                    COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Bray and Senior Judge Hodges
Argued at Norfolk, Virginia


WILLIAM HENRY DAVIS
                                           MEMORANDUM OPINION * BY
v.   Record No. 2994-96-1                 JUDGE WILLIAM H. HODGES
                                             NOVEMBER 25, 1997
COMMONWEALTH OF VIRGINIA


         FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
                       Randolph T. West, Judge

           Timothy G. Clancy (Cumming, Hatchett &
           Jordan, on brief), for appellant.
           Kimberley A. Whittle, Assistant Attorney
           General (Richard Cullen, Attorney General, on
           brief), for appellee.



     In a bench trial, appellant, William Henry Davis, was

convicted of possessing cocaine with the intent to distribute.

The trial court sentenced him to twelve years of imprisonment

with seven years suspended.   On appeal, Davis challenges the

sufficiency of the evidence to prove that he possessed cocaine.

Finding no error, we affirm appellant's conviction.

                                 I.

     "On appeal, we review the evidence in the light most

favorable to the Commonwealth, granting to it all reasonable

inferences fairly deducible therefrom."    Martin v. Commonwealth,

4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987).    "It is

fundamental that 'the credibility of witnesses and the weight

accorded their testimony are matters solely for the fact finder
     *
      Pursuant to Code § 17-116.010, this opinion is not
designated for publication.
who has the opportunity of seeing and hearing the witnesses.'"

Collins v. Commonwealth, 13 Va. App. 177, 179, 409 S.E.2d 175,

176 (1991) (quoting Schneider v. Commonwealth, 230 Va. 379, 382,

337 S.E.2d 735, 736-37 (1985)).

     While on patrol in Newport News on the night of March 29,

1996, Officers Frank Nowak and J. D. Bell observed Davis on the

street.    In the same area were several "shot houses," where

individual drinks of alcohol were sold.    Nowak observed

appellant, who was alone, turn away as the police cruiser drove

past him.   Nowak saw a light-colored object fall from appellant's

hands and land near the front right side of a pickup truck.     At

the time, Nowak was approximately nineteen feet from appellant.
     The officers stopped their vehicle in the middle of the

street and approached appellant on foot.   Appellant unzipped his

pants and appeared to urinate.    Nowak proceeded to the area in

front of the pickup truck where he had seen the object land.

About six inches under the right side of the truck was a

light-colored object in a clear plastic container similar in size

and appearance to the item he had seen appellant drop.      Nothing

else was beneath the truck.   Only a minute or two had lapsed

since appellant had dropped the item, and there was no one else

in the area.   Although it had been raining and the pavement

beneath the container was wet, the top of the container itself

was dry.

     The plastic container recovered by Nowak held eight to nine



                                  2
pieces of crack cocaine totalling more than four grams in weight.

On the streets of Newport News, one gram of cocaine was worth

$80 to $100.   Appellant also possessed a pager, a cellular phone,

and $478 in cash.

     Testifying in his own behalf, appellant stated that he was

in the area to gamble at a particular house.   He said he had

stopped to urinate when the police officers approached him.     He

testified that the cocaine found beneath the truck was not his,

and he denied any knowledge of its presence.
                                II.

     Appellant argues that the evidence did not prove beyond a

reasonable doubt that he possessed the cocaine Nowak recovered

from beneath the truck.
          Possession may be actual or constructive.
          Constructive possession may be established by
          "evidence of acts, statements, or conduct of
          the accused or other facts or circumstances
          which tend to show that the defendant was
          aware of both the presence and the character
          of the substance and that it was subject to
          his dominion and control."


Logan v. Commonwealth, 19 Va. App. 437, 444, 452 S.E.2d 364,

368-69 (1994) (en banc) (citations omitted).   "While proximity to

a controlled substance is insufficient alone to establish

possession, it is a factor to consider when determining whether

the accused constructively possessed drugs."   Brown v.

Commonwealth, 15 Va. App. 1, 9, 421 S.E.2d 877, 882 (1992) (en
banc).

     In Collins, the police officer drove his patrol car into a



                                 3
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 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).

        Similarly, the evidence in this instance, viewed in the

light most favorable to the Commonwealth and granting to it "all

reasonable inferences [that may be] drawn therefrom," creates

much more than "a mere suspicion" that the cocaine found beneath

the truck was the same item that appellant was seen to have

possessed and dropped there.      See 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)




                                    4
(noting that "[n]umerous 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").

     As the police vehicle passed, appellant turned his body away

and dropped a light-colored object.   Nowak was approximately

nineteen feet distant when he observed the object fall from

appellant's hand, near a pickup truck.   Moments later, Nowak

found a plastic container with a light-colored substance inside

at the spot where defendant had discarded the item.   No other

persons were in the area and no other objects were under the

truck.   Although it was raining and the ground beneath the

container was wet, the container itself was dry.   Defendant

denied knowledge of the container or dropping any object.     The

substance in the container was determined to be crack cocaine.

     "The Commonwealth [was] not required to prove that there

[was] no possibility that someone else may have planted,

discarded, abandoned or placed the drugs" on the ground.      Brown,

15 Va. App. at 10, 421 S.E.2d at 883.    The evidence unerringly

identified the item that appellant dropped as the crack cocaine

later retrieved.   Accordingly, the evidence was sufficient to

establish beyond a reasonable doubt that appellant possessed

cocaine.

     For these reasons, we affirm appellant's conviction.




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    Affirmed.




6
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)).

"Suspicious circumstances, including proximity to a controlled

drug, are insufficient to support a conviction."    Behrens v.

Commonwealth, 3 Va. App. 131, 135, 348 S.E.2d 430, 432 (1986).

     On the evidence in this record, the Commonwealth failed to

prove beyond a reasonable doubt that William Henry Davis

possessed the cocaine.    The evidence proved that Officer Nowak

saw Davis while Officers Nowak and Bell were patrolling at

11:00 p.m. in an area where people go to purchase alcohol and

drugs.   Davis, who was nineteen feet away, turned and began to

urinate.   Officer Nowak testified that when Davis turned,

"something f[e]ll out of his hand."   Officer Nowak also testified

that he did not know what the object was and did not tell Officer

Bell that he saw an object fall from Davis' hand.    Although

Officer Nowak described the item as light colored, he did not

describe its size or shape.

     The two officers approached Davis.    Officer Nowak told Davis

to put his hands on the car.   After Davis did so, Officer Nowak

walked to the front of a pickup truck.    Officer Nowak testified



                                  7
that he found a plastic container "underneath the . . . truck and

about six inches under the right front side of the . . . truck."

Nowak testified that the object was the same size and color as

the item he saw fall from Davis' hand.

        This proof is not entirely consistent with guilt nor is it

inconsistent with Davis' claim of innocence.      The evidence fails

to exclude the reasonable hypothesis that the object, located

under a truck in an area known for drug distribution, was placed

there by some other person at an earlier time.      Indeed, the

evidence proved that the police officers were patrolling the area

because drugs and alcohol were distributed and prevalent in the

area.    Numerous cases report that drug dealers often hide drugs

under vehicles, in fields, and around houses in places where

drugs are sold.     See, e.g., Warlick v. Commonwealth, 215 Va. 263,

267, 208 S.E.2d 746, 749 (1974).       McGann v. Commonwealth, 15 Va.

App. 448, 450-51, 424 S.E.2d 706, 708 (1992).

        Proof that the container was relatively dry when the street

was wet from rain does not prove that Davis possessed the

container.    Obviously, the truck would shelter from the rain

items underneath the truck.    Furthermore, Officer Nowak did not

testify that Davis tossed the item.      The evidence proved,

however, that the container that Officer Nowak found was six

inches under the truck and "completely dry except for . . . the

portion . . . that was touching the ground."      That testimony is

consistent with the object having been placed there or left for a



                                   8
long period of time.    Thus, the container recovered by Officer

Nowak could have been placed, thrown, or dropped under the truck

by some other person long before the officers approached Davis.

When, as here, "the evidence leaves it indefinite which of

several hypotheses is true, or establishes only some finite

probability in favor of one hypothesis, such evidence cannot

amount to proof, however great the probability may be."       Massie

v. Commonwealth, 140 Va. 557, 565, 125 S.E. 146, 148 (1924).
     Furthermore, the evidence creates a mere suspicion that

Davis dropped an "identifiable object" and that the same object

was recovered by Officer Nowak.       See Gordon v. Commonwealth, 212

Va. 298, 300, 183 S.E.2d 735, 737 (1971).      Merely identifying the

recovered object as "the 'same color [and] size'" as the object

Officer Nowak believed Davis possessed raises only a suspicion or

probability of guilt.    Id. at 298, 183 S.E.2d at 736.

"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).      Officer Nowak's belief

that he recovered the same object dropped by Davis was mere

speculation.   Officer Nowak did not look anywhere other than

under the truck for the object.   He did not testify that he

looked in any other area to determine whether the object dropped

by Davis was something other than the item found under the truck.

     Thus, I would hold that the evidence was insufficient to

prove beyond a reasonable doubt that Davis possessed the cocaine



                                  9
that was found under the pickup truck.   For these reasons, I

dissent and would reverse the conviction.




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