                  COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Fitzpatrick, Judges Coleman and Frank
Argued at Salem, Virginia


WAYNE SYLVESTER GUNN
                                              MEMORANDUM OPINION * BY
v.   Record No. 1788-99-3                      JUDGE ROBERT P. FRANK
                                                   JUNE 13, 2000
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE
                      James F. Ingram, Judge

          Elwood Earl Sanders, Jr., Appellate Defender
          (Public Defender Commission, on briefs), for
          appellant.

          Thomas M. McKenna, Assistant Attorney General
          (Mark L. Earley, Attorney General, on brief),
          for appellee.


     Wayne Sylvester Gunn (appellant) appeals his conviction for

possession of cocaine in violation of Code § 18.2-250.       On appeal,

he contends the evidence was insufficient.      We disagree and affirm

the conviction.

                            I.   BACKGROUND

     Appellant was arrested by Officer Hancock of the Danville

Police Department for being drunk in public.      The officer asked

appellant if he had "any weapons or needles or anything on him."

Appellant immediately put his left hand into his pocket.       The

officer grabbed appellant's hand and asked appellant what he was

     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
doing.    Appellant answered, "I'm just getting some money,

man . . . I'm just getting some money."        The officer then pulled

appellant's hand out of the pocket and saw money in appellant's

hand.    Appellant put his hand back in his pocket, and the officer

removed it when he placed appellant against the police car.       As

the officer pulled appellant's hand out of his pocket on the

second occasion, he observed something fall from the pocket onto

the ground.    He could not tell what it was, and he did not

retrieve it at that time.    After securing appellant in the police

unit, the officer retrieved the item that had been dropped.       The

officer found a suspected smoking device and a cigarette lighter

exactly where appellant's left leg had been when he dropped the

object.    There was nothing else in the area.     The pipe was

analyzed and found to contain cocaine.

                             II.    ANALYSIS

        Under familiar principles of appellate review, we examine the

evidence in the light most favorable to the Commonwealth, granting

to it all reasonable inferences fairly deducible therefrom.       See

Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418

(1987).    The judgment of a trial court will be disturbed only if

plainly wrong or without evidence to support it.       See id.

(citations omitted).    The inferences to be drawn from proven facts

are matters for determination by the fact finder.       See Hancock v.

Commonwealth, 12 Va. App. 774, 782, 407 S.E.2d 301, 306 (1991)



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(citing Johnson v. Commonwealth, 209 Va. 291, 295, 163 S.E.2d 570,

574 (1968)).

     "To establish possession of a controlled substance, [it]

generally is necessary to show that the defendant was aware of the

presence and character of the particular substance and was

intentionally and consciously in possession of it."   Gillis v.

Commonwealth, 215 Va. 298, 301, 208 S.E.2d 768, 771 (1974).

Constructive possession may be proved through evidence

demonstrating "the accused was aware of both the presence and

character of the substance and that it was subject to his or her

dominion and control."   Wymer v. Commonwealth, 12 Va. App. 294,

300, 403 S.E.2d 702, 706 (1991) (citing Drew v. Commonwealth, 230

Va. 471, 473, 338 S.E.2d 844, 845 (1986)).

     Circumstantial evidence is sufficient to prove guilt beyond a

reasonable doubt so long as "all necessary circumstances proved

[are] consistent with guilt and inconsistent with innocence

and . . . exclude every reasonable hypothesis of innocence."

Bishop v. Commonwealth, 227 Va. 164, 169, 313 S.E.2d 390, 393

(1984).   The Commonwealth "need not affirmatively disprove all

theories which might negate the conclusion that the defendant

[possessed the cocaine], but the conviction will be sustained if

the evidence excludes every reasonable hypothesis of innocence."

Higginbotham v. Commonwealth, 216 Va. 349, 353, 218 S.E.2d 534,

537 (1975) (citing Payne v. Commonwealth, 216 Va. 265, 217 S.E.2d



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870 (1975); Orange v. Commonwealth, 191 Va. 423, 434, 61 S.E.2d

267, 271 (1950)).

     Proof of constructive possession necessarily rests on

circumstantial evidence; thus, "'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) (citations omitted).

     The Commonwealth "'is not required to prove that there is no

possibility that someone else may have planted, discarded,

abandoned, or placed the drugs or paraphernalia where they were

found near an accused.'"   Pemberton v. Commonwealth, 17 Va. App.

651, 655, 440 S.E.2d 420, 422 (1994) (quoting Brown v.

Commonwealth, 15 Va. App. 1, 10, 421 S.E.2d 877, 883 (1992) (en

banc)).

     Appellant contends the area was a "high drug area" and the

smoking device could have been discarded by another person.

Appellant, therefore, reasons that because there is a reasonable

hypothesis consistent with innocence, the evidence was

insufficient to support his conviction.

     The trial court could infer from the evidence that appellant

intended to discard the pipe to avoid detection.   Yet, under

appellant's argument that the pipe was already at his feet, the

trial court would have to infer that appellant discarded the



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lighter, an innocuous object.    This is not a reasonable hypothesis

and was rejected by the trial court.

     As the Supreme Court of Virginia has stated:

          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.

Gordon v. Commonwealth, 212 Va. 298, 300, 183 S.E.2d 735, 737

(1971) (citations omitted).

     In Collins v. Commonwealth, 13 Va. App. 177, 178, 409 S.E.2d

175, 175 (1991), the police observed the defendant make a throwing

motion as he left his vehicle.    No one saw whether he had actually

thrown anything.   See id. at 179, 409 S.E.2d at 176.   Underneath

the car in which the defendant had been sitting, the officers

found a bag of cocaine.   See id. at 178, 409 S.E.2d at 175.

Despite varied proffered theories of innocence, including one like

appellant's argument, this Court upheld the conviction, stating

that the trial court's finding of possession was:

          binding on us, unless it is incredible or
          plainly wrong . . . . The trial court was
          not unmindful of Collins' argument that the
          cocaine might have already been under his
          car. The judge discounted this possibility,
          observing 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.




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     Likewise, in Powell v. Commonwealth, 27 Va. App. 173, 497

S.E.2d 899 (1998), this Court again upheld a conviction where the

evidence showed that the defendant unclenched his fist when

approached by the police in a high drug-crime area.    No one saw

the defendant actually drop something, but the police recovered a

bag of cocaine from the ground below where he made the dropping

motion.    See id. at 176, 497 S.E.2d at 900.

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

(1991), we held that the bag of cocaine found in a

heavily-traveled roadway was correctly held to be in the

defendant's possession.   Earlier, the defendant tried to flee from

approaching officers and dropped an unidentified object in the

roadway.    See id. at 165, 403 S.E.2d at 177-78.   "We hold that the

evidence was sufficient to permit an inference that the drugs

found on the roadway were discarded by appellant as he sped from

his arrest, and was sufficient to exclude any reasonable

hypothesis of innocence which flowed from the evidence."    Id. at

165, 403 S.E.2d at 178 (citations omitted).

     Viewing the evidence in the light most favorable to the

Commonwealth, we hold that the evidence was sufficient to find

appellant in constructive possession of the cocaine.    An object

fell from appellant's pocket as his hand was withdrawn from the

pocket.    Appellant disobeyed the officer's direction to remove his

hands from his pockets.   The pipe was found exactly where the

object had fallen, where appellant's foot had been.

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Therefore, we affirm the judgment of the trial court.

                                                    Affirmed.




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