COURT OF APPEALS OF VIRGINIA 

Present: Judges Baker, Annunziata and Overton 

Argued at Norfolk, Virginia 

CARZELL BENTON, S/K/A 

 CARZELLE BENTON 

 MEMORANDUM OPINION* BY 

v. Record No. 1510-96-1 JUDGE ROSEMARIE ANNUNZIATA 

 MAY 13, 1997 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH 

Thomas S. Shadrick, Judge 

 Theresa B. Berry (Samford & Berry, P.C., on 

brief), for appellant. 

 Daniel J. Munroe, Assistant Attorney General 

(James S. Gilmore, III, Attorney General, on 

brief), for appellee. 

 Following a bench trial, appellant, Carzell Benton, was 

convicted of possessing a fire bomb in violation of Code 

§ 18.2-85. He contends the evidence is insufficient to support 

his conviction. We disagree and affirm his conviction. 

 I. 

 The pertinent facts follow. Officer Phillips approached 

appellant and his companion, Eric Kennerly, in a Virginia Beach 

convenience store parking lot. Phillips asked who owned the 

vehicle appellant and Kennerly stood near; Kennerly responded 

that it belonged to his fiancee. Kennerly informed Phillips that 

he was the driver of the vehicle and that the two men were headed 

to New York. Appellant, who sat on the sidewalk at the front of 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
- 2 - 

the vehicle, told Phillips that the two men had been robbed in 

Norfolk earlier that evening, and he inquired of Phillips what 

action to take. During the conversation, Phillips noticed a 

white plastic, cylindrical object, eight or ten inches long, 

resting on the vehicle's passenger side floorboard. Kennerly 

became nervous when Phillips asked about the object. To 

Phillips, the object appeared to be drug paraphernalia. Kennerly 

retrieved the object, and Phillips placed it in his belt. Based 

on information provided by Kennerly, Phillips removed the object 

from his belt, placed it on the ground and contacted the bomb 

squad. Sergeant Batten testified as an explosives expert that 

the object was a military artillery simulator and that the 

labelling and tracking number on the device had been removed. 

The device was later detonated safely. 

 Captain Foster of the Virginia Beach Fire Department 

interviewed appellant with respect to the incident. Appellant 

told Foster he was aware of the presence of the device in the 

vehicle. Appellant stated that Kennerly had found the object on 

the ground at a Norfolk gas station earlier that evening and that 

appellant believed it to be a can of hair spray or a fire 

extinguisher. Appellant told Foster that he did not realize the 

object was an explosive device and that the men had taken it 

because they were curious. Appellant stated that the men had 

been staying with friends in Norfolk for two or three days and 

had gotten lost in Virginia Beach on their way back to New York. 
- 3 - 

 He also told Foster that his wallet had been stolen when the men 

were robbed in Norfolk earlier that evening and that he did not 

report the robbery because he did not know the location of the 

police station. Foster testified that Kennerly's account of the 

evening's events was inconsistent with that of appellant. 

 Appellant testified in his defense. He stated he had come 

to Norfolk to show his line of designer clothes. He stated he 

had been staying with a friend of his in Norfolk, but he could 

not remember the individual's name because he knew "a lot of 

people." Appellant acknowledged that he was aware of the 

presence of the fire bomb in the vehicle but stated he thought it 

was trash that Kennerly had picked up and put in the car. 

Concerning the robbery, he testified that only Kennerly had been 

robbed, that he had been a half-block away at the time. He 

stated he did not take a wallet with him when he left New York. 

Appellant testified he and Kennerly stopped at the convenience 

store to get directions to the Chesapeake Bay Bridge, after 

driving around lost for over an hour. Appellant stated that, 

intending to return to New York, he and Kennerly did not attempt 

to report the robbery; they were concerned with the vehicle's 

malfunctioning and did not want to stop for fear of being robbed 

again. Appellant stated that he intended to report the robbery 

when the two men reached New York. Appellant testified that, 

following the robbery, he and Kennerly had only $10 between them. 

 When confronted with the proposition that $10 would not get the 
- 4 - 

men back to New York, appellant stated that $10 was enough to get 

to his aunt's house in Richmond. Appellant stated he never 

contacted his aunt because he panicked after the robbery. 

 With respect to appellant's testimony, the trial court made 

the following observation: 

 I would venture to say that if [appellant] 

had just testified on the stand and the next 

witness was sitting in the courtroom 

listening to his testimony, the next witness 

still could not give consistent testimony 

with [appellant's] testimony. 

 I've had lots of people give false 

testimony in this courtroom; and, 

[appellant], I've got to tell you that you 

rank right up there with the worst. Your 

testimony is totally incredible -- totally. 

The court convicted appellant of possession of the fire bomb. 

 II. 

 When considering the sufficiency of the evidence on appeal 

in a criminal case, this Court views the evidence in a 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). On 

review, this Court does not substitute its own judgment for that 

of the trier of fact. Cable v. Commonwealth, 243 Va. 236, 239, 

415 S.E.2d 218, 220 (1992). The trial court's judgment will not 

be set aside unless it appears that the judgment is plainly wrong 

or without evidence to support it. Code § 8.01-680; Josephs v. 

Commonwealth, 10 Va. App. 87, 99, 390 S.E.2d 491, 497 (1990) (en 

banc). "It is fundamental that `the credibility of witnesses and 
- 5 - 

the weight accorded their testimony are matters solely for the 

fact finder who has the opportunity of seeing and hearing the 

witnesses.'" Collins v. Commonwealth, 13 Va. App. 177, 179, 409 

S.E.2d 175, 176 (1991) (quoting Schneider v. Commonwealth, 230 

Va. 379, 382, 337 S.E.2d 735, 736-37 (1985)). Where the court 

finds a defendant's testimony to be incredible, it is entitled to 

infer that the defendant lied to conceal his guilt. Speight v. 

Commonwealth, 4 Va. App. 83, 88, 354 S.E.2d 95, 98 (1987) (en 

banc). 

 The Commonwealth's case was built on circumstantial evidence 

of constructive possession. "Circumstantial evidence is 

sufficient to support a conviction as long as it excludes every 

reasonable hypothesis of innocence." Price v. Commonwealth, 18 

Va. App. 760, 767, 446 S.E.2d 642, 646 (1994). 

 "To support a conviction based upon 

constructive possession, `the Commonwealth 

must point to evidence of acts, statements, 

or conduct of the accused or other facts or 

circumstances which tend to show that the 

defendant was aware of both the presence and 

character of the [contraband] and that it was 

subject to his dominion and control.'" 

McGee v. Commonwealth, 4 Va. App. 317, 322, 357 S.E.2d 738, 740 

(1987) (quoting Drew v. Commonwealth, 230 Va. 471, 473, 338 

S.E.2d 844, 845 (1986)). Neither proximity to contraband nor 

presence on the premises where it is found is alone sufficient to 

establish constructive possession. E.g., Brown v. Commonwealth, 

15 Va. App. 1, 9, 421 S.E.2d 877, 882-83 (1992). However, both 

proximity and presence are factors the trial court may consider 
- 6 - 

in evaluating the totality of circumstances. Lane v. 

Commonwealth, 223 Va. 713, 716, 292 S.E.2d 358, 360 (1982); 

Brown, 15 Va. App. at 10, 421 S.E.2d at 883; Castaneda v. 

Commonwealth, 7 Va. App. 574, 584, 376 S.E.2d 82, 87 (1989). An 

accused's knowledge of the presence of contraband "may be proved 

by evidence of acts, declarations or conduct of the accused from 

which the inference may be fairly drawn that [the accused] knew 

of the existence of [contraband] at the place where [it was] 

found.'" Hairston v. Commonwealth, 5 Va. App. 183, 186, 360 

S.E.2d 893, 895 (1987) (quoting People v. Pigrenet, 26 Ill. 2d 

224, 227, 186 N.E.2d 306, 308 (1962)). 

 We find sufficient evidence to support the trial court's 

finding beyond a reasonable doubt that appellant possessed the 

fire bomb. Appellant was a passenger in Kennerly's vehicle, and 

the fire bomb was found on the vehicle's passenger side 

floorboard. Appellant was aware of the object's presence in the 

vehicle. Although appellant denied knowledge that the object was 

a fire bomb, the trial court found his testimony to be totally 

incredible. That finding is supported by the record. Appellant 

gave conflicting accounts concerning his belief about the nature 

of the object, the alleged robbery, his presence in the Tidewater 

area and the "friend" with whom he had been staying but whose 

name he could not recall. Appellant also offered an 

incomprehensible explanation of his and Kennerly's plan to travel 

to New York when they were arrested. The trial court was 
- 7 - 

entitled to infer from appellant's "totally incredible" testimony 

that appellant had lied about his knowledge of the nature of the 

fire bomb, as well as the events surrounding his arrest, to 

conceal his guilt. 

 The decision of the trial court is accordingly affirmed. 

Affirmed.