COURT OF APPEALS OF VIRGINIA
Present: Judges El der, Petty and Alston

ROBERT D. DICKERSON OPINION BY v. Record No. 1215-10-1 JUDGE WILLIAM G. PETTY JUNE 14, 2011 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON Louis R. Lerner, Judge (Kimberly Enderson Hensley; Offi ce of Public Defender, on brief), for appellant. Appellant submitting on brief. (Kenneth T. Cuccinelli, II , Attorney General; Leah A. Darron, Senior Assistant Attorney General, on brief), for appellee. Appellee submitting on brief.
Appellant, Robert Dickerson, was convicted in a bench trial of cocaine possession in violation of Code § 18.2-250. On appeal, Dicker son argues the evidence was insufficient to convict him of this crime. Because Dickerson di d not properly preserve this argument, we affirm his conviction. In early April of 2009, a poli ce officer for the City of Hampton arrested Dickerson for public intoxication after finding him passed out in a car blocki ng the driveway of a private residence. As the officer rem oved Dickerson from the car to arre st him, the officer noticed a scale with what appeared to be marijuana residue on it near Dickerson’s left thigh. The officer searched Dickerson incident to his arrest and discovered marijuana and cocaine in his pockets. The officer testified to these facts at a benc h trial. At the close of the Commonwealth’s evidence, Dickerson made a motion to strike th e evidence “based on the insufficiency of the- 2 - evidence,” but argued only that the police unlawfully searched him. 1 Subsequently, Dickerson testified that he had no idea where the cocaine came from, that it was not in his pockets, and that it was not his. Dickerson never made a motion to strike after the close of all the evidence. 2 Instead, Dickerson’s counsel made a one-sentenc e closing argument, saying, “Your Honor, my client indicates clearly under oath that that wa s not his cocaine, that he never possessed that cocaine and I would submit it to th e Court with that.” Evidently choosing to believe the officer and disbelieve Dickerson, the tr ial court found Dickerson guilty of cocaine possession. This appeal followed. Rule 5A:18 states 3 : “No ruling of the trial court . . . will be considered as a basis for reversal unless the objection was stated together with the grounds therefor at the time of the ruling . . . .” “Not just any objection will do. It must be both specific and timely —so that the trial judge would know the partic ular point being made in time to do something about it.” Thomas v. Commonwealth , 44 Va. App. 741, 750, 607 S.E.2d 738, 742, adopted upon reh’g en banc , 45 Va. App. 811, 613 S.E.2d 870 (2005). “The goal of the contemporaneous objection rule is to avoid unnecessary appeals, reversal s and mistrials by allowi ng the trial judge to

1 Generally, “a motion to strike can never be a proper vehicle to argue suppression of illegally obtained evidence since the questions of legal sufficiency and constitutional compliance are fundamentally different questions requiring different analyses.” Arrington v. Commonwealth , 53 Va. App. 635, 642 n.12, 674 S.E.2d 554, 558 n.12 (2009).

2 “‘[W]hen a defendant elects to present evid ence on his behalf, he waives the right to stand on his motion to strike the evidence made at the conclusion of th e Commonwealth’s case.’” McQuinn v. Commonwealth , 20 Va. App. 753, 755, 460 S.E.2d 624, 625 (1995) (quoting White v. Commonwealth , 3 Va. App. 231, 233, 348 S.E.2d 866, 867 (1986)).

3 Effective July 1, 2010, Rule 5A:18 was revise d to state that “[n] o ruling of the trial court . . . will be considered as a basis for reve rsal unless an objection wa s stated with reasonable certainty at the time of the ruling . . . .” Because the proceedings below were completed prior to this revision taking effect, we will rely on the language of Rule 5A:18 that was then in effect. See Fails v. Va. State Bar , 265 Va. 3, 5 n.1, 574 S.E.2d 530, 531 n.1 (2003) (applying the Rule of Court in effect at the time of the proceedings below).- 3 - intelligently consider an issue and, if necessary, to take corrective action.” Campbell v. Commonwealth , 12 Va. App. 476, 480, 405 S.E.2d 1, 2 (1991) (en banc) (citing Head v. Commonwealth , 3 Va. App. 163, 167, 348 S.E.2d 423, 426 (1986)).
In Williams v. Commonwealth , 6 Va. App. 412, 368 S.E.2d 293 (1988), a divided panel of this Court held that while a motion to strike made at the close of all the evidence could preserve a challenge to the sufficiency of the ev idence in a bench trial, a closing argument could

not. Id. at 413-14, 368 S.E.2d at 293-94. However, th is Court subsequently reversed that holding in Campbell , 12 Va. App. 476, 405 S.E.2d 1, holding th at an appellant has preserved a challenge to the sufficiency of the evidence in a bench trial when he makes an appropriate argument in a motion to strike at the close of the Commonwealth’s evidence and then renews this argument in closing. Id. at 478, 405 S.E.2d at 1-2. We have therefore held since Campbell that an appropriate argument made during closing, or “summation,” will preserve a challenge to the sufficiency of the evidence in a bench trial. E.g. , Delaney v. Commonwealth , 55 Va. App. 64, 66, 683 S.E.2d 834, 835 (2009) (citing Howard v. Commonwealth , 21 Va. App. 473, 478, 465 S.E.2d 142, 144 (1995)); Howard , 21 Va. App. at 478, 465 S.E.2d at 144 (citing Campbell , 12 Va. App. at 478-81, 405 S.E.2d at 1-3). However, not every argument made in su mmation is an argument attacking the sufficiency of the evidence. As the Court explained in Campbell , a “closing argument may address other issues,” such as “a statute of limitations, an affirmative defense or the weight of the evidence .” Campbell , 12 Va. App. at 481, 405 S.E.2d at 3 (emphasis added). Generally, a closing argument focused only on the factual pe rsuasiveness of the evidence, that is, the credibility of the witnesses or the weight of the ev idence, is distinct from a challenge to the legal sufficiency of the evidence. A sufficiency challenge requires the trial court to view the evidence in the light most favorable to the Commonwealth. Cf. Cooper v. Commonwealth , 54 Va. App.- 4 - 558, 562, 680 S.E.2d 361, 363 (2009) (discussing the su fficiency standard of review employed by an appellate court). “Viewing the [evidence] through this eviden tiary prism requires [the trial court] 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 Commonwealth and all fair inferences to be drawn therefrom.’” Id. (quoting Parks v. Commonwealth , 221 Va. 492, 498, 270 S.E.2d 755, 759 (1980)). An argument on the merits , however, employs a very different evidentiary prism. This argument asks the trial court to reject any of the Commonwealth’s evidence that is inconsistent with the accused’s theory of the case and to accept instead the accused’s interpretation of the evidence. In light of the different arguments that the accused could present to the trial court, Rule 5A:18 requires the accused to specifically raise a legal challenge to the sufficiency of the evidence in order to preserve that issue for appe al. Generally, this is easily achieved when the accused makes a motion to strike the evidence. By utilizing that device, the accused has a better opportunity to adequately alert th e trial court to both the relief being sought and, as importantly, the basis for that relief. 4 However, when the accused elects to forgo a motion to strike and proceed directly to closing argumen t, it is incumbent on him to make the trial court aware that he is challenging something other than the veracity of the evidence that supports the Commonwealth’s theory. As Campbell points out, the sufficiency challenge must be clear enough for the trial court to discern its presence a nd to be able to distinguish it from an argument

4 For instance, on appeal Dickerson argues that “[t]he Commonwealth failed to exclude the reasonable hypothesis that appe llant truly had no knowledge of th e cocaine.” He then cited Young v. Commonwealth , 275 Va. 587, 659 S.E.2d 308 (2008), in support of that argument. Had this argument been presented to the trial court, it would have alerted the court to his challenge that the officer’s testimony and the r easonable inferences to be drawn from that testimony were insufficient to prove one of the re quisite elements of the offense. At trial, however, he simply restated his own testimony, which, unless incriminating, is quite frankly irrelevant to a legal sufficiency analysis.- 5 - on the merits. Campbell , 12 Va. App. at 481, 405 S.E.2d at 3 (holding that “if the issue of sufficiency is clearly presented to the trial court . . . in a closing argument,” the issue is preserved for appeal (emphasis added)). “Not ever y closing argument accomplishes this objective.” 5 Id. An argument focused only on which witness is mo re worthy of belief fails to achieve this objective, and therefore the argument does not pr operly preserve a sufficiency challenge for appellate review. 6 Id. ; see Code § 8.01-384. Here, Dickerson made no motion to strike at the close of all the evidence in his bench trial. Accordingly, he must rely upon his clos ing argument to preserve his challenge to the sufficiency of the evidence. In his brief clos ing argument, Dickerson’s counsel did nothing more than ask the trial court, sitting as the fact-finder, to disbelieve the police officer’s testimony and believe Dickerson’s testimony. This argument merely asked the court to be lieve his denial that he possessed the cocaine. Dickerson never aske d the court to rule th at the testimony of the officer was legally insufficient to support any element of the charge. Accordingly, Dickerson failed to preserve his challenge to the sufficiency of the evidence in the trial court, and we are therefore precluded from consider ing that argument on appeal. See Rule 5A:18. Thus, we affirm Dickerson’s conviction. Affirmed.

5 Nor does every motion to strike accomplish this objective. See, e.g. , Scott v. Commonwealth , 58 Va. App. 35, 44-45, 707 S.E.2d 17, 22 (2011) (holding that an argument made in a motion to strike challenging onl y the sufficiency of the evidence to support first-degree murder failed to preserve a sufficien cy challenge to the le sser-included charge of involuntary manslaughter).

6 If arguments of this sort were adequate, the rule would be rende red meaningless, since every closing argument in a criminal case (sho rt of a concession of guilt) would permit a defendant to raise a sufficiency challenge on appeal.- 6 - Elder, J., concurring in the judgment. The majority properly affirms Dickerson’s c onviction for cocaine possession in violation of Code § 18.2-250. However, I would reach this conclusion on the merits of the case because, unlike the majority, I believe the issue of whethe r Dickerson knew of the presence and character of the cocaine found in his pants pockets was prope rly preserved. Therefore, I write separately to concur in the judgment only. The majority holds that counsel’s “one-s entence closing argument” “did nothing more than ask the trial court, sitting as fact-finder, to disbelieve the police officer’s testimony and believe Dickerson’s testimony.” Th e majority believes this fall s short of a challenge to the sufficiency of the evidence, which asks the tria l court to view the evidence in the light most favorable to the Commonwealth and discard the appellant’s evidence, because it instead asked the trial court to discard the Commonwealth’s evidence. The majority reasons that because an argument on the merits “employs a very differe nt evidentiary prism” than the sufficiency challenge Dickerson argues on appeal, supra at 4, Rule 5A:18 bars our consideration of the merits of Dickerson’s appeal. In my view, however, distingui shing a “closing argument [t hat] focuse[s] only on the factual persuasiveness . . . or the weight of the evidence” from “a challenge to the legal sufficiency of the evidence” draws a distinction without a difference, particularly in this case. 7 Counsel argued that the cocaine “was not his” and “that he ne ver possessed th[e] cocaine.” Counsel based this argument on Dickerson’s testimony and therefore “asked the court to disbelieve the police officer’s testimony and believe Dickerson’s testimony”; i.e., evaluate the

7 Of course, I do not suggest that any cl osing argument may properly preserve a sufficiency challenge for appellate re view. Rather, I believe that in this particular case , counsel’s brief closing argument highlighted the precise issue that is now before this Court: whether or not appellant possessed the contraband.- 7 - case on the merits by discerning the pr obative value of the evidence. Supra at 5. In response, the trial court held that it was “convinced beyond a r easonable doubt that [Dickerson] [was] guilty of [cocaine possession].” By disbelieving Dicker son’s testimony, the trial court necessarily found the remaining evidence to be sufficient. In ot her words, the probative value of that evidence— the police officer’s testimony versus Dickers on’s testimony—was sufficient to convict so, therefore, the legal sufficiency of the evidence was also met. C ounsel argued, albeit briefly, that Dickerson did not know the cocaine was in his pocket, which is the argument he raises now on appeal. So despite the phrasi ng of the closing argument, Dick erson “raised the issue of the sufficiency of the evidence of [constructive po ssession]” and gave “the trial court . . . an opportunity to . . . resolve the i ssue now raised on appeal.” Campbell v. Commonwealth , 12 Va. App. 476, 481, 405 S.E.2d 1, 3 (1991) (en banc). On the merits of Dickerson’s appeal, I be lieve the evidence is sufficient to support a finding that Dickerson had the re quisite awareness of the nature and character of the cocaine because the police officers found th e contraband in his pants pocket. “In a prosecution for possessi on of a controlled substance, the Commonwealth must produce evidence sufficient to support a co nclusion beyond a reasonable doubt that the defendant’s possession of the drug was knowing and intentional.” Young v. Commonwealth , 275 Va. 587, 591, 659 S.E.2d 308, 310 (2008). “The Common wealth must also establish that the defendant intentionally and consciously possessed it with knowledge of its na ture and character.” Burton v. Commonwealth , 215 Va. 711, 713, 213 S.E.2d 757, 758 (1975). Such knowledge may be shown by evidence of the acts, statements or conduct of the accused. See Garland v. Commonwealth , 225 Va. 182, 184, 300 S.E.2d 783, 784 (1983).
In Young , ambiguous circumstantial evidence cast doubt on whether the defendant knew of the nature and character of the contraband found in her purse. 275 Va. at 592, 659 S.E.2d at- 8 - 311. Specifically, the arresting officer found a prescription bottle labeled “OxyContin,” a controlled substance. The officer could not determ ine the nature of the pi lls without the use of forensic testing, which revealed the pills containe d neither OxyContin nor its generic equivalent. Id. at 589, 659 S.E.2d at 309. Further, the pills were prescribed to an in dividual other than the defendant. From this evidence, the Supreme Court of Virginia held it could envision “countless scenarios” in which the defendant could have possessed the contraba nd without fully knowing the character and nature of the pills a nd it reversed the defendant’s conviction. Id. at 592, 659 S.E.2d at 310-11. Such evidence is lacking in the present case to support any reas onable hypothesis of innocence that does not spring from Dickerson’s imagination. The suspected crack cocaine was wrapped in a clear plastic baggie, allowing the police officer to immediately suspect the true nature of the substance. No evidence existed that another individual wa s identifiably implicated in the ownership of Dickerson’s vehicle, contra band, or pants. Dickers on never contended that the pants belonged to someone else. See Horne v. Commonwealth , No. 1247-09-2, 2010 Va. App. LEXIS 220, at *9 (June 1, 2010) (“The jury, as the trier of fact and determiner of witness credibility, could reject appellant’s story th at the pants were not his and conclude that the velour pants, and any item in the pockets of t hose pants, belonged to appellant.”). Dickerson offered no explanation concerning how a substan ce could enter his pants without his knowledge. Indeed, Dickerson testified that he was aware of the marijuana found in his left rear pants pocket. The trial court therefore reasonably discounted Di ckerson’s claim that he did not know about the cocaine and concluded he was lying to conceal his guilt. See Cordon v. Commonwealth , 280 Va. 691, 695, 701 S.E.2d 803, 805 (2010) (“[I]f a defendant’s denial of circumstances relating to an illegal act is inconsistent with prev ious statements or facts, it is fa ir to infer that such denial was for the purposes of concealing guilt.”).- 9 - Dickerson’s actual possession of the cocaine in his pants pockets, combined with facts that contradicted his disclaimer of ownership of the crack cocaine, provid e sufficient evidence to prove beyond a reasonable doubt th at he knowingly possessed the co caine. Accordingly, I would affirm his conviction for possession of cocaine on that ground rather than applying Rule 5A:18.