COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Annunziata and Senior Judge Duff 

Argued at Richmond, Virginia 

ROY CARLTON DAVIS 

 MEMORANDUM OPINION* BY 

v. Record No. 0494-96-3 JUDGE ROSEMARIE ANNUNZIATA 

 APRIL 22, 1997 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG 

Mosby G. Perrow, III, Judge 

 Clinton R. Shaw, Jr., for appellant. 

 Ruth Ann Morken, Assistant Attorney General 

(James S. Gilmore, III, Attorney General, on 

brief), for appellee. 

 Following a bench trial, appellant, Roy Carlton Davis, was 

convicted of possession of cocaine with intent to distribute. 

Appellant contends the evidence was insufficient to support his 

conviction. We disagree and affirm his conviction. 

 I. 

 At approximately 8:00 p.m. on August 21, 1995, Officer Hise 

conducted drug surveillance in an area of Lynchburg known for 

drug trafficking. At 8:35 p.m., Hise noticed appellant approach 

a pedestrian on the sidewalk near 409 Harrison Street. The two 

engaged in a brief conversation before appellant walked to the 

downspout of the house at 409 Harrison, retrieved a small object 

and returned to the pedestrian on the sidewalk with the object 

concealed in the palm of his hand. Hise saw appellant and the 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
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pedestrian exchange objects in a manner which he did not mistake 

for a handshake. The pedestrian left, and appellant returned to 

the downspout where he again picked up an object and then 

returned it to the ground. Appellant then sat on the porch steps 

of 409 Harrison Street. 

 At 8:37 p.m., Hise observed appellant return to the 

downspout and, after looking each direction, pick up an object 

and then place it down. At 8:39 p.m., Hise observed appellant 

whistle at a passing vehicle. At 8:50 p.m., Hise saw appellant 

return to the downspout, retrieve an object from the ground and 

approach another individual across Harrison Street. Hise's view 

was obstructed by a fence, but within a few seconds he saw 

appellant return to the porch steps. At 8:56 p.m., Hise heard 

appellant whistle and yell, "yo," at a passing vehicle which then 

stopped. Hise saw appellant return to the downspout, pick up an 

object, handle it, place an object back down and approach the 

vehicle. Appellant and the vehicle's occupant engaged in a brief 

conversation before the two returned to the porch steps. Hise 

stated that as many as four other people sat on the porch during 

the course of these events. Hise testified, however, that 

appellant was the only person to approach the downspout area of 

the house. Hise testified that appellant's activity was 

consistent with his past experience observing drug transactions 

and that he believed appellant was selling cocaine. 

 Hise conveyed his suspicion and a description of appellant 
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to Officers Poindexter, Duff and King, who arrived within 

minutes. Officer Poindexter noticed appellant on the porch steps 

and observed him make a sweeping motion with his hand between his 

legs as the officers approached. She did not see an object 

discarded. Poindexter could not recall whether appellant sat 

alone as the officers approached; Hise testified that appellant 

sat with one other person when he contacted the officers. 

Poindexter approached the downspout area but found nothing out of 

the ordinary. She then shined her flashlight under the porch and 

found a baggie containing what would prove to be 1.1 grams of 

cocaine resting directly beneath appellant. Appellant stated 

that the cocaine was not his. 

 Officer Duff searched appellant and discovered a pager, $5 

in his pocket, and $92 in his shoe. Testifying as an expert in 

drug transactions, Duff stated that the street value of a gram of 

crack cocaine was between $150 and $175 and that crack was 

typically purchased in ten, twenty or forty dollar units. Duff 

further testified that pagers are often used to facilitate drug 

transactions, and he described that street level crack cocaine 

deals often involve a brief conversation between buyer and seller 

to determine a price, followed by an exchange of drugs for money. 

 He further stated that drug dealers often keep their drugs in a 

"stash," away from the transaction, rather than on their person. 

 Appellant testified in his defense and essentially refuted 

the Commonwealth's case, stating, inter alia, that he used a $100 
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bill to purchase $3 worth of beer and carried the remaining $97 

in change and that he only once walked near the downspout on the 

side of the house to place a beer bottle in a trash can. He 

stated that he did not signal or approach any vehicles and that 

he left the porch only to greet a friend with a handshake. He 

further maintained that the pager was not his own. 

 II. 

 When considering the sufficiency of the evidence on appeal 

in a criminal case, this Court views the evidence in a light most 

favorable to the Commonwealth, granting to it all reasonable 

inferences fairly deducible therefrom. Higginbotham v. 

Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975). On 

review, this Court does not substitute its own judgment for that 

of the trier of fact. Cable v. Commonwealth, 243 Va. 236, 239, 

415 S.E.2d 218, 220 (1992). The trial court's judgment will not 

be set aside unless it appears that the judgment is plainly wrong 

or without evidence to support it. Code § 8.01-680; Josephs v. 

Commonwealth, 10 Va. App. 87, 99, 390 S.E.2d 491, 497 (1990) (en 

banc). "It is fundamental that `the credibility of witnesses and 

the weight accorded their testimony are matters solely for the 

fact finder 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)). 

 In this case the Commonwealth relied wholly on 
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circumstantial evidence to prove that appellant possessed the 

cocaine found under the porch and that he intended to distribute 

it. As such, "`all necessary circumstances proved must be 

consistent with guilt and inconsistent with innocence and exclude 

every reasonable hypothesis of innocence.'" Moran v. 

Commonwealth, 4 Va. App. 310, 314, 357 S.E.2d 551, 553 (1987) 

(citation omitted); see also Dukes v. Commonwealth, 227 Va. 119, 

122, 313 S.E.2d 382, 383 (1984); Wilkins v. Commonwealth, 18 Va. 

App. 293, 298, 443 S.E.2d 440, 444 (1994). The Commonwealth, 

however, "`is not required to disprove every remote possibility 

of innocence, but is, instead, required only to establish guilt 

of the accused to the exclusion of a reasonable doubt.'" 

Cantrell v. Commonwealth, 7 Va. App. 269, 289, 373 S.E.2d 328, 

338 (1988), cert. denied, 496 U.S. 911 (1990) (quoting Bridgeman 

v. Commonwealth, 3 Va. App. 523, 526-27, 351 S.E.2d 598, 600 

(1986)). "The hypotheses which the prosecution must reasonably 

exclude are those `which flow from the evidence itself, and not 

from the imagination of defendant's counsel.'" Id. at 289-90, 

373 S.E.2d at 338-39 (quoting Black v. Commonwealth, 222 Va. 838, 

841, 284 S.E.2d 608, 609 (1981)). Whether an alternative 

hypothesis is a "reasonable hypothesis of innocence" is a 

question of fact. Cantrell, 7 Va. App. at 290, 373 S.E.2d at 

339. Unless plainly wrong, a trial court's factual finding is 

binding on appeal. E.g., Naulty v. Commonwealth, 2 Va. App. 523, 

527, 346 S.E.2d 540, 542 (1986). 
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 As appellant concedes, "[t]he Commonwealth is not required 

to prove that there is no possibility that someone else may have 

planted, discarded, abandoned or placed the drugs [where they are 

found near an accused]." See, e.g., Brown v. Commonwealth, 15 

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

 "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)). Neither proximity to contraband nor 

presence on the premises where it is found are alone sufficient 

to establish constructive possession. E.g., Brown, 15 Va. App. 

at 9, 421 S.E.2d at 882-83. However, both proximity and presence 

are factors the trial court may consider in evaluating the 

totality of circumstances. Lane v. Commonwealth, 223 Va. 713, 

716, 292 S.E.2d 358, 360 (1982); Brown, 15 Va. App. at 10, 421 

S.E.2d at 883; Castaneda v. Commonwealth, 7 Va. App. 574, 584, 

376 S.E.2d 82, 87 (1989). An accused's knowledge of the presence 

of contraband "may be proved by evidence of acts, declarations or 

conduct of the accused from which the inference may be fairly 

drawn that [the accused] knew of the existence of narcotics at 

the place where they were found.'" Hairston v. Commonwealth, 5 

Va. App. 183, 186, 360 S.E.2d 893, 895 (1987) (quoting People v. 
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Pigrenet, 26 Ill. 2d 224, 227, 186 N.E.2d 306, 308 (1962)). 

 In light of these principles, we find that the record 

contains sufficient evidence to support the trial court's finding 

beyond a reasonable doubt that appellant possessed the cocaine 

found under the porch and that he intended to distribute it. The 

record supports only one explanation for appellant's activity in 

relation to the downspout and his engagement with passing 

motorists and pedestrians: appellant was dealing drugs. Officer 

Hise testified that appellant engaged numerous passers-by in 

conjunction with his repeated trips to retrieve objects near a 

downspout. Hise witnessed a transaction between appellant and a 

pedestrian that he did not mistake for a handshake. Hise 

testified that appellant's activity was consistent with other 

drug transactions he had witnessed. The activity described by 

Hise was consistent with Officer Duff's generic description of a 

drug transaction and his description of a drug dealer's use of a 

"stash." No reasonable, contrary hypothesis to explain 

appellant's activity flows from the evidence. Appellant's 

testimony, that he left the porch only once to discard a beer 

bottle and that he engaged no motorists and greeted only one 

pedestrian with a handshake, was wholly contradicted by the 

testimony of the officer. The trial court was entitled to 

conclude that appellant's conflicting testimony concerning his 

activity was untruthful and to infer from that determination that 

appellant was concealing his guilt. See Speight v. Commonwealth, 
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4 Va. App. 83, 88, 354 S.E.2d 95, 98 (1987). 

 The evidence of appellant's drug dealing is a significant 

circumstance establishing both that he possessed the cocaine 

found under the porch and that he intended to distribute it. The 

conclusion that appellant constructively possessed the cocaine 

found under the porch is further supported by Officer 

Poindexter's testimony. Poindexter observed appellant make a 

sweeping motion with his hand as if to discard something between 

his legs as the officers approached him; she then found the 

cocaine lying directly beneath appellant's seat on the porch. 

See Collins, 13 Va. App. at 178-79, 409 S.E.2d at 175-76. The 

testimony of the officers established that appellant shared the 

porch steps with at most one other person at the time the 

officers approached, not six as appellant described. Moreover, 

Poindexter testified that she saw no one other than appellant 

make a sweeping motion with his hand as if to discard something 

under the porch. The conclusion that appellant intended to 

distribute the cocaine is further supported by the presence of an 

unusual amount of money, reflecting, by inference, profit from 

sales, and the quantity of cocaine found, exceeding by nearly 

four times the amount typically purchased in an individual 

transaction. See Servis v. Commonwealth, 6 Va. App. 507, 524, 

371 S.E.2d 156, 165 (1988). 

 The decision of the trial court is accordingly affirmed. 

Affirmed.
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Benton, J., dissenting. 

 The Supreme Court of Virginia has consistently held that 

convictions may not be based upon speculation, surmise, or 

conjecture. 

 It is, of course, a truism of the criminal 

law that evidence is not sufficient to 

support a conviction if it engenders only a 

suspicion or even a probability of guilt. 

Conviction cannot rest upon conjecture. The 

evidence must be such that it excludes every 

reasonable hypothesis of innocence. 

Smith v. Commonwealth, 192 Va. 453, 461, 65 S.E.2d 528, 533 

(1951); see also Hyde v. Commonwealth, 217 Va. 950, 955, 234 

S.E.2d 74, 78 (1977). That holding is grounded in the 

constitutional principle that "the Due Process Clause protects 

the accused against conviction except upon proof beyond a 

reasonable doubt of every fact necessary to constitute the crime 

with which [the accused] is charged." In re Winship, 397 U.S. 

358, 364 (1970). 

 "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.'" Drew v. Commonwealth, 230 Va. 471, 473, 

338 S.E.2d 844, 845 (1986) (citation omitted). Where the 

Commonwealth relies upon circumstantial evidence to prove guilt, 

that circumstantial evidence must be "wholly inconsistent with 
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the innocence of [the] defendant." Foster v. Commonwealth, 209 

Va. 326, 330, 163 S.E.2d 601, 604 (1968). In other words, 

"'[w]here inferences are relied upon to establish [a factual 

element of the offense], they must point to [that fact] so 

clearly that any other conclusion would be inconsistent 

therewith.'" Dotson v. Commonwealth, 171 Va. 514, 518, 199 S.E. 

471, 473 (1938) (citation omitted). Thus, "circumstances of 

suspicion, no matter how grave or strong, are not proof of guilt 

sufficient to support a [guilty] verdict" beyond a reasonable 

doubt. Powers v. Commonwealth, 182 Va. 669, 676, 30 S.E.2d 22, 

25 (1944). 

 The officer who was conducting the surveillance that evening 

testified that before Roy Carlton Davis sat on the steps, Davis 

walked several times to the drain pipe at the corner of the 

house, picked up something, and gave it to other people. 

However, the officer could not identify the item. Although the 

surveillance officer was watching Davis as Davis sat on the 

steps, he did not see Davis holding any item. Moreover, when the 

surveillance officer commanded the other officers to enter the 

area, he directed them to search the area by the drain pipe. 

When they searched the area of the drain pipe they found no drugs 

or contraband. 

 Davis was sitting on the steps when the officers arrived and 

went to the drain pipe. Another person was also sitting on the 

steps. Indeed, two to four people had earlier sat on the steps 
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at various times. The surveillance officer was unsure of the 

conduct of those other people because his attention was primarily 

drawn to Davis. 

 Although the officer who went to search the drain pipe 

testified that she saw Davis make a "sweeping" motion with his 

hands between his legs while he was sitting on the steps, she saw 

nothing in Davis' hand. After she went to the drain pipe and 

found nothing there, she returned to the steps of the house, 

shone her flashlight under the steps and discovered a plastic 

baggie of cocaine on the ground. 

 This evidence failed to prove that Davis was aware of the 

presence of the cocaine under the steps or that he had dominion 

and control of the cocaine. Davis' presence on the steps does 

not prove constructive possession of the cocaine found under the 

steps. "Mere proximity to a controlled drug is not sufficient to 

establish dominion and control." Drew, 230 Va. at 473, 338 

S.E.2d at 845. 

 The majority's conclusion that Davis must have thrown the 

drugs on the ground under the steps is merely conjecture and 

based only on the suspicion that he was hiding drugs near the 

drain pipe. However, none of the officers who testified saw 

anything in Davis' hand. The majority speculates that Davis had 

something in his hands. From that speculation, it then infers 

that he threw that something under the steps. The principle is 

well established, however, that a conclusion that an accused is 
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guilty "cannot rest upon conjecture or suspicion." Dixon v. 

Commonwealth, 162 Va. 798, 801, 173 S.E. 521, 522 (1934). 

Indeed, the evidence must do more than suggest even a 

"'probability of guilt[;] . . . the evidence must go further and 

exclude every reasonable hypothesis except that of guilt.'" Id.

 (citation omitted). 

 The evidence proved a reasonable hypothesis that explained 

the presence of the cocaine under the steps. The uncontradicted 

evidence established that the house and the steps were located in 

a "high drug area." Two to four other people were on the steps 

that night and other people were in the area. In addition, the 

officer testified as follows: 

 A lot of times drug dealers will keep their 

drugs away from their person actually 

stashing the drugs at a separate location, 

sometimes under a rock. Some open air drug 

markets are heavily trashed with litter. 

Narcotics are kept in chip bags, brown pieces 

of paper that can be balled up and dropped 

with the trash so it doesn't look suspicious 

or out of the ordinary. That is to keep the 

narcotics off of the person while they 

conduct business. They can then go to the 

stash as they need the cocaine. 

Thus, the presence of drugs that appeared to be unattended was 

explained. 

 When the speculation is excluded, the evidence does not even 

make it more likely that Davis, rather than the other individuals 

on the steps or in the area, used the space under the steps to 

hide the drugs. The possibility that Davis discarded the cocaine 

is merely one of several hypotheses. However, "[w]henever 
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'evidence leaves indifferent which of several hypotheses is true, 

or merely establishes only some finite probability in favor of 

one hypothesis, such evidence does not amount to proof of guilt 

beyond a reasonable doubt.'" Pemberton v. Commonwealth, 17 Va. 

App. 651, 654, 440 S.E.2d 420, 422 (1994) (citation omitted); see

also Hairston v. Commonwealth, 5 Va. App. 183, 186-87, 360 S.E.2d 

893, 895 (1987). "The guilt of a party is not to be inferred 

because the facts are consistent with his guilt, but they must be 

inconsistent with his innocence." Cameron v. Commonwealth, 211 

Va. 108, 110-11, 175 S.E.2d 275, 276 (1970). 

 Because the evidence in this case creates only a suspicion 

of guilt, I would reverse the conviction. Therefore, I dissent.