Moses Henry Carney, Jr. v. Commonwealth ( 1997 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Bray and Overton
Argued at Norfolk, Virginia
MOSES HENRY CARNEY, JR.
MEMORANDUM OPINION * BY
v. Record No. 2602-96-1 JUDGE RICHARD S. BRAY
SEPTEMBER 23, 1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
Christopher W. Hutton, Judge
Charles E. Haden (Pamela J. Jones, on brief),
for appellant.
Monica S. McElyea, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on brief),
for appellee.
Moses Henry Carney, Jr. (defendant), convicted in a bench
trial for possession of cocaine, challenges the sufficiency of
the evidence on appeal. We affirm the conviction.
The parties are fully conversant with the record, and this
memorandum opinion recites only those facts necessary to a
disposition of the appeal.
In reviewing the sufficiency of the evidence, we examine the
record 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). The judgment of a trial court, sitting without a jury,
is entitled to the same weight as a jury verdict and will be
disturbed only if plainly wrong or without evidence to support
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
it. See id. The credibility of a witness, the weight accorded
the testimony, and the inferences to be drawn from proven facts
are matters to be determined by the fact finder. See Long v.
Commonwealth, 8 Va. App. 194, 199, 379 S.E.2d 473, 476 (1989).
It is well settled that
possession of a controlled substance may be
actual or constructive. "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 to show that the defendant was
aware of both the presence and character of
the substance and that it was subject to his
dominion and control.'"
McGee v. Commonwealth, 4 Va. App. 317, 322, 357 S.E.2d 738, 740
(1987) (quoting Drew v. Commonwealth, 230 Va. 471, 473, 338
S.E.2d 844, 845 (1986)) (other citations omitted).
Circumstantial evidence may establish possession, provided it
excludes every reasonable hypothesis of innocence. See, e.g.,
Tucker v. Commonwealth, 18 Va. App. 141, 143, 442 S.E.2d 419, 420
(1994). However, "[t]he Commonwealth need only exclude
reasonable hypotheses of innocence that flow from the evidence,
not those that spring from the imagination of the defendant."
Hamilton v. Commonwealth, 16 Va. App. 751, 755, 433 S.E.2d 27, 29
(1993). The reasonableness of an hypothesis of innocence is a
factual finding by the trial court, see Cantrell v. Commonwealth,
7 Va. App. 269, 290, 373 S.E.2d 328, 339 (1988), binding on
appeal unless plainly wrong. See Martin, 4 Va. App. at 443, 358
S.E.2d at 418.
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Here, defendant refused to remove his hands from his pockets
to permit police officers to "secure him in cuffs" incidental to
arrest. Defendant's "passive resistance" persisted until he
suddenly "started pulling his hands out" and "threw items"
against the "back wall," some of which "slid down" behind an
"entertainment center" located a "couple of inches" from the
wall. Moments before the scuffle, Officer Anderson had inspected
the "little space" separating the wall and entertainment center
and observed only "dust and . . . electrical cords." However,
when Anderson "looked again" after defendant tossed the articles
from his pocket, he discovered "change" and a "clear baggie"
containing the offending drug, items not "there . . . before."
No one had been seen in "that area" since Anderson's initial
search, and, in contrast to the surrounding floor, no dust or
dirt was discernible on the baggie.
Such evidence clearly establishes that defendant discarded
several items from his pocket during the encounter with the
officers. See Glover v. Commonwealth, 3 Va. App. 152, 160-61,
348 S.E.2d 434, 440 (1986) (upholding conviction for possession
of cocaine discovered in rear seat of police vehicle previously
searched by officer and later occupied only by accused), aff'd,
236 Va. 1, 372 S.E.2d 134 (1988). These items, including the
baggie of cocaine, were quickly retrieved by police under
circumstances which clearly proved possession by defendant. See
Beverly v. Commonwealth, 12 Va. App. 160, 165, 403 S.E.2d 175,
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177-78 (1991) (conviction for cocaine possession affirmed where
accused, fleeing by automobile on a well traveled road, dropped
object from window, and police immediately retrieved an undamaged
package of cocaine). Accordingly, the evidence provided ample
support for the conviction, and we affirm the decision of the
trial court.
Affirmed.
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