                                COURT OF APPEALS OF VIRGINIA


Present: Judges Frank, Clements and Felton
Argued at Chesapeake, Virginia


TYRONE PHILMORE HARSLEY
                                                              MEMORANDUM OPINION* BY
v.     Record No. 0783-05-1                                    JUDGE ROBERT P. FRANK
                                                                   MARCH 7, 2006
COMMONWEALTH OF VIRGINIA


                FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
                               Dean W. Sword, Jr., Judge

                 Von L. Piersall, III, for appellant.

                 Denise C. Anderson, Assistant Attorney General (Judith Williams
                 Jagdmann, Attorney General, on brief), for appellee.


       Tyrone P. Harsley, appellant, was convicted, in a bench trial, of possession of cocaine with

the intent to distribute, in violation of Code § 18.2-248. On appeal, he contends the evidence was

insufficient to convict him of the drugs found in the glove compartment. For the reasons stated, we

affirm his conviction.

                                            BACKGROUND

       Portsmouth police officers stopped a vehicle driven by appellant and asked him for

identification. The only other passenger in the vehicle was a young child “under ten.” Appellant

produced a picture identification belonging to his brother, Fenton Harsley.

       After further questioning by the officer, appellant stated that he was in fact Tyrone Harsley.

There was an outstanding warrant for appellant, and he was taken into custody. A search incident to




       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
arrest revealed a small baggie of crack cocaine in appellant’s front watch pocket, weighing 2.252

grams.

         In the glove box of the vehicle, the officers recovered 26.395 grams of crack cocaine having

a street value of $2,850. The police also recovered a cell phone from appellant’s person, $500 cash,

consisting of ten (10) fifty dollar bills, from appellant’s right front shirt pocket, and $73 from his

pants pocket. No apparatus to ingest cocaine was discovered.

         Detective Holley of the Portsmouth Police Department, who qualified as an expert in the

sale, packaging, and distribution of narcotics in the City of Portsmouth, testified that the evidence

was inconsistent with personal use of the cocaine.

         Lawrence Clark, an employee of Harsley and Harsley Enterprises, owned by appellant and

his brother, testified on behalf of appellant that the vehicle in which the drugs were found was a

company vehicle. On the day of the offense, a co-employee by the name of Tony drove that vehicle

to pick up other employees for work. He saw Tony place a plastic bag in the glove compartment

“with some white stuff in it.” He also saw the owner of a store give appellant money to purchase

building materials.

                                              ANALYSIS

         While appellant does not contest his possession of the crack cocaine found on his person, he

contends the evidence was not sufficient to convict him of possession of the crack found in the

glove compartment.1

         Possession of a controlled substance may be actual or constructive. Archer v.

Commonwealth, 225 Va. 416, 418, 303 S.E.2d 863, 863 (1983).

                To support a conviction based upon constructive possession, “the
                Commonwealth must point to evidence of acts, statements, or
                conduct of the accused or other facts or circumstances which tend

         1
          Appellant does not challenge that if he possessed those drugs, it was with the intent to
distribute.
                                                -2-
                to show that the [appellant] was aware of both the presence and
                character of the substance and that it was subject to his dominion
                and control.”

Drew v. Commonwealth, 230 Va. 471, 473, 338 S.E.2d 844, 845 (1986) (quoting Powers v.

Commonwealth, 227 Va. 474, 476, 316 S.E.2d 739, 740 (1984)). Thus, in resolving this issue, we

must consider “the totality of the circumstances disclosed by the evidence.” Womack v.

Commonwealth, 220 Va. 5, 8, 255 S.E.2d 351, 353 (1979).

        Appellant correctly states that mere proximity to the drugs is not, in itself, sufficient to

convict. However, such a circumstance is probative in determining whether an accused possessed

the drugs. Lane v. Commonwealth, 223 Va. 713, 716, 292 S.E.2d 358, 360 (1982). Also,

“occupancy of the vehicle in which the drugs are found is likewise a circumstance probative of

possession.” Glasco v. Commonwealth, 26 Va. App. 763, 774, 497 S.E.2d 150, 155 (1998), aff’d,

257 Va. 433, 513 S.E.2d 137 (1999).

        Significantly, appellant possessed a small amount of crack cocaine on his person. From this,

the fact finder could properly infer that appellant was aware of the presence and character of the

drugs found in the glove compartment. See Wymer v. Commonwealth, 12 Va. App. 294, 301, 403

S.E.2d 702, 707 (1991) (“The bent straw with cocaine residue found in her purse along with the

paraphernalia used to consume marijuana are sufficiently related to the items found in or on

appellant’s dresser and are additional facts which permitted the fact finder to infer that appellant

knew of the presence of cocaine.”).

        We cannot ignore that the cocaine found in the glove compartment was valued at $2,850. In

Collins v. Commonwealth, 13 Va. App. 177, 180, 409 S.E.2d 175, 176 (1991) (quoting the trial

court), we acknowledged that such amounts are “‘something of significant value and not something

that one is likely to have abandoned or carelessly left in the area there.’” It is unlikely that someone

other than appellant left $2,850 worth of cocaine in the vehicle.


                                                  -3-
       While appellant’s witness testified he saw another person put a plastic bag “with some white

stuff in it” in the glove compartment, the fact finder clearly rejected that testimony. “Witness

credibility, the weight accorded the testimony and the inferences to be drawn from proven facts are

matters to be determined by the fact finder.” Foster v. Commonwealth, 38 Va. App. 549, 554, 567

S.E.2d 547, 549 (2002).

       Appellant contends that other employees of the company had access to the vehicle and could

have placed the drugs in the glove compartment.

               Circumstantial evidence may establish the elements of a crime,
               provided it excludes every reasonable hypothesis of innocence.
               Tucker v. Commonwealth, 18 Va. App. 141, 143, 442 S.E.2d 419,
               420 (1994). “The statement that circumstantial evidence must
               exclude every reasonable theory of innocence is simply another
               way of stating that the Commonwealth has the burden of proof
               beyond a reasonable doubt.” Commonwealth v. Hudson, 265 Va.
               505, 513, 578 S.E.2d 781, 785 (2003). This Court must determine
               not whether there is some evidence to support [appellant’s]
               hypothesis of innocence but, rather, whether a reasonable fact
               finder, upon consideration of all the evidence, could have rejected
               appellant’s theories and found him guilty beyond a reasonable
               doubt. See Correll v. Commonwealth, 42 Va. App. 311, 327, 591
               S.E.2d 712, 721 (2004). Whether a hypothesis of innocence is
               reasonable is a question of fact. Id.

Corbin v. Commonwealth, 44 Va. App. 196, 202-03, 604 S.E.2d 111, 114 (2004). We find that

the fact finder properly rejected appellant’s hypothesis of innocence.

       Appellant cites Hancock v. Commonwealth, 21 Va. App. 466, 465 S.E.2d 138 (1995), to

support his position. His reliance is misplaced because the facts in Hancock are significantly

different. In Hancock, this Court reversed the conviction, finding that the trial judge

misunderstood the requisite mental state when he ruled that the defendant did not actually know,

but “should have known,” that a weapon was under his feet. Id. at 469, 465 S.E.2d at 140. This

Court further concluded that, other than proximity, nothing linked the appellant to the gun. Id. at




                                                 -4-
472, 465 S.E.2d at 141. The facts in the instant case, as discussed above, prove much more than

close proximity.

       Finding the evidence sufficient to convict appellant of possession with intent to distribute

crack cocaine, we affirm his conviction.

                                                                                         Affirmed.




                                               -5-
