                               COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Frank and Haley
Argued at Chesapeake, Virginia


JAMES COUNCIL WALKER
                                                              MEMORANDUM OPINION* BY
v.     Record No. 2509-05-1                                     JUDGE LARRY G. ELDER
                                                                   OCTOBER 31, 2006
COMMONWEALTH OF VIRGINIA


                   FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
                               Charles D. Griffith, Jr., Judge

                 Steven M. Miyares, Assistant Public Defender (Norfolk Public
                 Defenders Office, on brief), for appellant.

                 Karri B. Atwood, Assistant Attorney General (Robert F. McDonnell,
                 Attorney General, on brief), for appellee.


       James Council Walker (appellant) appeals from his bench trial conviction for possessing

an unauthorized weapon capable of causing death or injury while a prisoner in a state, local or

community correctional center in violation of Code § 53.1-203(4). On appeal, he contends the

evidence was insufficient to prove he knowingly possessed the razor blade found beneath the

insole of his shoe. We hold the evidence, viewed in the light most favorable to the

Commonwealth was sufficient to prove knowing possession, and we affirm.

       Under familiar principles of appellate review, we examine the evidence in the light most

favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible

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

The fact finder is not required to believe all aspects of a witness’ testimony; it may accept some

parts as believable and reject other parts as implausible. See, e.g., Pugliese v. Commonwealth,

       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
16 Va. App. 82, 92, 428 S.E.2d 16, 24 (1993). “Circumstantial evidence is as competent and is

entitled to as much weight as direct evidence, provided it is sufficiently convincing to exclude

every reasonable hypothesis except that of guilt.” Coleman v. Commonwealth, 226 Va. 31, 53,

307 S.E.2d 864, 876 (1983).

       “To convict a person of possess[ing contraband,] ‘the Commonwealth must prove that the

defendant was aware of the presence and character of the [contraband] and that he intentionally

and consciously possessed [it].’” Castaneda v. Commonwealth, 7 Va. App. 574, 583, 376 S.E.2d

82, 86 (1989) (en banc) (quoting Andrews v. Commonwealth, 216 Va. 179, 182, 217 S.E.2d 812,

814 (1975)). “Physical possession giving the defendant ‘immediate and exclusive’ control is

sufficient.” Gillis v. Commonwealth, 215 Va. 298, 301-02, 208 S.E.2d 768, 771 (1974).

       Appellant concedes on brief that he was in actual possession of the razor blade found

beneath the insole of his shoe, but he contends the evidence fails to prove he intentionally and

consciously possessed it. He expressly denies presenting as a hypothesis of innocence the theory

that “an official in the Chesapeake City Jail planted the razor [blade] in [his] shoe prior to [his]

being transported to Norfolk City Jail” and expressly “concedes that such a hypothesis should

likely be rejected.” He focuses, instead, on his contention that another inmate “might have been

able to sneak a razor [blade] past the searches” and might “have hidden the razor [blade] in

[appellant’s] shoe” while the shoeless appellant slept “in order to avoid punishment for

possession of such contraband” if it had been found on him in the impending search.

       What appellant fails to acknowledge, however, is that this hypothesis depends on his

testimony that he left his shoes unattended beneath his bunk while he slept and at a time when

another inmate in the holding cell knew a search was imminent and had an incentive to discard

the razor blade in order to avoid being caught with it himself. However, the trial court, as the

finder of fact, was entitled to reject the testimony of appellant, who had multiple prior felony

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convictions, as not credible. Once the trial court rejected appellant’s testimony that he had been

asleep with his shoes off immediately prior to the search, the remaining evidence, viewed in the

light most favorable to the Commonwealth, provided no indication that anyone other than

appellant had access to his shoes at a time when they also had an incentive to hide the razor

blade inside. “[T]he Commonwealth need only exclude reasonable hypotheses of innocence that

flow from the evidence,” viewed in the light most favorable to the Commonwealth, “not those

that spring from the imagination of the defendant.” Hamilton v. Commonwealth, 16 Va. App.

751, 755, 433 S.E.2d 27, 29 (1993).

       Further, as the trial court expressly found, if another inmate had been able to sneak the

razor blade onto the second floor of the Norfolk City Jail despite an initial strip search, appellant

would have been equally able to do so. The only reasonable hypothesis flowing from the

evidence as found by the trial court, viewed in the light most favorable to the Commonwealth,

was that the razor blade and its worn cardboard casing had been in appellant’s actual possession,

underneath appellant’s left insole, for some time prior to his entering the Norfolk Jail and that

they were found during the 7:30 p.m. strip search, but not the earlier 2:00 p.m. strip search, only

because Deputy Robinson, a newly trained and particularly diligent officer, exercised such care

in conducting the latter search of appellant’s shoe. Thus, the evidence, viewed in the light most

favorable to the Commonwealth, was sufficient to prove appellant’s guilt beyond a reasonable

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

“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” and that issue on appeal “is not whether ‘there is some evidence to support’

these hypotheses” but rather “whether a reasonable [fact finder], upon consideration of all the




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evidence, could have rejected [appellant’s] theories in his defense and found him guilty . . .

beyond a reasonable doubt”).

       For these reasons, we hold the evidence was sufficient to prove appellant’s knowing

possession of the razor blade, and we affirm his conviction.

                                                                                          Affirmed.




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