                                             COURT OF APPEALS OF VIRGINIA


              Present: Chief Judge Huff, Judges Petty and Chafin
              Argued at Norfolk, Virginia
UNPUBLISHED




              TEDDY LEON PARKER
                                                                            MEMORANDUM OPINION* BY
              v.     Record No. 1488-17-1                                    CHIEF JUDGE GLEN A. HUFF
                                                                                NOVEMBER 20, 2018
              COMMONWEALTH OF VIRGINIA


                             FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
                                             Timothy S. Fisher, Judge

                               Elizabeth G. McGehee, Assistant Public Defender (Robert Moody,
                               Deputy Public Defender, on brief), for appellant.

                               Craig W. Stallard, Assistant Attorney General (Mark R. Herring,
                               Attorney General, on brief), for appellee.


                     Teddy Leon Parker (“appellant”) appeals his convictions for possession of cocaine and

              possession of marijuana, in violation of Code §§ 18.2-250 and 18.2-250.1. After a bench trial in

              the Circuit Court of the City of Newport News (“trial court”), appellant was sentenced to a total

              of ten years and thirty days in prison, with five years suspended. Appellant contends that the

              trial court erred by denying his motion to strike because the evidence was insufficient to prove

              that appellant was aware of the presence and character of the controlled substances. For the

              following reasons, this Court affirms appellant’s conviction.

                                                      I. BACKGROUND

                     On appeal, this Court “must review the evidence in the light most favorable to the

              prevailing party at trial and consider any reasonable inferences from the facts proved.” Viney v.




                     *
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
Commonwealth, 269 Va. 296, 299, 609 S.E.2d 26, 28 (2005). So viewed, the evidence is as

follows.

           At 3:30 a.m. on August 3, 2014, Officers J.T. Rosario and Ramon Quinones (“officers”)

of the Newport News Police Department were on patrol in the City of Newport News. As the

officers approached an intersection, they noticed a white sedan in front of them accelerate and

turn left, running a red light. The officers turned on their sirens, followed, and observed the

sedan run another red light as it turned left again. After driving more than a block, the sedan ran

up on the curb and into the yard of an apartment. Appellant opened the door and fled on foot.

The officers left both vehicles unattended and chased appellant on foot, arresting him in a nearby

apartment. After detaining appellant, the officers discovered he had an outstanding warrant.

They also determined that appellant was not the registered owner of the vehicle.

           As appellant was being arrested, Officer J.G. Stephens (“Stephens”), of the Newport

News Police Department, arrived at the scene of the abandoned sedan. Stephens approached the

vehicle and, using a flashlight in the rainy pre-dawn darkness, observed a partially open plastic

grocery bag “in plain view” on the passenger’s seat. Through the partially open top of the bag,

Stephens observed what he believed to be marijuana and a white powdery substance inside.

Stephens collected the bag and its contents, and submitted them to the police laboratory for

testing.

           At a bench trial on August 25, 2015, appellant stipulated the substances were marijuana

and cocaine. At the conclusion of the Commonwealth’s case appellant moved to strike the

evidence on the ground that it was insufficient to prove he knew the substances in the bag were

drugs. The trial court denied his motion. Appellant put on no evidence and renewed his motion

to strike, which the trial court again denied. The trial court convicted appellant of possession of

cocaine and possession of marijuana. On September 8, 2017, the trial court sentenced appellant

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to ten years’ incarceration, with five years suspended, for possession of cocaine and thirty days

in jail for possession of marijuana. This appeal followed.

                                 II. STANDARD OF REVIEW

       This Court reviews questions regarding the sufficiency of the evidence “with the highest

‘degree of appellate deference.’” Thomas v. Commonwealth, 48 Va. App. 605, 608, 633 S.E.2d

229, 231 (2006). The judgment of the trial court will be reversed only upon a showing that it “is

plainly wrong or without evidence to support it.” Code § 8.01-680; see also Viney, 269 Va. at

299, 609 S.E.2d at 28. “An appellate court does not ‘ask itself whether it believes that the

evidence at the trial established guilt beyond a reasonable doubt.’” Williams v. Commonwealth,

278 Va. 190, 193, 677 S.E.2d 280, 282 (2009) (quoting Jackson v. Virginia, 443 U.S. 307,

318-19 (1979)). Instead, the only “relevant question is, after reviewing the evidence in the light

most favorable to the prosecution, whether any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.” Sullivan v. Commonwealth, 280

Va. 672, 676, 701 S.E.2d 61, 63 (2010). Such deference applies to the facts on record as well as

inferences from those facts. Hancock v. Commonwealth, 12 Va. App. 774, 782, 407 S.E.2d 301,

306 (1991).

                                         III. ANALYSIS

       Appellant argues the trial court erred by denying the motion to strike because the

evidence was insufficient to prove that appellant was aware of the presence and character of the

controlled substances. He further argues that the Commonwealth presented only circumstantial

evidence that he was aware of the presence and character of the substances in the bag, and failed

to exclude his reasonable hypothesis of innocence that he was unaware that the bag contained

drugs and he fled from the police only because he had outstanding warrants.




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       To prove constructive possession, “the Commonwealth must 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). This “may be proved by evidence of acts, declarations or conduct of the accused from

which the inference may be fairly drawn that [the accused] knew of the existence of [the

controlled substances] at the place where they were found.” Hairston v. Commonwealth, 5

Va. App. 183, 186, 360 S.E.2d 893, 895 (1987) (quoting People v. Pigrenet, 186 N.E.2d 306, 308

(Ill. 1962)). The Court looks to the totality of the circumstances to determine knowledge of the

presence and character of a substance. Womack v. Commonwealth, 220 Va. 5, 8, 255 S.E.2d

351, 353 (1979).

       Occupancy of a vehicle in which drugs are found may be probative of possession but is

insufficient, standing alone, to establish knowledge of the nature and character of the drugs.

Coward v. Commonwealth, 48 Va. App. 653, 658, 633 S.E.2d 752, 754 (2006) (“[W]hile

‘occupancy of a vehicle . . . where illicit drugs are found is a circumstance that may be

considered together with other evidence tending to prove that the occupant . . . exercised

dominion and control over items in the vehicle’ it is ‘insufficient to prove knowing possession of

drugs.’” (quoting Burchette v. Commonwealth, 15 Va. App. 432, 435, 425 S.E.2d 81, 83

(1992))).

       Appellant relies almost entirely on Coward, 48 Va. App. 653, 633 S.E.2d 752, to support

his claim that the Commonwealth failed to prove he was aware of the nature and character of the

drugs found in the vehicle. In that case, Coward was a passenger in a car stopped by police at

approximately 3:30 in the morning. Id. at 656, 633 S.E.2d at 753. During the stop, the officer,

using a flashlight, observed cocaine in a clear bag in the center console of the car in plain view.

Id. Neither Coward nor the driver made any movements towards the drug or attempted to

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conceal it from the officer, and both remained in the vehicle during the stop until instructed

otherwise. Id. This Court found that proximity to the drugs was insufficient to prove that

Coward knew of the nature and character of drugs in the vehicle. Id. at 659, 633 S.E.2d at 754.

The Court further noted Coward showed no other signs of guilty knowledge, and there was no

evidence that the bag would have been visible to him without additional lighting. Id. at

659-60, 633 S.E.2d at 755. This Court found the evidence insufficient to establish constructive

possession of the drugs and reversed Coward’s conviction.

       Appellant’s reliance on Coward is misplaced because in this case the Commonwealth

presented more evidence than “mere proximity.” Although the sedan was not registered to

appellant, he was the driver and sole occupant of the vehicle, not a passenger in a vehicle driven

by someone else. While Stephens stated he used a flashlight to see into the bag on the

passenger’s seat because of the time of night and weather, this bag was partially open and in

“plain view” on the passenger’s seat, easily visible to appellant.

       Furthermore, appellant fled the scene immediately upon seeing the police car, and ran

from the vehicle on foot in a further effort to elude police. Evidence of flight may be used to

infer guilt. In Ricks v. Commonwealth, 39 Va. App. 330, 573 S.E.2d 266 (2002), this Court held

that “while [defendant’s] flight might have been attributable to several causes, ‘consciousness of

guilt’ could be inferred by the trial court if any one of those causes was the instant offense.” Id.

at 337, 573 S.E.2d at 269; see also Leonard v. Commonwealth, 39 Va. App. 134, 571 S.E.2d 306

(2002) (affirming the admission of flight evidence where defendant had several charges

pending). Despite the fact that appellant had an outstanding warrant, the trial court was free to

attribute his flight to his consciousness of guilt about the presence of the drugs.

       This Court has also found that drugs are not likely to be accidentally placed in an area,

concluding “settled principles provide that people do not relinquish control of items of value like

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drugs or leave them in places where others might find them.” Watts v. Commonwealth, 57

Va. App. 217, 233, 700 S.E.2d 480, 488 (2010); see also Ward v.Commonwealth, 47 Va. App.

733, 753 n.4, 627 S.E.2d 520, 530 n.4 (2006) (“Our cases recognize that drugs are a commodity

of significant value, unlikely to be abandoned or carelessly left in an area.”). A rational fact

finder could infer that the drugs were not carelessly left in the vehicle by someone other than

appellant.

       The evidence in this case supports the trial court’s conclusion that appellant was aware of

the nature and character of the drugs in the car. Appellant was the driver and sole occupant of

the vehicle. When pursued by officers, appellant immediately ran two red lights, abandoned the

vehicle, and fled on foot for another block. Police recovered a bag from the front seat of the

vehicle, in plain view of the appellant, that was partially open with suspected contraband visible

through the opening. The trial court was free to infer that appellant was fleeing from the police

because he knew the bag contained drugs. This evidence could lead a rational fact finder to

conclude that appellant was aware of the nature and character of the substances in the bag. The

trial court’s conclusion was supported by the evidence and is not plainly wrong.

       Appellant further claims the Commonwealth failed to exclude his reasonable hypothesis

of innocence that he was fleeing from the officers because he had an outstanding warrant. This

Court disagrees. Circumstantial evidence may be more compelling and persuasive than direct

evidence and is entitled to just as much weight. Jett v. Commonwealth, 29 Va. App. 190, 194,

510 S.E.2d 747, 748-49 (1999). The Supreme Court of Virginia made this clear in

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

               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 . . . . The issue upon appellate review is not
               whether “there is some evidence to support” these hypotheses.
               The issue is whether a reasonable jury, upon consideration of all
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               the evidence, could have rejected [the defendant’s] theories in his
               defense and found him guilty . . . beyond a reasonable doubt.

       “Whether an alternate hypothesis of innocence is reasonable is a question of fact.” Wood

v. Commonwealth, 57 Va. App. 286, 306, 701 S.E.2d 810, 819 (2010) (quoting Emerson v.

Commonwealth, 43 Va. App. 263, 277, 597 S.E.2d 242, 249 (2004)). Accordingly, a trial

court’s rejection of a hypothesis of innocence “is binding on appeal unless plainly wrong,”

Archer v. Commonwealth, 26 Va. App. 1, 12-13, 492 S.E.2d 826, 832 (1997), even if there is

“some evidence to support” the hypothesis of innocence. Hudson, 265 Va. at 513, 578 S.E.2d at

785. The issue upon appellate review is simply whether a reasonable fact finder could have

rejected appellant’s hypothesis and found him guilty beyond a reasonable doubt. Id.

       In this case, the trial court evaluated appellant’s hypothesis and rejected it. When viewed

in the light most favorable to the Commonwealth, the evidence in the record supports that

decision. The drugs were found in plain view on the passenger seat in a car where appellant was

the driver and sole occupant, and appellant fled from the police. The trial court was free to infer

consciousness of guilt based on appellant’s flight. Ricks, 39 Va. App. at 337, 573 S.E.2d at 269.

Accordingly, the trial court’s decision to reject appellant’s hypothesis of innocence is not plainly

wrong and this Court will not disturb it.

                                       IV. CONCLUSION

       The trial court’s conclusion that appellant was aware of the presence and character of the

drugs, and its decision to reject his alternate hypothesis of innocence, were both supported by the

evidence and thus were not plainly wrong. Accordingly, this Court affirms appellant’s

conviction.

                                                                                          Affirmed.




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