COURT OF APPEALS OF VIRGINIA 

Present: Judges Elder, Humphreys and Senior 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 Attorney General II (Robert F. 

McDonnell, Attorney General, on brief), for appellee. 

 On appeal from his conviction for possession of cocaine, in violation of Code 

§ 18.2-250(A), Bernard Edward Castilloux, Jr. contends the evidence was insufficient 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 Castilloux’s 

left front pants pocket. In a statement to Officer J.C. Hundley, Castilloux said that the crack 

cocaine was not his, that the pants he was wearing belonged to his 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 opinion is not designated for publication. 
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 During closing argument, defense counsel reviewed the evidence but made no argument 

as to its sufficiency. The Commonwealth’s attorney then stated 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 the 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 haven’t proven intent, it’s 

hard for me to convict somebody.” The Commonwealth’s attorney then replied that the trial 

judge could “certainly consider the credibility of all witnesses.” 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 truth 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 looking at me right now just like he 

knows that what I’m saying is the truth. 

Reiterating that he did not believe anything Castilloux’s brother said and that Castilloux’s 

brother’s statement “does not create any reasonable doubt in my mind,” the trial judge found 

Castilloux guilty of cocaine possession. During this exchange between the trial judge and the 

Commonwealth’s attorney, defense counsel said nothing. 

 At the sentencing hearing more than two months later, defense counsel moved for 

reconsideration of the evidence “where the Commonwealth agreed with me that the 

Commonwealth had not proven their case.” The 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 deem to be appropriate under the 

circumstances based upon the evidence. 

The trial judge refused to revise his finding and found Castilloux guilty of possession of cocaine. 
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Analysis

 When the sufficiency of the evidence is challenged on appeal, “we review the evidence in 

the light most favorable to the Commonwealth, granting 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 legal 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, Castilloux did not deny knowledge of the cocaine’s 

presence in his pocket. He merely claimed the cocaine was not his and that his brother had put it 

there so he would be arrested. The trial judge disbelieved this self-serving statement. The trial 

judge saw and heard Castilloux’s brother testify and emphatically stated that he did not believe 

Castilloux’s brother’s testimony. 

The trial judge rejected the Commonwealth’s attorney’s assessment of the evidence. This 

fell within the trial judge’s function as fact finder. The Commonwealth’s attorney’s opinion of 

the sufficiency of the evidence was not binding on the trial court. See Glasco v. Commonwealth, 
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257 Va. 433, 447 n.7, 513 S.E.2d 137, 145 n.7 (1999) (Lacy, J. concurring) (concessions in 

respect to legal conclusions are not binding on the parties or the court). 

Thus, the credible evidence supports the trial court’s finding that Castilloux knowingly 

possessed the cocaine he physically possessed in his pants pocket. 

 Castilloux argues that the trial judge improperly participated in the prosecution of the 

case and that the trial judge should have accepted the Commonwealth’s attorney’s concession 

and dismissed the case. He did not raise these claims 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 consideration of this question on appeal. 

Although Rule 5A:18 allows exceptions for good cause or 

to meet the ends of justice, appellant 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 occurred, 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.