COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Coleman and Overton 

MELVIN K. ACORS 

v. Record No. 0538-95-2 MEMORANDUM OPINION* BY 

 JUDGE SAM W. COLEMAN III 

COMMONWEALTH OF VIRGINIA APRIL 16, 1996 

 FROM THE CIRCUIT COURT OF THE CITY OF FREDERICKSBURG 

William H. Ledbetter, Jr., Judge 

 (Michael J. George, on brief), for appellant. 

 Appellant submitting on brief. 

 (James S. Gilmore, III, Attorney General; 

Eugene Murphy, Assistant Attorney General, on 

brief), for appellee. Appellee submitting on 

brief. 

 Melvin K. Acors appeals his conviction for possession of 

cocaine on the ground that the evidence is insufficient to 

sustain the conviction. We hold that the evidence is sufficient 

to prove that the defendant possessed the cocaine found by the 

police and affirm his conviction. 

 The dispositive issue in this case is whether the 

circumstantial evidence proves beyond a reasonable doubt that the 

item which the defendant was seen to have thrown away when 

confronted by police officers was cocaine found in the vicinity 

where the item was thrown. 

 

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

designated for publication. 
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I. FACTS

 Officer Doug Perkins of the Fredericksburg Police 

Department, along with several other officers, went to a home in 

Fredericksburg to execute a search warrant. When Perkins 

approached the house from the rear along a dark alleyway, he 

heard voices coming from the street. He saw the defendant and 

another man coming down the alleyway "from the front of the 

house." Perkins called out "Police . . . [g]et on the [g]round," 

and turned his flashlight on the men when they were approximately 

ten to fifteen feet away. At that point, the defendant reached 

into his pocket, removed "a dull white object" that was "[a]bout 

the size of a small ball," and threw it into an adjoining yard 

over a chain link fence and shrubs. Perkins testified that 

although he did not "see [the object] land because the shrubs 

were in the way, he "could estimate where [the object] landed." 

He testified that the defendant "made a second throwing motion in 

the same manner, but [that he] couldn't see anything leave his 

hand" that time. 

 After securing the two men, Perkins assisted the other 

officers in "raid[ing] the house," which took about "three to 

five minutes." After executing the search warrant, Perkins told 

Detective Brent Taylor that he had "observed the [defendant] 

throw something over the fence." Perkins and Taylor went to the 

"adjoining yard" and Perkins "showed Detective Taylor where [he] 

felt this item that was thrown across the fence should be." They 
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"[w]alked right to . . . a baggie containing suspected crack 

cocaine." According to Perkins, the "yard was fairly well 

groomed and mowed," and they did not see or find any other white 

objects on the ground. Perkins testified that he had never 

before been in the yard. After finding the baggie, Perkins 

returned to the alleyway and identified the defendant as the 

person he had seen who threw the object over the fence. 

 On cross-examination, Perkins testified that the area was 

known for drug activity. He also testified that the defendant 

was not named or mentioned in the search warrant, that he had 

primarily focused his attention on the defendant, and that he did 

not shine his flashlight on the second individual. 

II. ANALYSIS 

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

(1991), the police officer drove his patrol car into a 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 
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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). 

 Here, Officer Perkins had his flashlight trained on the 

defendant from a distance of approximately ten to fifteen feet. 

He saw the defendant throw a dull white object into an adjoining 

yard and over a chain link fence and shrubs. Unlike the officer 

in Collins, Officer Perkins saw the object leave the defendant's 

hand. He was unequivocal in his testimony that the defendant 

made a throwing motion. See Collins, 13 Va. App. at 180, 409 

S.E.2d at 176 (Benton, J., dissenting). A few minutes after 

Perkins saw the defendant throw the object, Perkins and Detective 

Taylor found a plastic baggie containing a white substance or 

"chunk" in the area of the adjoining yard where Perkins estimated 

that the object the defendant threw had landed. The substance 

was determined to be crack cocaine. 

 The evidence here, viewed in the light most favorable to the 

Commonwealth and granting to it "all reasonable inferences [that 

may be] drawn therefrom," creates more than "a mere suspicion" 

that the crack cocaine found in the adjoining yard by Officers 

Perkins and Taylor was the same item that the defendant was seen 
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to have possessed and thrown into the adjoining yard. 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) ("Numerous 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."). The object found in the adjoining yard had the 

same physical appearance as the item the defendant was seen to 

have thrown, the officers observed no other objects in the 

vicinity, no other persons were observed in the area, it was a 

relatively private area rather than a public thoroughfare, and 

very little time lapsed between when the defendant was seen 

throwing an object and when the cocaine was retrieved. See

Johnson v. Commonwealth, 12 Va. App. 150, 153, 402 S.E.2d 502, 

504 (1991) (stating that "the drugs were found in a relatively 

private area" in affirming a conviction for possession of cocaine 

with intent to distribute). These facts identify unerringly that 

the item that the defendant threw across the fence when 

confronted by the police officers was the crack cocaine that was 

later retrieved. Accordingly, the evidence is sufficient to 

support the defendant's conviction. 

Affirmed.
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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)). 

Because the evidence in this case fails to satisfy this standard, 

I would reverse the conviction. 

 The evidence proved that a police "SWAT" team was 

approaching a house in a "high drug area" at 11:30 p.m. to 

conduct a search for drugs. Because many people were standing 

near the front of the house, one group of officers approached the 

house from the rear through a dark alley. Officer Perkins saw 

Melvin Acors walking fast in the alley in a direction away from 

the street where the house was located. Another man was walking 

a few feet behind Acors. Officer Perkins testified that after he 

verbally confronted the two men, he noticed Acors throw a small 

object over a hedge in the backyard of the house adjacent to the 

house that was to be searched. He also observed Acors make a 

second throwing motion. The other man turned as if to retreat. 

Officer Perkins could not see whether the man who turned to 

retreat threw anything. He ordered both men to the ground. 

 Officer Perkins said the item Acors threw cleared a large 

hedge; however, he could not see where the object landed. After 
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Acors and the other man were prone on the ground, Officer Perkins 

left them in the custody of another officer. Officer Perkins 

continued to the house, entered it, and assisted other officers 

in securing the house for the search. 

 While Officer Perkins was in the house, Officer Taylor 

learned from an unidentified officer that "someone threw 

something" into the backyard of the adjacent house. Officer 

Taylor went into the backyard and looked beneath and around the 

bushes across from Acors but did not find any object. Officer 

Taylor then went into the house that was being searched and saw 

Officer Perkins. Officer Perkins, who had been in the house five 

minutes, accompanied Officer Taylor through the front gate of the 

yard where Officer Taylor had searched. Officer Perkins 

"estimated approximately where [the men stopped in the alleyway] 

and walked right to the object." Because of the height of the 

hedges and the darkness, Officer Perkins could not see Acors and 

the other man who were still prone on the ground. Officer 

Perkins testified that the object he found in the backyard, a 

small packet of cocaine, was "six to ten feet from the chain link 

fence and the shrubs." 

 This evidence creates a mere suspicion that the object 

Officer Perkins found in the backyard of the house was thrown by 

Acors. "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). The 
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evidence fails to exclude the reasonable hypothesis that the 

object, located in a yard across the alley from a house that was 

raided for drugs, was not placed there by some other person for 

quick retrieval. Indeed, the evidence proved that this was a 

"high drug area" and that many people were loitering on the 

street in front of the house that was raided. Furthermore, the 

evidence does not exclude the possibility that when the man 

walking behind Acors turned to retreat, he tossed the object that 

Officer Perkins recovered. 

 The evidence did not prove that Acors threw an "identifiable 

object" and that the same object was recovered. See Gordon v. 

Commonwealth, 212 Va. 298, 300, 183 S.E.2d 735, 737 (1971). 

Merely identifying the recovered object as "the 'same color, size 

and shape'" as the object Officer Perkins believed Acors 

possessed raises only a suspicion or probability of guilt. Id.

at 298, 183 S.E.2d at 736. "There must be an unbroken chain of 

circumstances 'proving the guilt of [Acors] to the "exclusion of 

any other rational hypothesis and to a moral certainty."'" Id.

at 300, 183 S.E.2d at 737 (quoting Brown v. Commonwealth, 211 Va. 

252, 255, 176 S.E.2d 813, 815 (1970)). Officer Perkins' belief 

that he recovered the same object thrown by Acors was 

speculation. He did not see the object after it passed beyond 

the hedges and fell in the dark. Thus, I would hold that the 

evidence was insufficient to prove beyond a reasonable doubt that 

Acors possessed the cocaine that was found in the yard.