the vehicle; and that the evidence does not negate the possibility that the cocaine was already under the car. We disagree.

Detective Huston, while conceding in his testimony the possibility that Collins could have slipped and fallen in attempt to catch himself, positively described the arm motion as, "That's the motion I observed; that he was throwing something under the car, yes, sir."

(1) When a defendant challenges the sufficiency of the evidence, we are required to review the evidence "in the light most favorable to the Commonwealth and give it all reasonable inferences fairly deducible therefrom." Id. Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975); see Crews v. Commonwealth, 3 Va. App. 531, 537, 352 S.E.2d 1, 4 (1987). The conviction will not be reversed unless it is "plainly wrong or without evidence to support it."

(2) It is fundamental that "the credibility of witnesses and the weight accorded their testimony are matters solely for the fact finder who has the opportunity of seeing and hearing the witnesses." Schneider v. Commonwealth, 230 Va. 379, 382, 337 S.E.2d 735, 736-37 (1985). The trial judge, sitting as the trier of fact, found that the police officer observed a throwing motion "and immediately thereafter shined his flashlight in the area where he had observed the throwing motion and found this package. . . ."

The court could have found that Collins was merely off balance as he exited the car, or that he slipped and was attempting to catch himself. But the court did not so find. Instead, the court found that Collins in fact threw drugs under the vehicle and that finding is binding on us, unless it is incredible or plainly wrong. It is neither under the facts in this record.

The trial court was not unmindful of Collins' argument that the cocaine might have already been under his car. The judge discounted this possibility, observing that the cocaine was "something of significant value and not something that one is likely to have abandoned or carelessly left in the area there."

Thus, the record, when viewed in the light most favorable to the Commonwealth, contains credible evidence that Collins threw something under his car upon the approach of Detective Huston. The plastic baggies of cocaine were found under his car immediately thereafter. This evidence was sufficient to support his conviction of possession of cocaine with the intent to distribute and the related firearm charge.

Affirmed.

Baker, J., concurred.

Benton, J., dissenting.

Detective Huston admitted that he saw nothing in Reginald Collins' hand when Collins exited the automobile. Huston also admitted that what he described as a throwing motion may not have been a throw:

Q: Could he have been off balance getting out of the car?

A: Yes, sir.

Q: Could he have slipped and fallen in attempting to catch himself?

A: It's possible, yes, sir.

Q: So it's not necessarily a throwing motion then?

A: What I perceived then was a throwing motion. It could have been anything.

"[W]here, as here, a conviction is based on circumstantial evidence, `all necessary circumstances proved must be consistent with guilt and inconsistent with innocence and exclude every reasonable hypothesis of innocence.'" Garland v. Commonwealth, 225 Va. 182, 184, 300 S.E.2d 783, 784 (1983) (quoting Inge v. Commonwealth, 217 Va. 360, 366, 228 S.E.2d 563, 567 (1976)). "Suspicious circumstances, including proximity to a controlled drug, are insufficient to support a conviction." Behrens v. Commonwealth, 3 Va. App. 131, 135, 348 S.E.2d 430, 432 (1986).

On the evidence in this record, the Commonwealth failed to prove Collins' possession beyond a reasonable doubt. The circumstantial evidence shows only that a detective saw Collins from a distance of thirty feet in a dimly lit parking lot make a motion as Collins exited his automobile. The detective admitted that the motion he saw "could have been anything" and that he never saw anything in Collins' hand. This proof is not entirely consistent with guilt nor is it inconsistent with Collins' claim of innocence. It does not negate the hypothesis that the cocaine was already on the ground where it was found. The proof merely raises a suspicion that Collins threw the cocaine under the automobile. When, as here, "the evidence leaves it indefinite which of several hypotheses is true, or establishes only some finite probability in favor of one hypothesis, such evidence cannot amount to proof, however great the probability may be." Massie v. Commonwealth, 140 Va. 557, 565, 125 S.E. 146, 148 (1924).

For these reasons, I dissent and would reverse the convictions.

COLLINS v. COMMONWEALTH