Birdsong v. Com., Record No. 0516-01-2.

• Citation: 37 Va. App. 603, 560 S.E.2d 468
• Case Date: March 12, 2002
• Court: Court of Appeals of Virginia

560 S.E.2d 468
37 Va. App. 603

Charles Anthony BIRDSONG
v.
COMMONWEALTH of Virginia

Record No. 0516-01-2.

Court of Appeals of Virginia, Richmond.

March 12, 2002.

560 S.E.2d 469

David M. Gammino, Richmond, for appellant

Stephen R. McCullough, Assistant Attorney General (Randolph A. Beales, Attorney General, on brief), for appellee.

Present: FITZPATRICK, C.J., and ANNUNZIATA, J., and COLEMAN, Senior Judge.

FITZPATRICK, Chief Judge.

Charles Anthony Birdsong (appellant) was convicted in a bench trial of possession of cocaine with intent to distribute, in violation of Code § 18.2-248, and possession of a firearm while in possession of cocaine, in violation of Code § 18.2-308.4. On appeal, he contends that the evidence was insufficient to prove he constructively possessed the drugs and gun which were found in a locked safe. For the following reasons, we affirm the judgment of the trial court.

I. BACKGROUND

Under familiar principles of appellate review, we examine the evidence in the light most favorable to the Commonwealth, the prevailing party below, granting to it all reasonable inferences fairly deducible therefrom. See Juares v. Commonwealth, 26 Va. App. 154, 156, 493 S.E.2d 677, 678 (1997).

So viewed, the evidence established that on April 6, 2000, at approximately 10:15 p.m., police officer Kevin Harver (Harver) executed a search warrant at 323 Winston Street in Henrico County. Appellant was not present during the search. His mother, who lived at the home, arrived during the execution of the search warrant but remained outside. The townhouse had two stories with two bedrooms upstairs, the front "female" bedroom and the rear "male" bedroom.

The male bedroom contained two beds and a closet. A dresser and a locked safe were located inside the closet. Papers belonging to appellant were found on top of the dresser, in the dresser drawers, and scattered on the floor of the closet by the dresser. All of the papers were addressed to Charles Birdsong, including a copy of a March 1, 2000 misdemeanor warrant, a cognizance bond receipt, a capias, and an Alltel phone bill. Adult male clothes were also

560 S.E.2d 470

found in the room. A handgun, ammunition, a baggie containing 27.5 grams of cocaine, and a sock stuffed with $2,900 out of a total $6,604.19 in cash were found inside the locked safe. The sock tested positive for DNA that matched the DNA profile of appellant. The DNA certificate of analysis indicated that the probability of randomly selecting an unrelated individual with a matching DNA profile was one in 88 million in the black population

At trial, appellant's mother testified that neither the safe nor its contents belonged to her and that she did not know the combination to the safe. She stated that appellant had a key to the townhouse and used the rear bedroom. Her eleven-year-old son, Gregory, slept in the front room with her. Her third son, Rondell, who previously had been arrested for a drug offense, visited occasionally, but kept no property in the townhouse. She acknowledged that she had been working twelve hour days in April and did not know who was at the townhouse while she was at work.

Delores White (White), a neighbor who lived next door to 323 Winston Street, testified that during the spring of 2000 "[appellant] was there just about every day," and because of that, she asked him to "watch out for [her] apartment." During this time, she saw appellant leave the townhouse with "baggies in his hands." White also stated that on April 6, 2000, the day the search warrant was executed, at approximately 3:00 p.m. she saw appellant use a key to let himself and a female friend into the townhouse. White also testified that she knew appellant's brother Gregory, but she did not know Rondell.

II. STANDARD OF REVIEW

In reviewing the sufficiency of the evidence, "the judgment of the trial court sitting without a jury is entitled to the same weight as a jury verdict." Saunders v. Commonwealth, 242 Va. 107, 113, 406 S.E.2d 39, 42, cert. denied, 502 U.S. 944, 112 S.Ct. 386, 116 L.E d.2d 337 (1991).

"[T]he trial court's...