                   COURT OF APPEALS OF VIRGINIA

Present: Judges Frank, Felton and Kelsey
Argued at Richmond, Virginia


TERRY DARNELL CHISM
                                         MEMORANDUM OPINION * BY
v.   Record No. 2892-01-2                JUDGE D. ARTHUR KELSEY
                                           DECEMBER 17, 2002
COMMONWEALTH OF VIRGINIA


             FROM THE CIRCUIT COURT OF HALIFAX COUNTY
                    William L. Wellons, Judge

          Michael L. Freshour, Assistant Public
          Defender, for appellant.

          John H. McLees, Senior Assistant Attorney
          General (Jerry W. Kilgore, Attorney General;
          Susan M. Harris, Assistant Attorney General,
          on brief), for appellee.


     The appellant, Terry Darnell Chism, claims that the trial

court lacked sufficient evidence to convict him for possession

of cocaine in violation of Code § 18.2-250 and simultaneous

possession of cocaine and firearms in violation of Code

§ 18.2-308.4(A).   The trial court erred, Chism contends, by

finding that he knew of the presence and character of cocaine

residue found on digital scales within his house.   Without that

predicate finding, Chism reasons, the firearm charge also must




     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
be dismissed.   Because we find no error in the trial court's

decision, we affirm Chism's conviction on both charges.

                                  I.

     When examining a challenge to the sufficiency of the

evidence on appeal, we must review the evidence "'in the light

most favorable to the Commonwealth'" and grant it the benefit of

any reasonable inferences.   Ward v. Commonwealth, 264 Va. 648,

654, 570 S.E.2d 827, 831 (2002) (quoting Higginbotham v.

Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975)).

That principle requires us to "'discard the evidence of the

accused'" which conflicts, either directly or inferentially,

with the Commonwealth's evidence.        Wactor v. Commonwealth, 38

Va. App. 375, 380, 564 S.E.2d 160, 162 (2002) (quoting Watkins

v. Commonwealth, 26 Va. App. 335, 348, 494 S.E.2d 859, 866

(1998)).   We view the facts of this case, therefore, through

this evidentiary prism.

     In response to a concerned citizen's tip that Terry Darnell

Chism was selling crack cocaine from his house, Deputy Sheldon

Jennings of the Halifax County Sheriff's Office visited Chism's

residence on December 9, 2000.    Deputy Jennings informed Chism

of the reason for his visit and asked if he could search Chism's

home for drugs.   Chism consented and allowed Jennings into his

trailer.




                                 - 2 -
     Inside, Jennings found a set of Tonita digital scales in a

kitchen cabinet.   Chism acknowledged that he owned the scales

and mentioned that he planned to sell them.    Jennings, knowing

that cocaine distributors commonly used similar scales, removed

the scales from the cabinet to inspect them.   Visibly apparent

on the face of the scales, Jennings noticed residue of an

off-white substance with an appearance "consistent with crack

cocaine."   In a trashbag in the kitchen, Jennings also

discovered what appeared to be partially smoked marijuana.

Jennings confiscated the scales and the evidence that he

believed to be marijuana.

     Moving his search to the trailer's den, Jennings noticed

additional marijuana plainly visible on top of Chism's

entertainment center.   Jennings then found a rifle in the den

and a second rifle in Chism's bedroom.   When questioned about

these items, Chism claimed that he did not own the marijuana,

but admitted using the rifles for "target shooting."

     At trial, the Commonwealth introduced into evidence a

certificate of analysis from the Virginia Division of Forensic

Science confirming that the digital scales contained measurable

cocaine residue.   Officer Jennings also testified that, based

upon his experience as a member of a drug enforcement task

force, possession of Tonita digital scales was "consistent with

the distribution of cocaine."


                                - 3 -
     Following the presentation of evidence at trial, the

defense moved to strike the evidence, claiming that Chism did

not know the nature and character of the residue on his scales.

The trial court denied the motion and sentenced Chism to five

years in prison for possession of cocaine and five years for

possession of a firearm while possessing cocaine.    The court

suspended all five years of Chism's sentence for possession of

cocaine.   On appeal, Chism contends that the trial court lacked

sufficient evidence upon which to convict him for possession of

cocaine and, for that same reason, had no basis to convict him

of simultaneous possession of cocaine and firearms.

                                II.

     Under settled principles, we "presume the judgment of the

trial court to be correct" and reverse on sufficiency grounds

only if the trial court's decision is "plainly wrong or without

evidence to support it."   Davis v. Commonwealth, 39 Va. App. 96,

99, 570 S.E.2d 875, 876-77 (2002) (citations omitted); see also

McGee v. Commonwealth, 25 Va. App. 193, 197-98, 487 S.E.2d 259,

261 (1997) (en banc).   In Virginia, an appellate court "is not

permitted to substitute its own judgment for that of the finder of

fact, even if the appellate court might have reached a different

conclusion."   Commonwealth v. Presley, 256 Va. 465, 466, 507

S.E.2d 72, 72 (1998); see also Harris v. Commonwealth, 38



                               - 4 -
Va. App. 680, 691, 568 S.E.2d 385, 390 (2002). 1   Thus, the

judgment of a "trial court sitting without a jury" advances to

the appellate court with "the same weight as a jury verdict."

Tarpley v. Commonwealth, 261 Va. 251, 256, 542 S.E.2d 761, 763

(2001) (citation omitted); Carter v. Commonwealth, 38 Va. App.

116, 119, 562 S.E.2d 331, 332 (2002).

     In criminal cases, due process requires the prosecution to

prove the defendant's guilt "beyond a reasonable doubt."       Fiore

v. White, 531 U.S. 225, 228-29 (2001).    This essential safeguard

of liberty, as stringent as it is, does not ignore the axiom

that "'[e]vidence is seldom sufficient to establish any fact as

demonstrated and beyond all doubt.'"     Harris v. Commonwealth,

206 Va. 882, 887, 147 S.E.2d 88, 92 (1966) (quoting Toler v.

Commonwealth, 188 Va. 774, 780, 51 S.E.2d 210, 213 (1949)).

Even so, mere suspicion of criminality coupled with a bare

possibility of guilt can never suffice.

     When the Commonwealth relies on circumstantial evidence,

the reasonable doubt standard requires proof "sufficiently

convincing to exclude every reasonable hypothesis except that of

guilt."   Coleman v. Commonwealth, 226 Va. 31, 53, 307 S.E.2d



     1
       "This is so because the judge, as fact finder, sees and
hears the witnesses and, therefore, is better able to determine
their credibility and weigh their testimony." Jones v. Eley,
256 Va. 198, 201, 501 S.E.2d 405, 406 (1998) (citing Tuomala v.
Regent University, 252 Va. 368, 375, 477 S.E.2d 501, 505-06
(1996)).
                               - 5 -
864, 876 (1983).    This construct has two important subsidiary

rules.    First, only a hypothesis of innocence flowing "from the

evidence, not those that spring from the imagination of the

defendant" must be considered.     Stevens v. Commonwealth, 38

Va. App. 528, 535, 567 S.E.2d 537, 540 (2002) (citation

omitted).    Second, whether an "alternative hypothesis of

innocence is reasonable is a question of fact and, therefore, is

binding on appeal unless plainly wrong."     Id.; Harris, 38

Va. App. at, 691, 568 S.E.2d at 391; Archer v. Commonwealth, 26

Va. App. 1, 12-13, 492 S.E.2d 826, 832 (1997).    In other words,

only when a fact finder "arbitrarily" ignores the reasonableness

of the innocence hypothesis should the decision be overturned on

appeal.     Stevens, 38 Va. App. at 535, 567 S.E.2d at 540

(citation omitted).

                                 III.

     To convict an individual of illegally possessing drugs, the

Commonwealth must establish that the defendant possessed an

illicit substance and appreciated its illegal "nature and

character."     Birdsong v. Commonwealth, 37 Va. App. 603, 607, 560

S.E.2d 468, 470 (2002); see Ritter v. Commonwealth, 210 Va. 732,

741, 173 S.E.2d 799, 805 (1970).    The Commonwealth can prove

constructive possession with "'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

                                 - 6 -
and character of the substance and that it was subject to his

dominion and control.'"     Birdsong, 37 Va. App. at 607-08, 560

S.E.2d at 470 (quoting Glasco v. Commonwealth, 26 Va. App. 763,

774, 497 S.E.2d 150, 155 (1998)); see also Haskins v.

Commonwealth, 31 Va. App. 145, 150, 521 S.E.2d 777, 779 (1999)

(citations omitted).    A suspect's actual possession of drugs,

however, permits the inference that he is aware of its illegal

nature and character.     See Josephs v. Commonwealth, 10 Va. App.

87, 101, 390 S.E.2d 491, 498-99 (1990) (en banc) (citation

omitted); Armstrong v. Commonwealth, 29 Va. App. 102, 114, 510

S.E.2d 247, 252-53 (1999).

     Applied to this case, these principles confirm that the

Commonwealth presented sufficient evidence to convict Chism.

Officer Jennings discovered Tonita digital scales in Chism's

kitchen.   Knowing that drug dealers routinely used similar

scales, Jennings removed the scales from the kitchen shelf to

inspect them.   He noticed a white residue plainly appearing on

the face of the scales, which he suspected to be cocaine.     Chism

admitted owning the scales.    From the fact that cocaine residue

was visibly apparent to Jennings immediately upon examination,

the trial court could reasonably infer that Chism, the owner and

possessor of the scales, also knew of the residue's presence.

     Despite direct evidence of Chism's admitted ownership of

the scales and the visible cocaine residue on them, Chism


                                 - 7 -
characterizes the case against him as one resting solely on

circumstantial evidence.   We believe this view "mischaracterizes

the Commonwealth's evidence."    Floyd v. Commonwealth, 31

Va. App. 193, 198, 522 S.E.2d 382, 384 (1999).   "Direct evidence

is evidence that, if believed, resolves a matter in issue."       Id.

"Conversely, circumstantial evidence, even if accepted as true,

requires additional reasoning to accept the proposition to which

the evidence is directed."    Id. (citing McCormick On Evidence

§ 185 at 339 (4th ed. 1992)).   The incriminating evidence in

this case —— visible cocaine residue on digital scales

admittedly owned and possessed by Chism —— requires little, if

any, "additional reasoning," id., to lead to the conclusion

reached by the trial court.

     In any event, even if the Commonwealth's case rested solely

on circumstantial evidence, we still would not conclude that the

trial court plainly erred in convicting Chism.   Chism's attempt

at a reasonable hypothesis of innocence (buying cocaine-dusted

scales solely for after-market resale) fell short, in the

estimation of the fact finder, of being a reasonable explanation

of the true facts.   That result is hardly surprising given the

fact that (i) digital scales of this type are "consistent with

the distribution of cocaine," 2 (ii) other drugs were found in


     2
       Indeed, the presence of digital scales can be a factor in
finding a person guilty of possession of cocaine with intent to
distribute. See, e.g., McCain v. Commonwealth, 261 Va. 483,
                                - 8 -
plain view inside Chism's residence, and (iii) it is simply

unreasonable to believe Chism did not see the cocaine residue

plainly visible on the scales.

     Because reasonable jurists could disagree on the

evidentiary weight of these facts, as well as the inferences

that follow from them, we cannot conclude the trial judge acted

arbitrarily in rejecting Chism's proffered hypothesis.   As a

fact finder, the trial judge had the discretion to reject

Chism's self-serving explanation and conclude that, by giving

it, Chism was simply "lying to conceal his guilt."   Shackleford

v. Commonwealth, 262 Va. 196, 209, 547 S.E.2d 899, 907 (2001);

Dowden v. Commonwealth, 260 Va. 459, 469, 536 S.E.2d 437, 442

(2000); Mughrabi v. Commonwealth, 38 Va. App. 538, 548, 567

S.E.2d 542, 546 (2002).

                                  IV.

     Whether measured in terms of direct or circumstantial

evidence, the Commonwealth's case against Chism provided a

sufficient basis for conviction on the cocaine possession and




493, 545 S.E.2d 541, 547 (2001); White v. Commonwealth, 25
Va. App. 662, 668, 492 S.E.2d 451, 454 (1997) ("White's
possession of an electronic scale concealed in his car and the
crack cocaine shavings also found in the car provide a
sufficient basis to support an inference that White was engaged
in cutting up and weighing cocaine in his car.").
                                 - 9 -
simultaneous possession of cocaine and firearms.   As a result,

we affirm the trial court's decision on both charges.

                                                   Affirmed.




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