Oscar Foster v Commonwealth

1 printed pages contain little extracted OCR body text; searchable legal-body completeness has not been established for those pages.

OCR transcription for search; preserved printed pages are authoritative

COURT OF APPEALS OF VIRGINIA

Present: Judges Bray, Annunziata and Senior Judge Hodges
Argued at Norfolk, Virginia

OSCAR FOSTER

Vv. Record No. 2571-94-1 MEMORANDUM OPINION
BY JUDGE WILLIAM H. HODGES
COMMONWEALTH OF VIRGINIA NOVEMBER 28, 1995

FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
Edward W. Hanson, Jr., Judge

Larry W. Shelton (Goldblatt, Lipkin & Cohen, P.C.
on brief), for appellant.

Eugene Murphy, Assistant Attorney General (James S.

Gilmore, III, Attorney General, on brief), for
appellee.

Oscar Foster was convicted of possession of heroin in
violation of Code § 18.2-250, and possession of cocaine with
intent to distribute in violation of Code § 18.2-248. On appeal,
he contends that the evidence was insufficient to prove beyond a
reasonable doubt that he committed these offenses. We disagree
and affirm.

IT.

On the evening of October 27, 1993, Officer Spiess stopped a

vehicle driven by appellant. Appellant consented to a search of

his person. Spiess testified appellant "was wearing very loose

clothing in numerous layers. It was hard to get a real good
search... ." Detective Tosloskie, who assisted Spiess, stated
appellant wore "two or three layers of clothes ...a full

Pursuant to Code § 17-116.010 this opinion is not
designated for publication.

2
winter jacket, sweat suit top, a shirt, and I think two pairs of
pants . . . ."
Spiess found no drugs during the search, but recovered
"several bundles of twenty dollar bills that [were] about the
size of a cigarette package." 	The money was bundled in packets
of $100 each and totalled about $4,000. 	Tosloskie also recovered
$969 from two or three wallets carried by appellant. 	Spiess
found several "brand new," unused crack pipes in the car, and,
under the driver's seat of the car, Spiess found a metal pipe
filled with rubber.
A narcotics search dog searched appellant's vehicle, but not
appellant's person. 	The dog did not alert to narcotics in the
car. 	Appellant was then arrested for possession of a concealed
weapon (the metal pipe).
Spiess transported appellant to the jail in the back seat of
Spiess' police vehicle at about 10:30 p.m. 	Appellant's hands
were handcuffed behind his back while he was in the car.
However, Spiess testified he saw appellant move around "quite a
bit" while he rode in Spiess' car. 	After leaving appellant at
the jail, Spiess searched his vehicle and recovered a cigarette
package from the floorboard of the back seat area of the car.
This package held smaller packages which contained a total of
about five grams of cocaine, and a small amount of heroin.
Tosloskie estimated the value of the recovered drugs was about
$1,100 to $1,200. 	The smaller "envelopes" containing the drugs

3
had numbers written on them which Tosloskie stated represented
the weights of the packages. 	Tosloskie also testified that the
packaging of the drugs was consistent with drug distribution.
The cigarette package carried a fingerprint which did not match
appellant's fingerprints.
Spiess testified that it is common practice for him to
search his car at the beginning of each shift. 	He looks
underneath the seats and removes trash from the car. 	He takes
the back seat completely out of the car and looks under
insulation that could be loose. 	Spiess conducted such a search
of his car at 3:00 p.m. on the day he transported appellant.
Spiess also searched the car immediately before he transported
appellant. 	Spiess found nothing in the car during these
searches.
Spiess transported no one in his car on October 27, 1993,
prior to transporting appellant. 	Spiess testified his car
remains locked when he is not in it, and he is the only person
with keys to the car.
II.
[I]n a criminal prosecution, based entirely
on circumstantial evidence, "a suspicion of
guilt, however strong, or even a probability
of guilt, is insufficient to support a
criminal conviction." 	Nevertheless,
circumstantial evidence may be more
compelling and persuasive than direct
evidence, and when convincing, it is entitled
to as much weight as direct evidence.
Whether the Commonwealth relies upon either
direct or circumstantial evidence, it is not
required to disprove every remote possibility
of innocence, but is, instead, required only

4
to establish guilt of the accused to the
exclusion of a reasonable doubt.
Bridgeman v. Commonwealth, 3 Va. App. 523, 526-27, 351 S.E.2d
598, 600 (1986) (citations omitted).
Appellant argues that the circumstantial evidence did not
prove beyond a reasonable doubt that the cigarette package was
possessed by appellant. 	Appellant contends that the following
evidence supports a reasonable hypothesis of innocence: 	(1) the
fingerprint on the cigarette package did not match appellant's
fingerprints; (2) the narcotics dog was taken through appellant's
car, against which appellant was standing, and did not alert to
narcotics; (3) appellant's hands were handcuffed behind
appellant's back while he was in Spiess' car; (4) appellant was
searched prior to riding in Spiess' car and no drugs were found
on appellant's person; and (5) the $4,000 in cash was provided to
appellant by his son and his estranged wife for the purchase of a
car.
"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). 	Spiess' car was
thoroughly searched twice on October 27, 1993, at the beginning
of Spiess' shift, and immediately prior to placing appellant into
the car. 	No drugs were found in the car during either search.
No one, other than appellant, was transported in the car on the
day appellant was arrested. 	In addition, the evidence showed

5
that the narcotics dog searched only appellant's vehicle and did
not search appellant's person. 	Moreover, appellant wore
"numerous layers" of clothing, making a thorough and complete
search of appellant difficult, if not impossible. 	It is not
unreasonable to infer that the search under these conditions
would not have disclosed the cigarette package. 	See Glover v.
Commonwealth, 3 Va. App. 152, 160, 348 S.E.2d 434, 440 (1986),
aff'd, 236 Va. 1, 372 S.E.2d 134 (1988).
Furthermore, Spiess testified that appellant moved around
"quite a bit" while he rode in Spiess' car. 	Thus, there was
sufficient evidence from which the jury could find appellant
disposed of the cigarette package in Spiess' vehicle despite the
fact that he was handcuffed while in the police car. 	See id. at
160-61, 348 S.E.2d at 440.
The presence of another person's fingerprint on the
cigarette package was evidence for the jury to consider.
However, the weight to be given this evidence was for the jury to
decide. 	See Keyes v. City of Virginia Beach, 16 Va. App. 198,
199, 428 S.E.2d 766, 767 (1993). 	Even with the fingerprint
evidence, abundant circumstantial evidence existed from which the
jury validly could have inferred that appellant possessed the
cigarette package containing the drugs.
III.
"In proving intent, various types of circumstantial evidence
may be appropriate -- evidence concerning the quantity of drugs

6
and cash possessed, the method of packaging, and whether
appellant himself used drugs." 	Poindexter v. Commonwealth, 16
Va. App. 730, 734-35, 432 S.E.2d 527, 530 (1993). 	Viewed in the
light most favorable to the Commonwealth, the evidence showed
that appellant was carrying individual packets of cocaine
totalling almost five grams. 	Tosloskie testified that the method
of packaging of the cocaine was inconsistent with personal use
and that the drugs were valued at about $1,100 to $1,200.
Tosloskie further stated that had appellant purchased the drugs
packaged in this fashion, he would have paid "quite a bit more"
than if he purchased a large "chunk." 	Furthermore, no evidence
introduced at trial indicated that appellant was a cocaine user,
and several unused crack pipes were recovered from appellant's
car.
Appellant also possessed $4,000 in cash formed into bundles,
and over $900 in cash kept in two or three wallets. 	Although
appellant's son and his estranged wife testified that appellant
had the $4,000 in order to purchase a car, the "[t]he weight
which should be given to evidence and whether the testimony of a
witness is credible are questions which the fact finder must
decide." 	Bridgeman, 3 Va. App. at 528, 351 S.E.2d at 601. 	The
jury did not believe the testimony of appellant's son and his
estranged wife concerning the presence of the cash.
Based on this evidence, we cannot conclude that the jury
erred in finding that appellant intended to distribute the

cocaine.
For the foregoing reasons, the judgment of the trial court
is affirmed.

Affirmed.