COURT OF APPEALS OF VIRGINIA

Present: Judges Humphreys, Causey and Senior Judge Clements

SHAUNACY ROY BISHOP MEMORANDUM OPINION * v. Record No. 1 057

- 21

- 2 PER CURIAM AUGUST 16, 2022 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF AMELIA COUNTY

Paul W. Cella , Judge ( David G. M oss ; The Law Office of David G. Moss, PLLC, on brief) , for appellant. Appellant submitting on brief. ( Jason S. Miyares, Attorney General; Leah A. Darron , Senior Assistant Attorney General , on brief ) , for appellee.

T he Circuit Court of Amelia County , following a bench trial, convicted Shaunacy Roy Bishop of possessing a Schedule I or II controlled substance with intent to distribute , in violation of Code § 18.2

- 248 , and possessing a firearm with knowledge and intent while possessing such a substance with the intent to distribute , in violation of Code § 18.2

- 308.4

. 1 Bishop was sentenced to a total term of twenty years’ incarceration on the two charges with f ourteen years and six months suspended

. On appeal, Bishop challenges the sufficiency of the evidence to sustain his convictions. After examining the briefs and record in this case, the panel unanimously agrees that because “the appeal is wholly without merit,” oral argument is unnecessary. Therefore, we dispense with oral argument in accordance with Code § 17.1 403(ii)(a) ; Rule 5A:27(a).

* Pursuant to Code § 17.1

- 413, t his opinion is not designated for publication.

1 The circuit court also convicted Bishop of one count of failure to appear, which Bishop did not appeal. UNPUBLISHED- 2

- BACKGROUND At a bench trial, Amelia Cou nty Sheriff’s Deputy Russell Dunford testified that in January 2020, he went to an Amelia County campground to execute a warrant for Bishop’s arrest. The campground’s owner, Phillip Butler, gave Deputy Dunford permission to search a camper. When Deputy D unford entered the camper, he found Bishop in its kitchen area and arrested him. Deputy Dunford saw suspected drug s and paraphernalia sitting on the kitchen table “right beside” Bishop

. Deputy Dunford secured the camper and obtained a warrant to search it

. During the ensuing search, Deputy Dunford found a backpack near the kitchen table , to the right of where Bishop had been standing and within his reach ; the backpack contained two cell phone s , a “ range finder scope ” 2 bearing Bishop’s name , and a .22

- caliber revolver. Deputy Dunford recovered four plastic bags containing a white substance and submitted them to the Department of Forensic Science (“DFS”). A DFS certificate of analysis , admitted without objection, report ed that one bag contai ned approximately 1.2411 grams of methamphetamine, the second bag contained approximately 1.1753 grams of methamphetamine, and the third and fourth bags contained a combined total of a

pproximately 10.4553 grams of methamphetamine. Deputy Dunford also

reco vered additional paraphernalia from a safe, including a set of digital scales, plastic bag gie s, and

a de minimis amount of methamphetamine

. Bishop moved to strike the evidence when the Commonwealth rested , arguing that nothing showed the drugs or revolver belonged to him , that he knew they were in the camper , or how long he had been inside it . H e contended that h is cooperation without any attempt to conceal or destroy the evidence was consistent with his lack of knowledge. He also a sserted that n othing linked him to the safe or its contents , the keys for which were found on Butler’s keyring in Butler’s vehicle.

2 The record does not explain what a “range finder scope” is, but Bishop did not contest that the item was found in the backpack and bore his name.- 3

-

Although the range finder scope in the backpack bore his name, Bishop contended that t he Commonwealth ’s proof did not exclu de the hypothesis that someone had borrowed or obtained the scope and put it in the backpack. The Commonwealth responded that the bags containing the drugs were in plain view on the table , and the backpack containing the revolver was within arm’s reach w hen Bishop was arrested. The circuit court denied Bishop’s motion to strike the evidence , finding that the evidence was sufficient to establish a prima facie case because Bishop was the sole occupant of the camper and in close proximity to the contraband

. Bishop did not call any new witnesses but did recall Deputy Dunford, who testified that one of the bags of methamphetamine had been found directly on top of Bishop’s cell phone. Bishop renewed his motion to strike, which the court again denied. As noted above, Bishop was convicted and sentenced to a term of twenty years’ incarceration with f ourteen years and six months suspended on these charges

. Bishop timely appe al ed

. ANALYSIS Bishop asserts that the evidence was insufficient to convict him of possession with intent to distribute because the Commonwealth failed to exclude the hypothesis that Bishop was at the camper to purchase drugs from its owner for his own per sonal consumption. He also contend s that the evidence was insufficient to convict him of the firearm charge because there was no evidence that he possessed the revolve r. 3 Bishop argues that t he Commonwealth failed to prove that he owned any of the items found in the camper , other than one cell phone and the scope.

3 Bishop also argues that if the Commonwealth’s evidence was insufficient to convict him of possession of ill egal drugs with the intent to distribute, his conviction under Code § 18.2

- 308.4 for possession of a firearm while in possession of methamphetamine must necessarily be vacated

.- 4

-

“When reviewing the sufficiency of the evidence, ‘[t]he judgment of the trial court is presumed correct and will not be disturbed unless it is plainly wrong or without evidence to support it. ’” Smith v. Commonwealth , 296 Va. 450, 460 (2018) (alteration in original) (quoting Commonwealth v. Perkins , 295 Va. 323, 327 (2018)). “In such cases, ‘[t]he Court does not ask
itself whether it believes that the evidence at the trial established guilt b eyond a reasonable doubt.’” Secret v. Commonwealth , 296 Va. 204, 228 (2018) (alteration in original) (quoting Pijor v. Commonwealth , 294 Va. 502, 512 (2017)). “Rather, the relevant question is whether ‘ any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’” Vasquez v. Commonwealth , 291 Va. 232, 248 (2016) (quoting Williams v. Commonwealth , 278 Va. 190, 193 (2009)). “If there is evidentiary support for t he conviction, ‘the reviewing court is not permitted to substitute its own judgment, even if its opinion might differ from the conclusions reached by the finder of fact at the trial.’” Chavez v. Commonwealth , 69 Va. App. 149, 161 (2018) (quoting Banks v. Commonwealth , 67 Va. App. 273, 288 (2017)). “Under well

- settled principles of appellate review, we consider the evidence presented at trial in the light most favorable to the Commonwealth, the prevailing party below.” Vay v. Commonwealth , 67 Va. App. 236, 242 (2017) (quoting Smallwood v. Commonwealth , 278 Va. 625, 629 (2009)). “This principle requires us to ‘discard the evidence of the accused in conflict with that of the Commonwealth, and regard as true all the credible evidence favorable to the Commonwe alth and all fair inferences to be drawn therefrom.’” Id. (quoting Parks v. Commonwealth , 221 Va. 492, 498 (1980)). “A conviction for unlawful possession of a firearm or controlled substance may be based solely on evidence of constructive possession. ” Wr ight v. Commonwealth , 278 Va. 754, 759 (2009) . “ Whether evidence is sufficient to prove constructive possession ‘ is largely a factual ’ question and requires circumstantial proof ‘ that the defendant was aware of the presence and- 5

-

character of the [ contraban d ] and that the [ contraband ] was subject to his dominion and control. ’” McArthur v. Commonwealth , 72 Va. App. 352, 368 (2020) (quoting Smallwood , 278 Va. at 630 )

. The Commonwealth may meet this burden with either direct or circumstantial evidence. Id.
I ndeed , “ [a] bsent a direct admission by the defendant, intent to distribute must necessarily be proved by circumstantial evidence.” Cole v. Commonwealth , 294 Va. 342, 361 (2017) (quoting Williams , 278 Va. at 19 4). “Circumstantial evidence is evidence of facts or circumstances not in issue from which facts or circumstances in issue may be inferred.” Byers v. Commonwealth , 23 Va. App. 146, 151 (1996) (alteration omi tted) (quoting 1 Charles E. Friend, The Law of Evidence in Virginia § 12

- 1 (4th ed. 1993)). “[C]ircumstantial evidence ‘is as competent as direct evidence’ to prove the elements of a crime, ‘provided it is sufficiently convincing to exclude every reasonab le hypothesis except that of guilt.’” Young v. Commonwealth , 70 Va. App. 646, 653 (2019) (alteration omitted) (quoting Simon v. Commonwealth , 58 Va. App. 194, 206 (2011)). “ ‘[ T ] he hypotheses which must be thus excluded , ’ ” however, “ ‘ are those which flow from the evidence itself, and not from the imaginations of ’ the defense. ” Haas v. Commonwealth , 299 Va. 465, 468 (2021) (quoting Cook v. Commonwealth , 226 Va. 427, 433 (1983) )

. “Whether an alternate hypothesis of innocence is reasonable is a questio n of fact and, therefore, is binding on appeal unless plainly wrong.” Holloway v. Commonwealth , 57 Va. App. 658, 666 (2011) (quoting Emerson v. Commonwealth , 43 Va. App. 263, 277 (2004)). As the circuit court noted, Deputy Dunford found Bishop alone in th e kitchen area of the
camper within arm’s reach of methamphetamine lying in plain view on the kitchen table. The court also noted that one of the bags of methamphetamine was lying directly on top of Bishop’s cell phone

. 4 The evidence therefore was sufficient to prove that Bishop constructively possessed the

4 Bishop admitted that the cell phone was his.- 6

-

methamphetamine because he was aware of its presence and character and it was under his dominion and control. McArthur , 72 Va. App. at 368. Circumstantial evidence tha t may be probative of an intent to distribute a controlled substance includes: the quantity of the drugs seized, the manner in which the drugs were packaged, and the presence of an unusual amount of cash, equipment associated with drug distribution, or
fir earms. Cole , 294 Va. at 361. In considering whether the evidence was sufficient to prove possession with intent to distribute, “ quantity, alone, may be sufficient to establish such intent if it is greater than the supply ordinarily possessed for one ’ s pe rsonal use. ” Dukes v. Commonwealth , 227 Va. 119, 122 (1984). Moreover, even a small quantity of drugs suggesting personal use s upport s an inference of an intent to distribute when the drugs are packaged for distribution. Cole , 294 Va. at 36 2. Thus, e ven discarding the evidence of the scales and baggies found in the safe, the evidence establishes that the methamphetamine in plain view was packaged for distribution. Two plastic bags each contained less than one - and

- a - quarter grams of methampheta mine and were found alongside more than ten grams of methamphetamine , suggesting that the larger amount was to be divided up into smaller quantitie s . A reasonable fact finder could infer from this evidence that Bishop intended to distribute the methamphet amine. Although Bishop argues that this circumstantial evidence does not exclude the possibility that he was in the camper to buy methamphetamine for personal use, that hypothesis of innocence is unsupported by the evidence. The circuit court expressly re jected it as unreasonable at trial , and th at decision was not plainly wrong or unsupported by the record. One bag of methamphetamine was found on top of Bishop’s phone while he was the only person inside the camper. The circuit court stated, “It’s very c lear that the defendant [was] the only one inside that trailer, and there’s no evidence that others at that time [were] inside the trailer.” Moreover, as the Commonwealth observes, Bishop had no money for a contemporaneous purchase . Accordingly, the evidence is- 7

-

sufficient to support an inference that Bishop possessed the drugs with the intent to distribute them and the circuit court’s conclusion was not erroneous

. Haas , 299 Va. at 468; Cole , 294 Va. at 362.
We also reject Bishop’s argument that the evidence did not establish that he possessed the revolver. As the circuit court noted, the revolver was found in the backpack that had been within arm’s reach of Bishop

. Significantly, t he backpack contained at least one item Bishop un disputedly owned: the scope. This evidence is sufficient to support an inference that the backpack was his and , therefore , that he was aware of the presence and character of the revolver and that it was within his control and dominion, again establishing constructive possession. McArthur , 72 Va. App. at 368. Bishop’s supposed hypothesis of innocence, that he earlier loaned the scope to the camper’s owner, who put it in the backpack without Bishop’s knowledge, is unsupported by any evidence. The circuit court , sitting as fact finder, rejected this hypothesis as unreasonable at trial. Consequently, the circumstantial evidence is sufficient to prove the required elements of the offense. Young , 70
Va. App. at 653 ; Haas , 299 Va. at 468. Finally, because we hold that the circuit court did not err in concluding that the evidence was sufficient to prove that Bishop possessed the methamphetamine with intent to distribute and that he possessed the revolver , Bishop’s argu ment regarding the suff iciency of the evidence to sustain his conviction under Code § 18.2

- 308.4 is precluded

. For the foregoing reasons, we affirm Bishop’s convictions. Affirmed.