                                COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Bumgardner and Senior Judge Overton
Argued at Richmond, Virginia


MARCUS GILLIAM
                                                            MEMORANDUM OPINION* BY
v.     Record No. 2455-02-2                                   JUDGE LARRY G. ELDER
                                                                 OCTOBER 14, 2003
COMMONWEALTH OF VIRGINIA


                  FROM THE CIRCUIT COURT OF DINWIDDIE COUNTY
                               James F. D'Alton, Judge

               (Stephen L. Hewlett, on brief), for appellant. Appellant submitting
               on brief.

               (Jerry W. Kilgore, Attorney General; John H. McLees, Senior
               Assistant Attorney General, on brief), for appellee. Appellee
               submitting on brief.


       Marcus Gilliam (appellant) appeals from his bench trial conviction for attempting to

deliver marijuana to a prisoner in violation of Code §§ 18.2-26 and 18.2-474.1.1 On appeal, he

contends the evidence was insufficient to support his conviction because testimony from credible

defense witnesses contradicted the Commonwealth's evidence that appellant was the only person

who had an opportunity to hide the marijuana in the men's room of the Dinwiddie County

Sheriff's Office. The Commonwealth contends appellant failed to preserve this issue for appeal.

We assume without deciding that appellant properly preserved for appeal his challenge to the

sufficiency of the evidence but conclude the evidence supports his conviction. Thus, we affirm.



       * Pursuant to Code § 17.1-413, this opinion is not designated for publication.
       1
           The indictment and sentencing order reference both the substantive statute and the
attempt statute. However, because the substantive statute itself specifically proscribes attempts,
reference to Code § 18.2-26 is unnecessary. Because the sentencing order references both
statutes, this opinion does so as well.
       Under familiar principles of appellate review, we must examine the evidence in the light

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

therefrom. Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987). In

assessing witness credibility, the fact finder may accept the parts of a witness' testimony it finds

believable and reject other parts as implausible. Pugliese v. Commonwealth, 16 Va. App. 82, 92,

428 S.E.2d 16, 24 (1993). "Determining the credibility of witnesses who give conflicting

accounts is within the exclusive province of the [trier of fact], which has the unique opportunity

to observe the demeanor of the witnesses as they testify." Lea v. Commonwealth, 16 Va. App.

300, 304, 429 S.E.2d 477, 479 (1993). The conclusions of the fact finder on issues of witness

credibility may be disturbed on appeal only if this Court finds that the witness' testimony was

"inherently incredible, or so contrary to human experience as to render it unworthy of belief."

Fisher v. Commonwealth, 228 Va. 296, 299-300, 321 S.E.2d 202, 204 (1984).

       Further, "[c]ircumstantial 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).

"[T]he Commonwealth need only exclude reasonable hypotheses of innocence that flow from the

evidence, 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).

       Here, appellant conceded at trial that the issue was whether someone else entered the

men's restroom at the Dinwiddie County Sheriff's Office after appellant had departed and before

Deputy Dwayne Snead re-entered and searched, leaving open the possibility that someone else

placed the bag of marijuana in the toilet brush holder. Appellant conceded at trial "the deputy's

testimony is that nobody else went in the bathroom after [appellant]." The evidence in the

record, viewed in the light most favorable to the Commonwealth, supports this assertion.


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       Under the Commonwealth's evidence, the toilet brush holder and the rest of the bathroom

were free of contraband when Deputy Snead searched at around 7:00 p.m. Deputy Perry Lynch

observed Deputy Snead enter and exit the bathroom at that time. Deputy Lynch then observed

the bathroom without interruption until Deputy Snead entered and searched again at 7:17 p.m., at

which time he found the bag of marijuana in the toilet brush holder. Deputy Lynch testified

without equivocation that no one other than appellant entered the men's restroom during that

time. Deputy Snead confirmed that he heard the door open and close twice during that period of

time, which was consistent with Deputy Lynch's testimony that only one person, appellant, was

in the restroom during that time.

       The trial court was entitled, as it did expressly, to accept as credible the testimony of

Deputies Lynch and Snead establishing that no one other than appellant entered the restroom

before Deputy Snead found the marijuana and to simultaneously reject the testimony of

appellant's brother-in-law and another witness that two other people entered and exited the

restroom in the interim. Further, appellant admitted that he was a user of marijuana. The only

hypothesis flowing from the evidence, viewed in the light most favorable to the Commonwealth,

is that appellant was the person who secreted the bag of marijuana in the toilet brush holder.

       For these reasons, we hold the evidence was sufficient to prove appellant committed the

charged offense. Therefore, we affirm.

                                                                                           Affirmed.




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