Ronald Mavin, Jr., s/k/a Ronald Linwood Mavin v CW

COURT OF APPEALS OF VIRGINIA
Present: 	Chief Judge Fitzpatrick, Judges Willis and Annunziata
Argued at Chesapeake, Virginia
RONALD MAVIN, JR., S/K/A
RONALD LINWOOD MAVIN, JR.
OPINION BY
v. 	Record No. 2592-98-1 	JUDGE JERE M. H. WILLIS, JR.
DECEMBER 14, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ISLE OF WIGHT COUNTY
Rodham T. Delk, Jr., Judge
Michael J. Lutke, Assistant Public Defender
(Office of the Public Defender, on brief),
for appellant.
Shelly R. James, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
On appeal from his conviction of possession of cocaine, in
violation of Code § 18.2-250, Ronald Mavin, Jr., contends (1)
that the trial court erred in holding that the police officer
lawfully seized a prescription bottle, and (2) that the evidence
was insufficient to support his conviction. 	Finding no error,
we affirm the judgment of the trial court.
I. 	Background
On appeal, we review the evidence in
the light most favorable to the
Commonwealth, granting to it all reasonable
inferences fairly deducible therefrom. 	The
judgment of a trial court sitting without a
jury is entitled to the same weight as a
jury verdict and will not be set aside

unless it is plainly wrong or without
evidence to support it.
Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418
(1987).
On the afternoon of October 25, 1996, Smithfield Police
Officer Kirk Beach stopped a vehicle being driven by Wilbur
Elias, whose license Beach knew was suspended. 	Elias exited the
vehicle and met Beach at the rear bumper of the vehicle. 	Beach
patted Elias down and placed him in the front seat of the patrol
car. 	Beach testified that Elias was "very nervous and evasive,"
and "[Beach] felt like something was not right based on the way
that [Elias] got out and how nervous he was in [the patrol]
car."
Beach left Elias in the patrol car and approached the
stopped vehicle. 	He saw Mavin slumped down in the rear seat.
Beach had not seen Mavin during his first contact with Elias at
the rear of the vehicle. 	Moving closer, Beach saw Mavin holding
in his left hand a prescription bottle with no label. 	Mavin
dropped the bottle to the floor and pushed it with his foot
underneath the seat.
Beach removed Mavin from the vehicle. 	He testified that he
recognized the prescription bottle as a type frequently used to
carry crack cocaine. 	Once Mavin was out of the vehicle, Beach
picked up the bottle, which had rolled from under the seat onto
the floorboard. 	He opened the bottle and observed a white,
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powdery residue, which subsequent analysis determined to be
crack cocaine.
Mavin moved to suppress the prescription bottle as the
product of an illegal search and seizure. 	The trial court
denied the motion. 	In a bench trial, it convicted Mavin of
possession of cocaine, in violation of Code § 18.2-250, and
sentenced him to serve twelve months in jail with an additional
two years imprisonment suspended.
II. 	Motion to Suppress
Mavin contends that the trial court erred in refusing to
suppress the prescription bottle as the product of an illegal
search and seizure. 	Relying on Harris v. Commonwealth, 241 Va.
146, 400 S.E.2d 191 (1991), he contends that Beach was not
authorized to seize and examine the prescription bottle, which
was of a type commonly and lawfully possessed. 	He argues that
Beach's observation of the bottle did not give Beach probable
cause to believe it contained contraband.
Mavin's reliance on Harris is misplaced. 	In Harris, police
officers frisked Harris for weapons and found a film canister.
When questioned about its contents, Harris replied that it
contained film. 	Noting that film canisters are routinely
possessed lawfully and that the officers had no factual basis to
disbelieve Harris or to believe that the canister was being used
unlawfully, the Supreme Court held that it was illegally seized.
See Harris, 241 Va. at 150, 400 S.E.2d at 193-94.
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In denying Mavin's motion to suppress, the trial court
found as follows:
The pill bottle was apparent to him looking
through the window, which he had the right
to do. 	And given the circumstances, even
though the pill bottle could have been used
for other legitimate uses, given his
suspicions, which were engendered by the
conduct not only of Mr. Elias but also Mr.
Mavin, and the fact that it was in plain
view, I find that he was entitled to seize
the pill bottle as a matter that was in
plain view. 	I'll overrule your motion to
suppress.
The evidence supports those findings and that ruling.
Beach was justifiably suspicious due to Mavin's and Elias'
conduct. 	Mavin attempted to hide from view. 	He also attempted
to hide the prescription bottle. 	He denied knowledge of the
bottle, which Beach had just seen in his hand. 	Such furtive
conduct gave Beach probable cause to believe that a crime was
being committed. 	The prescription bottle rolled out from under
the seat and, at the time of seizure, was in plain view on the
floorboard of the vehicle. 	It bore no label, suggesting no
current medical use. 	See Hilliard v. Commonwealth, 17 Va. App.
23, 26, 434 S.E.2d 911, 913 (1993). 	These circumstances gave
Officer Beach probable cause to believe that the prescription
bottle contained illegal drugs; thus, Beach was justified in
making a warrantless entry of the vehicle to seize the
prescription bottle and in examining its contents.
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III. 	Sufficiency of the Evidence
Mavin next contends that the evidence was insufficient to
prove that he was aware of the nature and character of the
contents of the bottle.
"In order to convict a person of illegal possession of an
illicit drug, the Commonwealth must prove beyond a reasonable
doubt that the accused was aware of the presence and character
of the drug and that the accused consciously possessed it."
Walton v. Commonwealth, 255 Va. 422, 426, 497 S.E.2d 869, 871
(1998). 	Officer Beach testified that he saw Mavin holding the
bottle in his left hand. 	"'Physical possession giving the
defendant "immediate and exclusive control" is sufficient. . . .
The duration of the possession is immaterial and need not always
be shown to have been actual possession.'" 	Josephs v.
Commonwealth, 10 Va. App. 87, 99, 390 S.E.2d 491, 497 (1990)
(citation omitted).
"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). 	The trial court believed Beach's testimony and did
not believe Mavin. 	Mavin's nervousness and his attempt to hide
the pill bottle support the trial court's finding that he knew
the pill bottle contained illicit drugs.
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The seizure of the pill bottle was lawful, and the evidence
sufficiently supports the conviction. 	Accordingly, we affirm
the judgment of the trial court.
Affirmed.
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