George McLean, Jr. v Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Willis, Bray and Annunziata
Argued at Norfolk, Virginia
GEORGE McLEAN, JR.
MEMORANDUM OPINION* BY
v. 	Record No. 1159-98-1 	JUDGE JERE M. H. WILLIS, JR.
JUNE 22, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
Randolph T. West, Judge
Jeffrey C. Rountree for appellant.
Linwood T. Wells, Jr., Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
*Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
On appeal from his conviction of possessing a firearm while
unlawfully selling alcoholic beverages, in violation of Code
§ 4.1-318, George McLean, Jr., contends that the evidence was
insufficient to support his conviction. 	We disagree and affirm
the judgment of the trial court.
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 appears from the evidence that the
judgment is plainly wrong or without
evidence to support it.

Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418
(1987). 	When the sufficiency of the evidence is challenged on
appeal, "it is our duty to look to that evidence which tends to
support the verdict and to permit the verdict to stand unless
plainly wrong." 	Snyder v. Commonwealth, 202 Va. 1009, 1016, 121
S.E.2d 452, 457 (1961). 	See Johnson v. Commonwealth, 2 Va. App.
598, 604-05, 347 S.E.2d 163, 167 (1986) ("Circumstantial
evidence . . . is sufficient to sustain a conviction.").
On March 27, 1997, Newport News police officers executed a
search warrant on the residence of George McLean, Jr. 	Several
people were inside the house playing cards, and the officers
noted the presence of liquor bottles, beer bottles, and
Styrofoam cups containing liquid in the living room, kitchen,
and bedroom of the house. 	An ABC officer identified McLean as
the man who had sold him alcohol illegally on a previous
occasion. 	The officers found four firearms, crack cocaine, and
large amounts of cash in the bedroom.
In a bench trial, McLean was found guilty of possessing a
firearm while unlawfully selling alcoholic beverages, in
violation of Code § 4.1-318, and was sentenced to five years
imprisonment, all of which was suspended.1
1McLean was also convicted of possession of cocaine with
intent to distribute, in violation of Code § 18.2-248, and
possession of a firearm while in possession of a controlled
substance with intent to distribute, in violation of Code
§ 18.2-308.4. 	The sufficiency of these convictions is not at
issue in this appeal.
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Code § 4.1-318 states, in relevant part, that:
No person shall unlawfully manufacture,
transport or sell any alcoholic beverages,
and at the time of the unlawful
manufacturing, transporting, or selling or
aiding or assisting in any manner in such
act, shall carry on or about his person, or
have on or in any vehicle which he may be
using to aid him in any such purpose, or
have in his possession, actual or
constructive, at or within 100 yards of any
place where any such alcoholic beverages are
being unlawfully manufactured, transported
or sold, any dangerous weapon as described
in Code § 18.2-308.
Code § 4.1-318. 	McLean contends that the evidence is
insufficient to prove that he was selling alcohol
contemporaneously with his possession of a dangerous weapon.
At trial, several Newport News police officers testified
that they observed large amounts of alcohol in the house, that
there were liquor bottles, beer bottles, and white Styrofoam
cups with liquid in them, and that people were drinking when
they entered. 	Detective D.M. Best testified that there were at
least four individuals "seated around a table with bottles of
beer, cans of beer . . . [and] fifth bottles of alcohol." 	Upon
being questioned outside his residence that day, McLean admitted
to selling drinks "[a]ll the time." 	An ABC agent at the house
identified McLean as the man who had illegally sold him alcohol,
and Charles Whiting, a defense witness, testified that McLean
had been selling alcoholic drinks earlier that day. 	This
evidence proved that McLean was selling alcoholic beverages.
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Sufficient evidence supports the finding that McLean
possessed a dangerous weapon while selling the alcohol. 	Four
firearms, dangerous weapons as described in Code § 18.2-308,
were recovered from the bedroom of the house. 	Detective Randy
Ronneberg testified that McLean admitted that the bedroom was
his and that the Excel shotgun, with serial number 18501 and
tape around the stock, was his. 	McLean also told the officer
that two of the firearms were "Mike's" and that he "was holding
[the rifle] for another person."
McLean testified that he had stopped selling alcohol a few
weeks earlier. 	He argues that no credible evidence supports the
finding that he was selling alcohol while in possession of the
firearms. 	The trial court, however, believed the officers and
Whiting, rather than McLean. 	"[T]he credibility of witnesses
and the weight accorded their testimony are matters solely for
the fact finder who has the opportunity of seeing and hearing
the witnesses." 	Schneider v. Commonwealth, 230 Va. 379, 382,
337 S.E.2d 735, 736-37 (1985).
The findings of the trial court were supported by evidence
and were not "plainly wrong." 	See Snyder, 202 Va. at 1016, 121
S.E.2d at 457.
The judgment of the trial court is affirmed.
Affirmed.
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