COURT OF APPEAL S OF VIRGINIA

Present: Chief Ju dge Fitzpatrick, Judges Bumgardner and Frank Argued at Salem, Virginia

ERIC LAMONT PAYNE MEMORANDUM OPINION ∗ BY v. Record No. 3339-02-3 CHIEF JUDGE JOHANNA L. FITZPATRICK DECEMBER 2, 2003 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG J. Leyburn Mosby, Jr., Judge Herbert E. Taylor, III (Herbert E. Taylor, III, P.C., on brief), for appellant. Jennifer R. Franklin, Assistant Atto rney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.
Eric Lamont Payne (appellant) contends th e trial court erred in denying his motion to strike his charges of possessi on of cocaine under Code § 18.2-250, possession of a firearm after having been found guilty of a felony under Code § 18.2-308.2(ii), possession of a firearm while in possession of cocaine under Code § 18.2 -308.4, and obstruction of justice under Code § 18.2-460(A). He argues that the evidence wa s insufficient to prove him guilty beyond a reasonable doubt. Finding no error, we affirm.
I. BACKGROUND “When the sufficiency of the evidence is ch allenged on appeal, we determine whether the evidence, viewed in the light most favorable to the prevailing party, the Commonwealth, and the reasonable inferences fairly deducible from that evidence support each and every element of the charged offense.” Haskins v. Commonwealth, 31 Va. App. 145, 149-50, 521 S.E.2d 777, 779

∗ Pursuant to Code § 17.1-413, this opin ion is not designated for publication.- 2 - (1999). “In so doing, we must discard the evidence of the accused in conflict with that of the Commonwealth, and regard as true all the credible evidence favorable to the Commonwealth and all fair inferences that may be draw n therefrom.” Watkins v. Commonwealth, 26 Va. App. 335, 348, 494 S.E.2d 859, 866 (1998). So viewed, the evidence established that on January 23, 2002, Lynchburg Police Investigator Saxton (Saxton) received a cal l at approximately 5:10 p.m. from a reliable confidential informant, who stated that he had seen appellant in possession of cocaine. The informant described appellant’s appearance in detail. Saxton and other members of the Vice/Narcotics unit went to the location near 11th and Taylor St reets where appellant had been seen. Investigator Gauthier (Gauthier) wa s in an unmarked vehicle with Saxton, who was dressed in jeans and a T-shirt, and had his badge displayed on a chain around his neck. The other responding officers were in unmarked cars but were wearing T-shirts that stated “Police” in large yellow letters along the front and back and had a badge displayed. Tina Mitchell (Mitchell), who lived at 1101 Taylor Street, returned home from work at about 4:30 p.m. Shortly thereafter, she left her house to go to the co rner store with her boyfriend. Appellant, a friend of her son’s, wa s standing on the landing in front of her house. He was not allowed in the house when Mitchell wa s out. Mitchell testified that when she leaves the home she uses the front door and returns through the back door, and usually keeps a rug rolled up against the back door to prevent the cold from entering her home. She stated that when she left the house there was noth ing rolled up inside the rug and there was no cocaine or debris near her back door. She also te stified that she kept a bucket under the kitchen table to use when she scrubbed floors and that when she left the house there was no gun underneath her kitchen table or in the bucket.- 3 - After Mitchell left for the store, Saxton appro ached the Taylor Street area. When he was approximately a half block away from Mitc hell’s house, Saxton saw a person fitting the description of Eric Payne given by the informant, standing on the landing in front of Mitchell’s house. As the other investigators pulled into M itchell’s block of Taylor Street, Payne ran into Mitchell’s house. Saxton and Gaut hier continued up 11th Street a nd approached the rear of the building. When the officers arrived at the back door, appellant opened the door from the inside. Saxton and Gauthier announced that they were police officers, and appellant immediately shut the door. Gauthier grabbed the screen door to open it, and Saxton opened the main door. Saxton saw appellant walk from the kitchen, and st ep into the hallway, which he described as approximately three by six feet indiameter. He yelled to appe llant that he was a police officer and to get on the ground. When appellant did not obey the command, Saxton grabbed his shirt and a struggle ensued. When Saxton succeeded in getting appellant to the ground, appellant’s hands were underneath his body. Saxton repeatedly told appellant to get his hands out of his jacket, and finally had to force appellant’s hands behind his back and handcuff him. As Saxton picked appellant up from the ground, he observed tw enty-three plastic baggies with an off-white substance in them lying on the floor around them. Saxton photographed the baggies and searched the area. In the kitchen, Saxton found a silver semi-automatic handgun in a bucket under the table, and found marijuana in appellant’s pocket. During an interview with police, appell ant first denied that the gun found in the kitchen belonged to him, but later admitted to police th at the gun belonged to him and that he placed it there that day. The trial court found appellant guilty of possess ion of a firearm after being convicted of a felony, possession of a firearm while in possession of cocaine, possession of cocaine, possession- 4 - of marijuana, and misdemeanor obstruction of justice. 1 The trial court sentenced appellant to serve eleven years and twenty-f our months, with five years and three months suspended, and ordered that the firearm convic tions be served concurrently.
II. ANALYSIS Circumstantial evidence may establish the el ements of a crime, provided it excludes every reasonable hypothesis of innocence. See, e.g. , Tucker v. Commonwealth , 18 Va. App. 141, 143, 442 S.E.2d 419, 420 (1994). “The statement that circumstantial evidence must exclude every reasonable theory of innocence is simplyanother way of stati ng that the Commonwealth has the burden of proof beyond a reasonable doubt.” Commonwealth v. Hudson, 265 Va. 505, 513, 578 S.E.2d 781, 785 (2003). 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.” Id. Whether a hypothesis of innocence is reasonable is a question of fact, see Cantrell v. Commonwealth , 7 Va. App. 269, 290, 373 S.E.2d 328, 339 (1988), and a finding by the trial court is binding on appeal unless plainly wrong, see Glasco v. Commonwealth , 26 Va. App. 763, 774, 497 S.E.2d 150, 155 (1998).

1 A grand jury indicted appellant on June 3, 2002 for felony statutory burglary under Code § 18.2-91, possession of a firearm by a convicted felon under Code § 18.2-308.2, distribution of or possession withintent to distribute controll ed substances on or near a school under Code § 18.2-255.2, possession of a firearm while in possession of a Schedule I or II controlled substance under Code §§ 18.2-308.4 and 18.2-10, obstructing justice under Code § 18.2-460(C), misdemeanor possession of marijuana under Code § 18.2-250.1, and felony possession of cocaine with intent to distribute under Code § 18.2-248. Appellant pled guilty to the misdemeanor possession of marijuana charge and not guilty to the felonies. The trial court granted appellan t’s motion to strike the statutory burglary and possession of cocaine within one thousand feet of a school charges, and reduced the charge of obstruction of justice from a felony to a misd emeanor, finding that the Commonwealth proved obstruction under Code § 18.2- 460(A) without meeting the additional requirements of subsection (C). The court also reduced the possession of cocaine wi th intent to distribute charge to simple possession of cocaine.- 5 - “To convict a defendant of illegal possessi on of drugs, the Commonwealth must prove that the defendant was aware of th e presence and character of the drugs, and that he intentionally and consciously possessed them.” Andr ews v. Commonwealth, 216 Va. 179, 182, 217 S.E.2d 812, 814 (1975). Additionally, proof of actual posse ssion is not required; proof of constructive possession will suffi ce. Constructive possession may be established when there are ac ts, statements, or conduct of the accused or other facts or circumstances which tend to show that the accused was aware of both the presence and character of the substance and that it was subj ect to his dominion and control. Walton v. Commonwealth, 255 Va. 422, 426, 497 S.E.2d 869, 872 (1998) (internal quotations and citations omitted). “While mere proximity to contraband is insufficient to establish possession . . . ,” it is a factor “to be considered by the jury with other evidence in determining whether a defendant constructively possessed drugs.” Lane v. Commonwealth, 223 Va. 713, 716, 292 S.E.2d 358, 360 (1982). In this case, credible eviden ce supports the trial court’s judgment that appellant possessed the cocaine. When approached by the police, appe llant ran into the Mitchell house. Despite the police identifying themselves, appellant tried to fl ee and had to be wrestled to the floor. After the struggle there were twenty-three baggies of cocaine scattered nearby. Mitchell testified that there was no cocaine in the hall before she leftfor the store, only five minutes before she returned. Although appellant contends that th e Commonwealth failed to exclude the hypothesis that the cocaine was in the rug before appellant entered the home, no evidence substantiates that theory. The Commonwealth need only exclude hypotheses that flow from the evidence itself, not from the imagination of the defendant. See Cook v. Commonwealth , 226 Va. 427, 433, 309 S.E.2d 325, 327 (1983). The evidence does not s upport the hypothesis that someone other than the appellant put cocaine in the rug. We therefore hold that suffi cient evidence supports the trial court’s finding that appellant possessed cocaine.- 6 - Additionally, the evidence was sufficient to prove that a ppellant possessed the gun while possessing cocaine. Appellant admitted to Saxton that he put the gun in the trash “earlier in the day.” Mitchell testified that there was no gun underneath the bucket only five minutes before when she left home and that she had used the bucket the Monday before the day in question. Thus, the trial court reasonably inferred that appellant possessed the gun when he ran from Saxton and Gauthier, and put it underneath the buc ket to conceal it at the same time he possessed the baggies of cocaine, then returned to the hallway to confront the officers. It was uncontroverted that appellant had a prior felony conviction. Thus, credible evidence supports the trial court’s finding that appell ant possessed the gun while in possession of cocaine and while a convicted felon. Finally, we find that the evidence was suffici ent to prove that the defendant obstructed justice. The trial court reduced the charge from felony obstruction of justice under Code § 18.2-460(C), to misdemeanor obstruction of ju stice under Code § 18.2-460(A). That section states, in pertinent part, that If any person without just cau se knowingly obstructs a judge, magistrate, justice, juror, attorney for the Commonwealth, witness or any law-enforcement officer in the performance of his duties as such or fails or refuses without ju st cause to cease such obstruction when requested to do so by such judge, magistrate, justice, juror, attorney for the Commonwealth, witness, or law-enforcement officer, he shall be guilty of a Class 2 misdemeanor. “Impeding an officer’s duties does not requ ire the defendant to commit an actual or technical assault upon the officer. Rather, there must be acts clearly i ndicating an intention on the part of the accused to prevent the officer fr om performing his duty, as to ‘obstruct’ ordinarily implies opposition or resistance by dire ct action.” Craddock v. Commonwealth , 40 Va. App. 539, 552-53, 580 S.E.2d 454, 461 (2003) (internal citations and quotations omitted).- 7 - The evidence supports the trial court’s judgment that appellant continued to struggle with the police and refused to take his hands from underneath his body when ordered. The officers, clearly identified as police, ente red the back door, and saw appellant approach from the kitchen. They announced that they were police officers again, and told appellant to get down, which he refused to do and he had to be subdued. Theref ore, the trial court di d not err in finding the evidence sufficient to prove appellant obstructed justice by impeding the police officers in the performance of their duties. Finding no error, we affirm th e judgment of the trial court. Affirmed.