COURT OF APPEALS OF VIRGINIA

Present: Judges Elder, Hu mphreys and Seni or Judge Willis Argued at Chesapeake, Virginia

BERNARD EDWARD CASTILLOUX, JR. MEMORANDUM OPINION * BY v. Record No. 2392-06-1 JUDGE JERE M. H. WILLIS, JR. OCTOBER 2, 2007 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH Thomas S. Shadrick, Judge John D. Hooker, Jr . (John D. Hooker, Jr. & Associates, P.C., on brief), for appellant. Karen Misbach, Assistant At torney General II (Robert F. McDonnell, Attorney General, on brief), for appellee.

On appeal from his conviction for posse ssion of cocaine, in violation of Code § 18.2-250(A), Be rnard Edward Castilloux, Jr. contends the evidence was in sufficient to prove that he intentionally possessed the cocaine. We affirm the judgment of the trial court. Background In a search incident to arrest, Officer Anthony Palmer found crack cocaine in Cas tilloux’s left front pants pocket. In a stat ement to Officer J.C. Hundley, Cas tilloux said that the crack cocaine was not his, that the pa nts he was wearing belonged to hi s brother, and that his brother had “planted” the cocaine in his pocket so he would be arrested. Castilloux’s brother testified that after arguing with Castilloux, he had put the cocaine in Castilloux’s pants pocket and “called the cops.”

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.- 2 - During closing argument, defense counsel reviewed the evidence but made no argument as to its sufficiency. The Comm onwealth’s attorney then stat ed that he did not think the Commonwealth had proved that Castilloux knowingly or intentionally possessed the cocaine found in his pocket. The trial judge rejected th e Commonwealth’s attorney’s assessment of the evidence and said, “I hate to put you on the spot, but I don’t believe a word that defense witness said. But when the prosecution gets up and says I have to concede we have n’t proven intent, it’s hard for me to convict somebody.” The Commonw ealth’s attorney then replied that the trial judge could “certainly consider the credibility of all witnesse s.” The trial judge stated, [I]f the evidence from the brother was credible, then that would be a defense. But I deem myself to be a pretty good judge of when someone’s telling the trut h or not, and I’ve been doing this job for a long time; and I don’t believe a word that man said. And he’s lying through his teeth, and for what reason, I don’t know. But – and he’s sitting there looki ng at me right now just like he knows that what I’m saying is the truth. Reiterating that he did not believe anything Cas tilloux’s brother said and that Castilloux’s

brother’s statement “does not cr eate any reasonable doubt in my mind,” the trial judge found Castilloux gu ilty of cocaine possession. During this ex change between the trial judge and the Commonwealth’s attorney, defens e counsel said nothing. At the sentencing hearing more than two months later, defense counsel moved for

reconsideration of the evidence “where th e Commonwealth agreed with me that the Commonwealth had not proven their case.” Th e trial judge recalled the case and said, I had an opportunity to observe the – the brother’s testimony, and it was obvious to me that he was lying . . . . I just simply found his testimony to be unbelievable . . . . I’m the trier of fact, and I have to do what I de em to be appropriate under the circumstances based upon the evidence. The trial judge refused to re vise his finding and found Cas tilloux gu ilty of possession of cocaine.- 3 - Analysis When the sufficiency of the evidence is ch allenged on appeal, “we re view the evidence in the light most favorable to the Commonwealth, gr anting to it all reasonable inferences fairly

deducible therefrom.” Martin v. Commonwealth , 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987). The convictions will not be reversed unless “plainly wrong or without evidence to support [them].” Collins v. Commonwealth , 13 Va. App. 177, 179, 409 S.E.2d 175, 176 (1975). “The credibility of the witnesses and the weight accorded the evidence are matters solely for the fact finder who has the opportunity to see and hear that evidence as it is presented.” Sandoval v.

Commonwealth , 20 Va. App. 133, 138, 455 S.E.2d 730, 732 (1995).

Castilloux had immediate and exclusive control of the cocaine he physically possessed in his pants pocket. Thus, he was in le gal possession of that cocaine. See Gillis v. Commonwealth , 215 Va. 298, 301-02, 208 S.E.2d 768, 771 (1974) ( physical possession giving defendant

immediate and exclusive control is sufficient to establish possession of a controlled substance). The trial judge, sitting as fact finder, reasonably inferred that Castilloux knew the cocaine was in his pants pocket. In his statement to Officer Hundley, Cas tilloux did not deny knowledge of the cocaine’s presence in his pocket. He mere ly claimed the cocaine was not hi s and that his brother had put it

there so he would be arrested. The trial judge disbelieved this se lf-serving statement. The trial judge saw and heard Cas tilloux’s brother testify and emphatically stated that he did not believe Castilloux’s brother’s testimony. The trial judge rejected the Commonwealth’s a ttorney’s assessment of the evidence. This fell within the trial judge’s function as fact fi nder. The Commonwealth’s attorney’s opinion of the sufficiency of the evidence was not binding on the trial court. See Glasco v. Commonwealth ,- 4 - 257 Va. 433, 447 n.7, 513 S.E.2d 137, 145 n.7 (1999) (Lacy, J. concurring) (concessions in respect to legal conclusi ons are not binding on the pa rties or the court). Thus, the credible evidence supports the trial court’s finding that Cas tilloux knowingly possessed the cocaine he physically possessed in his pants pocket. Castilloux argues that the trial judge imprope rly participated in the prosecution of the case and that the trial judge should have accep ted the Commonwealth’s attorney’s concession

and dismissed the case. He did not raise these cl aims at trial. “The Court of Appeals will not consider an argument on appeal which was not presented to the trial court.” Ohree v.

Commonwealth , 26 Va. App. 299, 308, 494 S.E.2d 484, 488 (1998). See Rule 5A:18. A trial court must be alerted to the precise issue to which a party objects. See Neal v. Commonwealth , 15 Va. App. 416, 422-23, 425 S.E.2d 521, 525 (1992). Accordingly, Rule 5A:18 bars our cons ideration of this question on appeal. Although Rule 5A:18 allows exceptions for good cause or to meet the ends of justice, appe llant does not argue that we should invoke these exceptions. See e.g. , Redman v. Commonwealth , 25 Va. App. 215, 221, 487 S.E.2d 269, 272 (1997) (“In order to avail oneself of the exception, a defendant must affirmatively show that a miscarriage of justice has occurr ed, not that a miscarriage might have occurred.” (emphasis added)). We will not consider, sua sponte , a “miscarriage of justice” argument under Rule 5A:18.

Edwards v. Commonwealth , 41 Va. App. 752, 761, 589 S.E.2d 444, 448 (2003) ( en banc ). We affirm the judgment of the trial court.

Affirmed.