Dickerson v. Commonwealth
Dickerson v. Commonwealth
Opinion of the Court
Appellant, Robert Dickerson, was convicted in a bench trial of cocaine possession in violation of Code § 18.2-250. On appeal, Dickerson argues the evidence was insufficient to convict him of this crime. Because Dickerson did not properly preserve this argument, we affirm his conviction.
The officer testified to these facts at a bench trial. At the close of the Commonwealth’s evidence, Dickerson made a motion to strike the evidence “based on the insufficiency of the evidence,” but argued only that the police unlawfully searched him.
Rule 5A:18 states
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 evidence in a bench trial, a closing argument could not. Id. at 413-14, 368 S.E.2d at 293-94. However, this Court subsequently reversed that holding in Campbell, 12 Va.App. 476, 405 S.E.2d 1, holding that 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).
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 appeal. 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 the trial court to both the relief being sought and, as importantly, the basis for that relief.
Here, Dickerson made no motion to strike at the close of all the evidence in his bench trial. Accordingly, he must rely upon his closing argument to preserve his challenge to the sufficiency of the evidence. In his brief closing argument, Dickerson’s counsel did nothing more than ask the trial court, sitting as the fact-finder, to disbelieve the police officer’s
Thus, we affirm Dickerson’s conviction.
Affirmed.
. 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).
. " ‘[W]hen a defendant elects to present evidence on his behalf, he waives the right to stand on his motion to strike the evidence made at the conclusion of the 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)).
. Effective July 1, 2010, Rule 5A:18 was revised to state that "[n]o ruling of the trial court ... will be considered as a basis for reversal unless an objection was stated with reasonable certainty at the time of
. For instance, on appeal Dickerson argues that "[t]he Commonwealth failed to exclude the reasonable hypothesis that appellant truly had no
. 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 only the sufficiency of the evidence to support first-degree murder failed to preserve a sufficiency challenge to the lesser-included charge of involuntary manslaughter).
. If arguments of this sort were adequate, the rule would be rendered meaningless, since every closing argument in a criminal case (short of a concession of guilt) would permit a defendant to raise a sufficiency challenge on appeal.
Concurring Opinion
concurring in the judgment.
The majority properly affirms Dickerson’s conviction 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 whether Dickerson knew of the presence and character of the cocaine found in his pants pockets was properly preserved. Therefore, I write separately to concur in the judgment only.
The majority holds that counsel’s “one-sentence 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.” The majority believes this falls short of a challenge to the sufficiency of the evidence, which asks the trial 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 different evidentiary prism” than the sufficiency challenge Dickerson argues on appeal, supra at 857-59, 709 S.E.2d at 720, Rule 5A:18 bars our consideration of the merits of Dickerson’s appeal.
In my view, however, distinguishing a “closing argument [that] 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 differ
On the merits of Dickerson’s appeal, I believe the evidence is sufficient to support a finding that Dickerson had the requisite awareness of the nature and character of the cocaine because the police officers found the contraband in his pants pocket.
“In a prosecution for possession of a controlled substance, the Commonwealth must produce evidence sufficient to support a conclusion 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,
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 311. Specifically, the arresting officer found a prescription bottle labeled “OxyContin,” a controlled substance. The officer could not determine the nature of the pills without the use of forensic testing, which revealed the pills contained neither OxyContin nor its generic equivalent. Id. at 589, 659 S.E.2d at 309. Further, the pills were prescribed to an individual 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 contraband without fully knowing the character and nature of the pills and 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 reasonable 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 was identifiably implicated in the ownership of Dickerson’s vehicle, contraband, or pants. Dickerson never contended that the pants belonged to someone else. See Horne v. Commonwealth, No. 1247-09-2, 2010 WL 2160225, at *3, 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 that the pants were not his and conclude that the velour pants, and any item in the pockets of those pants, belonged to appellant.”). Dickerson offered no explanation concerning how a substance could enter his pants without his knowledge. Indeed, Dicker
Dickerson’s actual possession of the cocaine in his pants pockets, combined with facts that contradicted his disclaimer of ownership of the crack cocaine, provide sufficient evidence to prove beyond a reasonable doubt that he knowingly possessed the cocaine. Accordingly, I would affirm his conviction for possession of cocaine on that ground rather than applying Rule 5A:18.
. Of course, I do not suggest that any closing argument may properly preserve a sufficiency challenge for appellate review. 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.
Reference
- Full Case Name
- Robert D. DICKERSON v. COMMONWEALTH of Virginia
- Cited By
- 206 cases
- Status
- Published