                               COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Felton, Judges Elder and Beales
Argued at Chesapeake, Virginia


ARTHUR JUNIOUS CHERRY
                                                               MEMORANDUM OPINION* BY
v.     Record No. 2011-05-1                                    JUDGE RANDOLPH A. BEALES
                                                                     AUGUST 8, 2006
COMMONWEALTH OF VIRGINIA


               FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
                               Thomas S. Shadrick, Judge

                 Laura A. Cook, Assistant Public Defender, for appellant.

                 Virginia B. Theisen, Senior Assistant Attorney General (Robert F.
                 McDonnell, Attorney General, on brief), for appellee.


       Arthur Junious Cherry appeals from his convictions by bench trial of possession with intent

to distribute cocaine and possession of a firearm while in possession of a controlled substance.

Appellant contends the trial court (1) denied his right to due process when it denied his request for a

jury trial without an express, voluntary, or intelligent waiver; (2) violated his Sixth Amendment

right to counsel when it denied him the opportunity to have retained counsel represent him instead

of court-appointed counsel; and (3) erred in finding the evidence sufficient beyond a reasonable

doubt to prove that he constructively possessed cocaine with intent to distribute and that he

possessed a firearm while in possession of a controlled substance.

                                                   I.

       “On appeal, ‘we review the evidence in the light most favorable to the Commonwealth,

granting to it all reasonable inferences fairly deducible therefrom.’” Archer v. Commonwealth,


       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997) (quoting Martin v. Commonwealth, 4 Va. App.

438, 443, 358 S.E.2d 415, 418 (1987)).

                                                 II.

                                              FACTS

       Around 5:00 a.m. on November 19, 2004, Norfolk police officers and members of the

Virginia Beach Police Department SWAT team executed a search warrant at a townhouse

residence located at 5383 Grand Lake Crescent in the City of Virginia Beach. Once inside, the

officers saw appellant at the top of the stairs exiting the first bedroom on the left. Appellant was

standing just outside the bedroom door with his right hand still inside that room. When appellant

saw the officers, he quickly went inside the bedroom and slammed the door behind him.

       Officer Thomas Finn opened the bedroom door, and Officer Steven Ferreira entered the

bedroom. Ferriera and Finn saw appellant on the floor on his stomach with his head facing the

bedroom door and his arms on the floor in front of him. The officers saw shoes underneath a

stereo to the left of the bedroom door and in front of appellant. In between those shoes on the

floor lay a Ruger handgun with a magazine; the firearm was pointed toward the bedroom door.

The loaded firearm was approximately one foot from appellant’s hands. Finn recovered the

handgun and put it on top of the stereo.

       Police also found, in plain view, a plastic baggie containing bullets. These were found on

a windowsill located on the wall opposite the bedroom door and above the bed.1 Appellant’s

girlfriend, Tanisha Baker, was on the bed, which was located against the wall opposite the




       1
          Norfolk Detective Wayne Handley learned later that the bullets were compatible with
the firearm found in the bedroom.
                                            -2-
bedroom door and to the left of that door.2 Also to the left of the bedroom door and next to the

bed was a dresser with a mirror on it; the dresser was less than two feet from the stereo.

       The officers also saw, in plain view and located on the floor between the head of the bed

and the dresser, a baggie containing hard objects that they suspected to be crack cocaine.

Appellant’s right foot was about one to two feet from and parallel to the baggie. The baggie

contained fifty-seven knotted plastic bag corners containing off-white solid material that later

tested positive for cocaine. The cocaine had an approximate total weight of 7.71 grams.3 Police

also recovered from the right top dresser drawer a clear baggie corner, which contained a white

powder substance that later tested positive for 0.047 gram of cocaine. The officers also found a

box of sandwich baggies and a pair of scissors on the top of the dresser. The baggies were pulled

out of the box and spread on the dresser, and some of the baggies’ corners were cut off.

       Also inside the dresser drawer, the officers found a photograph identification card and a

social security card, both of which did not belong to appellant. In addition, the dresser drawer

contained a photograph of Gary Tolover, a codefendant in one of the cases involving appellant

that Norfolk Detective J.R. Malbon was investigating at that time. Neither appellant nor Baker

made any statements to the officers who entered the bedroom. There were no other persons in

the bedroom when the officers entered.4



       2
         The officers had information indicating that appellant’s girlfriend did not live in the
house, but rather, lived at 6868 Alexander Street in the City of Norfolk.
       3
         The certificate of analysis admitted into evidence indicates that the plastic baggie also
contained one knotted plastic bag corner containing off-white and light orange powder and solid
material that tested positive for cocaine with a total weight of 0.140 gram.
       4
         The officers also checked the other two bedrooms in the house. Malbon testified that
one of those bedrooms belonged to appellant’s mother and the other belonged to his sister.
Malbon stated that after he left appellant’s bedroom, he recorded the names of the other six to
seven persons in the house, who were in the living room downstairs. Appellant’s brother was not
in the house.
                                                -3-
       Finn testified at trial, without objection, that the room appeared to be appellant’s

bedroom. Finn stated that he was briefed that the residence belonged to appellant’s mother and

that younger children also lived in the home. Finn saw a photograph of a girl on the dresser

mirror. Malbon stated that the bedroom contained male clothing, Baker’s jacket, and a pair of

her pants.

       Detective Gary Meador testified that the 7.71 grams of cocaine found in appellant’s

bedroom on the floor had an approximate street value of $770 and that the cocaine recovered

from the room was packaged for street level distribution. He testified that no smoking devices

were recovered from the bedroom. Based upon his experience and training, Meador opined that

the amount of cocaine found in the bedroom was inconsistent with personal use.

       Baker testified that the drugs were hers and that appellant was unaware of the existence

of the drugs. She claimed she packaged the cocaine for distribution, carried it in her pocketbook,

and tossed it about the room just before the police entered.

       Appellant testified and admitted possessing the firearm and discarding it just before the

police entered the room. He claimed he did not possess the drugs in the room or know of their

existence. He also denied owning the items found in the dresser drawer or the packaging

materials. Appellant admitted his brother, Alvin, who was then incarcerated, had not been in the

room “for a while.”

       The trial court found appellant guilty of possession of the cocaine found in the room and

of a firearm while in the possession of a controlled substance. The trial court noted that

appellant admitted he lived in the bedroom where the police discovered both him and the drugs

and that he also admitted possessing the firearm. The trial court also noted that cocaine was

found both in the dresser and in plain view on the floor by the bed, easily within appellant’s

reach. The trial court specifically rejected the testimony of appellant’s girlfriend, Tanisha Baker.

                                                -4-
                                                  III.

                                             ANALYSIS

                                                   A.

        The Commonwealth concedes error as to the first question presented. We agree. The

record reveals that appellant made repeated requests for a jury trial, which the trial court denied.

The record does not contain an express, voluntary, and intelligent waiver by appellant of his right to

trial by jury. Therefore, the Commonwealth concedes and we agree that the trial court committed

reversible error in denying appellant’s request for a jury trial. See Robinson v. Commonwealth, 36

Va. App. 1, 5-6, 548 S.E.2d 227, 228-29 (2001). Accordingly, we reverse appellant’s convictions

and remand for a new trial.5

                                                   B.

        “Notwithstanding the fact that we reverse for a . . . violation [of appellant’s constitutional

right to trial by jury], ‘we address appellant’s sufficiency of the evidence argument because the

Commonwealth would be barred on double jeopardy grounds from retrying appellant if we were

to reverse for insufficiency of the evidence.’” Hargraves v. Commonwealth, 37 Va. App. 299,

312, 557 S.E.2d 737, 743 (2002) (quoting Timbers v. Commonwealth, 28 Va. App. 187, 202,

503 S.E.2d 233, 240 (1998)).

        Appellant argues that the Commonwealth failed to prove beyond a reasonable doubt that

he had dominion and control over the drugs and that he was aware of their nature and character

and, accordingly, claims that the Commonwealth failed to prove he constructively possessed the

drugs. He argues that the Commonwealth did not exclude every reasonable hypothesis of his



        5
         Because we find the trial court erred in denying appellant’s request for a jury trial and
remand for a new trial, we need not consider Question Presented 2 regarding the denial of
appellant’s right to counsel under the Sixth Amendment, because appellant will have the ability
to choose counsel at his upcoming trial.
                                                -5-
innocence, including the theory that Baker or another male whose personal possessions were in

the room could have owned the drugs. Appellant then argues that, because the Commonwealth

failed to prove he constructively possessed the drugs, he could not be found guilty of possessing

a firearm while in possession of drugs.

       To support a conviction based on constructive possession, “the Commonwealth must

point to evidence of acts, statements, or conduct of the accused or other facts or circumstances

which tend to show that the defendant was aware of both the presence and character of the

substance and that it was subject to his dominion and control.” Powers v. Commonwealth, 227

Va. 474, 476, 316 S.E.2d 739, 740 (1984). “Although mere proximity to the contraband is

insufficient to establish possession, it is a factor that may be considered in determining whether a

defendant possessed the contraband. . . . Ownership or occupancy of the premises on which the

contraband was found is likewise a circumstance probative of possession.” Archer, 26 Va. App.

at 12, 492 S.E.2d at 832 (citation omitted). “To resolve the issue, the Court must consider the

totality of the circumstances established by the evidence.” Williams v. Commonwealth, 42

Va. App. 723, 735, 594 S.E.2d 305, 311 (2004).

               Circumstantial evidence may establish the elements of a crime,
               provided it excludes every reasonable hypothesis of innocence.
               “The statement that circumstantial evidence must exclude every
               reasonable theory of innocence is simply another way of stating
               that the Commonwealth has the burden of proof beyond a
               reasonable doubt.” This Court must determine not whether there is
               some evidence to support [appellant’s] hypothesis of innocence
               but, rather, whether a reasonable fact finder, upon consideration of
               all the evidence, could have rejected appellant’s theories and found
               him guilty beyond a reasonable doubt. Whether a hypothesis of
               innocence is reasonable is a question of fact.

Corbin v. Commonwealth, 44 Va. App. 196, 202-03, 604 S.E.2d 111, 114 (2004) (quoting

Commonwealth v. Hudson, 265 Va. 505, 513, 578 S.E.2d 781, 785 (2003)) (other citations

omitted).


                                                -6-
       Here, when appellant saw police approaching, he still had one hand inside his bedroom.

He immediately went inside the bedroom and slammed the door. When the police entered

appellant’s bedroom, he was on the floor and had just discarded a loaded firearm within arm’s

reach. The police found, in plain view on the floor between the bed and dresser and within one

to two feet of appellant, a baggie containing fifty-seven corner bags of cocaine worth

approximately $770. In addition, the officers found cocaine inside a dresser drawer in

appellant’s bedroom. They also found, in plain view, bullets on the windowsill and drug

packaging materials on top of the dresser. The bedroom contained some of appellant’s

belongings, and appellant admitted that his brother, who was in jail on November 19, 2004, had

not lived there for a while. No evidence was present to suggest that Baker lived there.

       Based on these facts, a rational fact finder could conclude that appellant was aware of

both the presence and character of the cocaine found in his bedroom and that the substance was

subject to his dominion and control. See Wymer v. Commonwealth, 12 Va. App. 294, 300-01,

403 S.E.2d 702, 706-07 (1991) (finding evidence of cocaine and drug paraphernalia found

throughout common areas of house and in bedroom shared by accused and another is relevant in

accused’s prosecution for cocaine possession). “[T]he Commonwealth was not required to prove

that [appellant] was the only person capable of exercising dominion and control over the

[cocaine]. As we have held, a defendant’s possession of an illegal substance ‘need not be

exclusive.’” Wilson v. Commonwealth, 46 Va. App. 408, 434, 617 S.E.2d 431, 443 (2005) (en

banc) (quoting Barlow v. Commonwealth, 26 Va. App. 421, 429, 494 S.E.2d 901, 905 (1998))

(other citation omitted), rev’d on other grounds, 272 Va. 19, 630 S.E.2d 326 (2006).

Constructive possession “may instead be joint.” Archer v. Commonwealth, 225 Va. 416, 418,

303 S.E.2d 863, 863 (1983).




                                               -7-
        We also note that “[t]he credibility of the witnesses and the weight accorded the evidence

are matters solely for the fact finder who has the opportunity to see and hear that evidence as it is

presented.” Sandoval v. Commonwealth, 20 Va. App. 133, 138, 455 S.E.2d 730, 732 (1995).

Furthermore, “[i]n its role of judging witness credibility, the fact finder is entitled to disbelieve

the self-serving testimony of the accused and to conclude that the accused is lying to conceal his

guilt.” Marable v. Commonwealth, 27 Va. App. 505, 509-10, 500 S.E.2d 233, 235 (1998).

        Here, the trial court did not believe the testimony of appellant and Baker, specifically

noting the following with respect to Baker’s testimony:

                [I]n sixteen years of being a judge, that is, her testimony was one
                of the worst jobs of lying that I’ve ever heard. She wouldn’t know
                the truth if it stared her right in the face. The truth is foreign to
                her. Practically every word out of her mouth on that witness stand
                was a lie. And she’s too young and immature to even understand
                the ramifications of that.

Thus, the trial court, as fact finder, was entitled to reject appellant’s hypotheses of innocence and

did not err in so doing.

                                                    IV.

        Although we find the evidence sufficient to support the convictions, we reverse and remand

for a new trial because the trial court erred in failing to grant appellant’s request for a trial by jury.

                                                                                  Reversed and remanded.




                                                    -8-
