                     COURT OF APPEALS OF VIRGINIA


Present:    Chief Judge Fitzpatrick, Judges Elder and Lemons


MATTHEW McHERRIN
                                              MEMORANDUM OPINION * BY
v.   Record No. 0217-99-1                     JUDGE DONALD W. LEMONS
                                                   MARCH 14, 2000
COMMONWEALTH OF VIRGINIA


           FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
                        Edward L. Hubbard, Judge

             (Theophlise L. Twitty; Jones and Twitty, on
             brief), for appellant. Appellant submitting
             on brief.

             (Mark L. Earley, Attorney General; John H.
             McLees, Jr., Assistant Attorney General, on
             brief), for appellee. Appellee submitting on
             brief.


     Matthew McHerrin was convicted in a bench trial for

unlawfully possessing cocaine in violation of Code § 18.2-250.

On appeal, McHerrin contends that the evidence was insufficient

to prove that he possessed the cocaine found by police on the

ground.

                            I.   BACKGROUND

     When an appellant challenges the sufficiency of the

evidence to support his conviction, the evidence and all

reasonable inferences fairly deducible therefrom will be

considered in the light most favorable to the Commonwealth.        See

     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534,

537 (1975).   On August 28, 1997, Newport News police detectives

drove unmarked police cars and a raid van to 717 27th Street to

execute a search warrant for that residence and for the person

of Matthew McHerrin.   The police arrived at 8:30 p.m. and saw

McHerrin leaving the residence and walking toward 26th Street

through a vacant, grassy field about "80 feet deep" and to the

west of the residence.    Although the porch of the residence was

occupied by numerous males, there was no one in or coming across

the field at that time.   Detective Schraudt, who wore blue

jeans, boots and a black raid vest with a gold State Police

badge and the word "Police" in white on the front of the vest,

and the words "State Police" on the back, got out of an unmarked

police car and faced McHerrin.    McHerrin then turned and ran

through the vacant lot.

     Schraudt identified himself as a police officer and shouted

several times for McHerrin to stop.      When McHerrin kept running,

Schraudt and Detectives Coleman and Bell chased him.     During the

chase, the detectives saw McHerrin reach into his right pocket,

pull his hand out and then make a throwing motion.     When he got

to the back edge of the lot, he took a path through a brushline

that separated it from another vacant lot behind it.     As he did

so, when the detectives were about 20-25 feet away from him,

both Schraudt and Coleman saw McHerrin reach his hand into his

left pocket, bring it out and extend it, and then make a motion

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in that direction.   It was "between [the] time of dark and

light," and at that distance the officers were unable to see an

object leaving his hand.

     Schraudt apprehended McHerrin, who had stopped running when

he reached the next street.    Coleman had stopped in the field,

and when Schraudt and other officers brought McHerrin back to

that location, they searched with flashlights to find what he

had thrown away.   No one had been through the area since the

police had chased McHerrin.

     In the area where McHerrin had made the throwing motion,

the police found a "see-through" plastic sandwich bag containing

six individually packaged, one inch by two inch baggies of what

appeared to be heroin.     Also in the area, the police found items

of trash, such as beer bottles, gum wrappers, and paper.       It had

been raining until about an hour before the raid, and Schraudt

noticed that the ground and all the items of trash found in the

area were wet, but the bag of drugs was not.     The substance in

the baggies proved to be .76 gram of cocaine, rather than

heroin.

                             II.    ANALYSIS

     When a conviction is based entirely on circumstantial

evidence, all necessary circumstances proved must be consistent

with guilt and inconsistent with innocence and must exclude

every reasonable hypothesis of innocence.      See Bishop v.

Commonwealth, 227 Va. 164, 169, 313 S.E.2d 390, 393 (1984).

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"The circumstances of motive, time, place, means, and conduct

must all concur to form an unbroken chain which link the

defendant to the crime beyond a reasonable doubt."    Id.

     In Collins v. Commonwealth, 13 Va. App. 177, 409 S.E.2d 175

(1991), a police officer drove his patrol car into a dimly lit

parking lot and stopped approximately thirty feet behind

Collins, who was sitting in a parked vehicle.   When Collins

exited the car, the officer saw him make "a throwing motion

under the vehicle with his right arm."    Id. at 178, 409 S.E.2d

at 175.   The officer immediately approached the car, shined his

flashlight underneath the car and found a plastic baggie

containing 14 smaller baggies of a white substance.   There was

nothing else under the car.    We held that the evidence was

sufficient to prove that the defendant possessed the cocaine and

had thrown it under the car.   We relied primarily on the

reasonableness of the fact finder's inferences stemming from the

evidence presented and observed,

                [t]he court could have found that [the
           defendant] was merely off balance as he
           exited the car, or that he slipped and was
           attempting to catch himself. But the court
           did not so find. Instead, the court found
           that [the defendant] in fact threw drugs
           under the vehicle and that finding is
           binding on us, unless it is incredible or
           plainly wrong. It is neither under the
           facts in this record.

                The trial court was not unmindful of
           [the defendant's] argument that the cocaine
           might have already been under his car. The
           judge discounted this possibility, observing

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           that the cocaine was "something of
           significant value and not something that one
           is likely to have abandoned or carelessly
           left in the area there."

Id. at 179-80, 409 S.E.2d at 176.

     Viewing the evidence in the light most favorable to the

Commonwealth, there was sufficient evidence from which the trial

judge could find that appellant had actual possession of the

cocaine and knew of the nature and character of the substance.

Appellant fled after being alerted to clearly visible signs of

police officers.   Detective Schraudt wore his police badge and

vest and after McHerrin turned and ran, he ignored Schraudt's

several calls to stop.   While not sufficient alone to convict,

such actions indicate guilty knowledge.   See Johnson v.

Commonwealth, 12 Va. App. 150, 153, 402 S.E.2d 502, 504 (1991).

Appellant then, on two occasions, reached into his pocket,

pulled his hand out and made throwing motions during the

pursuit.   He did not stop running until he had distanced himself

from those areas where he made the throwing motions.   At one of

the locations where police officers saw the appellant's throwing

motion, the drugs were found amidst the trash and other debris.

"Possession of a drug prohibited by law may be shown by

'evidence of acts, declarations or conduct of the accused from

which the inference may be fairly drawn that he knew of the

existence of the narcotics at the place where they were found.'"

Beverly v. Commonwealth, 12 Va. App. 160, 164, 403 S.E.2d 175,


                               - 5 -
177 (1991) (quoting Womack v. Commonwealth, 220 Va. 5, 7, 255

S.E.2d 351, 352 (1979)).   No other persons were observed in the

field; it was a relatively private area rather than a public

thoroughfare; and very little time elapsed between when the

defendant was seen making a throwing motion and when the cocaine

was retrieved.    See Johnson, 12 Va. App. at 153, 402 S.E.2d at

504 (stating that "the drugs were found in a relatively private

area" in affirming a conviction for possession of cocaine with

intent to distribute).

       The package containing the cocaine was distinguished from

the trash because, although lying in an open field, it was not

wet.   The trial judge could have reasonably inferred that the

plastic bag had been dropped there since the rain had stopped.

Additionally, because it is common knowledge that cocaine has

value on the illicit market, it was highly unlikely that someone

would have abandoned the drugs there like trash.    See Brown v.

Commonwealth, 15 Va. App. 1, 9, 421 S.E.2d 877, 883 (1992) (en

banc); Collins, 13 Va. App. at 180, 409 S.E.2d at 176.

       Finding the evidence sufficient, we affirm the conviction.

                                                          Affirmed.




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