                     COURT OF APPEALS OF VIRGINIA


Present:    Judges Benton, Coleman and Overton


MELVIN K. ACORS

v.        Record No. 0538-95-2           MEMORANDUM OPINION * BY
                                        JUDGE SAM W. COLEMAN III
COMMONWEALTH OF VIRGINIA                     APRIL 16, 1996


         FROM THE CIRCUIT COURT OF THE CITY OF FREDERICKSBURG
                   William H. Ledbetter, Jr., Judge

            (Michael J. George, on brief), for appellant.
             Appellant submitting on brief.

            (James S. Gilmore, III, Attorney General;
            Eugene Murphy, Assistant Attorney General, on
            brief), for appellee. Appellee submitting on
            brief.



     Melvin K. Acors appeals his conviction for possession of

cocaine on the ground that the evidence is insufficient to

sustain the conviction.    We hold that the evidence is sufficient

to prove that the defendant possessed the cocaine found by the

police and affirm his conviction.

     The dispositive issue in this case is whether the

circumstantial evidence proves beyond a reasonable doubt that the

item which the defendant was seen to have thrown away when

confronted by police officers was cocaine found in the vicinity

where the item was thrown.




     *
       Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
                             I.    FACTS

     Officer Doug Perkins of the Fredericksburg Police

Department, along with several other officers, went to a home in

Fredericksburg to execute a search warrant.      When Perkins

approached the house from the rear along a dark alleyway, he

heard voices coming from the street.       He saw the defendant and

another man coming down the alleyway "from the front of the

house."   Perkins called out "Police . . . [g]et on the [g]round,"

and turned his flashlight on the men when they were approximately

ten to fifteen feet away.   At that point, the defendant reached

into his pocket, removed "a dull white object" that was "[a]bout

the size of a small ball," and threw it into an adjoining yard

over a chain link fence and shrubs.       Perkins testified that

although he did not "see [the object] land because the shrubs

were in the way, he "could estimate where [the object] landed."

He testified that the defendant "made a second throwing motion in

the same manner, but [that he] couldn't see anything leave his

hand" that time.
     After securing the two men, Perkins assisted the other

officers in "raid[ing] the house," which took about "three to

five minutes."   After executing the search warrant, Perkins told

Detective Brent Taylor that he had "observed the [defendant]

throw something over the fence."     Perkins and Taylor went to the

"adjoining yard" and Perkins "showed Detective Taylor where [he]

felt this item that was thrown across the fence should be."        They



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"[w]alked right to . . . a baggie containing suspected crack

cocaine."   According to Perkins, the "yard was fairly well

groomed and mowed," and they did not see or find any other white

objects on the ground.   Perkins testified that he had never

before been in the yard.   After finding the baggie, Perkins

returned to the alleyway and identified the defendant as the

person he had seen who threw the object over the fence.

       On cross-examination, Perkins testified that the area was

known for drug activity.   He also testified that the defendant

was not named or mentioned in the search warrant, that he had

primarily focused his attention on the defendant, and that he did

not shine his flashlight on the second individual.

                            II.   ANALYSIS

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

(1991), the 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.      Id. at 178, 409 S.E.2d at

175.   When Collins exited the vehicle, the officer saw him make

"a throwing motion under the vehicle with his right arm."     The

officer immediately "approached [the vehicle] and illuminated the

area underneath the vehicle with his flashlight."     A second

officer "retrieved from underneath the vehicle a plastic baggie

containing fourteen smaller baggies of a white substance."       Id.

On these facts, we held that the evidence was sufficient to prove

that the cocaine recovered from underneath the vehicle had been



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cocaine that the defendant possessed and threw under the vehicle.

See also Beverly v. Commonwealth, 12 Va. App. 160, 165, 403

S.E.2d 175, 177-78 (1991) (holding that the evidence was

sufficient to sustain a conviction for possession of cocaine

where "the police found a package containing almost two grams of

cocaine at the place where appellant had dropped an object" just

a short time earlier).

        Here, Officer Perkins had his flashlight trained on the

defendant from a distance of approximately ten to fifteen feet.

He saw the defendant throw a dull white object into an adjoining

yard and over a chain link fence and shrubs.    Unlike the officer

in Collins, Officer Perkins saw the object leave the defendant's
hand.    He was unequivocal in his testimony that the defendant

made a throwing motion.     See Collins, 13 Va. App. at 180, 409

S.E.2d at 176 (Benton, J., dissenting).    A few minutes after

Perkins saw the defendant throw the object, Perkins and Detective

Taylor found a plastic baggie containing a white substance or

"chunk" in the area of the adjoining yard where Perkins estimated

that the object the defendant threw had landed.    The substance

was determined to be crack cocaine.

        The evidence here, viewed in the light most favorable to the

Commonwealth and granting to it "all reasonable inferences [that

may be] drawn therefrom," creates more than "a mere suspicion"

that the crack cocaine found in the adjoining yard by Officers

Perkins and Taylor was the same item that the defendant was seen



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to have possessed and thrown into the adjoining yard.     Garland v.

Commonwealth, 225 Va. 182, 184, 300 S.E.2d 783, 784-85 (1983);

see also Gordon v. Commonwealth, 212 Va. 298, 300, 183 S.E.2d

735, 737 (1971) ("Numerous decisions have affirmed convictions

for possession of narcotic drugs resting on proof that a

defendant was observed dropping or throwing away an identifiable

object which, when subsequently recovered, was found to contain

narcotics.").   The object found in the adjoining yard had the

same physical appearance as the item the defendant was seen to

have thrown, the officers observed no other objects in the

vicinity, no other persons were observed in the area, it was a

relatively private area rather than a public thoroughfare, and

very little time lapsed between when the defendant was seen

throwing an object and when the cocaine was retrieved.     See

Johnson v. Commonwealth, 12 Va. App. 150, 153, 402 S.E.2d 502,

504 (1991) (stating that "the drugs were found in a relatively

private area" in affirming a conviction for possession of cocaine

with intent to distribute).   These facts identify unerringly that

the item that the defendant threw across the fence when

confronted by the police officers was the crack cocaine that was

later retrieved.   Accordingly, the evidence is sufficient to

support the defendant's conviction.

                                                           Affirmed.




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BENTON, J., dissenting.



     "[W]here, as here, a conviction is based on circumstantial

evidence, 'all necessary circumstances proved must be consistent

with guilt and inconsistent with innocence and exclude every

reasonable hypothesis of innocence.'"     Garland v. Commonwealth,

225 Va. 182, 184, 300 S.E.2d 783, 784 (1983) (quoting Inge v.

Commonwealth, 217 Va. 360, 366, 228 S.E.2d 563, 567 (1976)).

Because the evidence in this case fails to satisfy this standard,

I would reverse the conviction.
     The evidence proved that a police "SWAT" team was

approaching a house in a "high drug area" at 11:30 p.m. to

conduct a search for drugs.   Because many people were standing

near the front of the house, one group of officers approached the

house from the rear through a dark alley.    Officer Perkins saw

Melvin Acors walking fast in the alley in a direction away from

the street where the house was located.    Another man was walking

a few feet behind Acors.   Officer Perkins testified that after he

verbally confronted the two men, he noticed Acors throw a small

object over a hedge in the backyard of the house adjacent to the

house that was to be searched.    He also observed Acors make a

second throwing motion.    The other man turned as if to retreat.

Officer Perkins could not see whether the man who turned to

retreat threw anything.    He ordered both men to the ground.

     Officer Perkins said the item Acors threw cleared a large

hedge; however, he could not see where the object landed.    After


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Acors and the other man were prone on the ground, Officer Perkins

left them in the custody of another officer.   Officer Perkins

continued to the house, entered it, and assisted other officers

in securing the house for the search.

     While Officer Perkins was in the house, Officer Taylor

learned from an unidentified officer that "someone threw

something" into the backyard of the adjacent house.    Officer

Taylor went into the backyard and looked beneath and around the

bushes across from Acors but did not find any object.    Officer

Taylor then went into the house that was being searched and saw

Officer Perkins.   Officer Perkins, who had been in the house five

minutes, accompanied Officer Taylor through the front gate of the

yard where Officer Taylor had searched.   Officer Perkins

"estimated approximately where [the men stopped in the alleyway]

and walked right to the object."   Because of the height of the

hedges and the darkness, Officer Perkins could not see Acors and

the other man who were still prone on the ground.    Officer

Perkins testified that the object he found in the backyard, a

small packet of cocaine, was "six to ten feet from the chain link

fence and the shrubs."
     This evidence creates a mere suspicion that the object

Officer Perkins found in the backyard of the house was thrown by

Acors.   "Suspicion, however, no matter how strong, is

insufficient to sustain a criminal conviction."     Stover v.
Commonwealth, 222 Va. 618, 624, 283 S.E.2d 194, 197 (1981).      The




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evidence fails to exclude the reasonable hypothesis that the

object, located in a yard across the alley from a house that was

raided for drugs, was not placed there by some other person for

quick retrieval.   Indeed, the evidence proved that this was a

"high drug area" and that many people were loitering on the

street in front of the house that was raided.   Furthermore, the

evidence does not exclude the possibility that when the man

walking behind Acors turned to retreat, he tossed the object that

Officer Perkins recovered.
     The evidence did not prove that Acors threw an "identifiable

object" and that the same object was recovered.   See Gordon v.

Commonwealth, 212 Va. 298, 300, 183 S.E.2d 735, 737 (1971).

Merely identifying the recovered object as "the 'same color, size

and shape'" as the object Officer Perkins believed Acors

possessed raises only a suspicion or probability of guilt.     Id.

at 298, 183 S.E.2d at 736.   "There must be an unbroken chain of

circumstances 'proving the guilt of [Acors] to the "exclusion of

any other rational hypothesis and to a moral certainty."'"     Id.

at 300, 183 S.E.2d at 737 (quoting Brown v. Commonwealth, 211 Va.

252, 255, 176 S.E.2d 813, 815 (1970)).   Officer Perkins' belief

that he recovered the same object thrown by Acors was

speculation.   He did not see the object after it passed beyond

the hedges and fell in the dark.   Thus, I would hold that the

evidence was insufficient to prove beyond a reasonable doubt that

Acors possessed the cocaine that was found in the yard.




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