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CARNEY v. COMMONWEALTH OF VIRGINIA


CARNEY v. COMMONWEALTH
OF VIRGINIA

(unpublished)


SEPTEMBER 23, 1997
Record No. 2602-96-1

MOSES HENRY CARNEY, JR.

v.

COMMONWEALTH OF VIRGINIA

MEMORANDUM OPINION[1]
BY JUDGE RICHARD S. BRAY
FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON

Christopher W. Hutton, Judge
Present: Judges Baker, Bray and Overton
Argued at Norfolk, Virginia

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 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.

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, 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.

 

 

FOOTNOTES:

[1] Pursuant to Code ? 17-116.010 this opinion is
not designated for publication.

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