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. 
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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 
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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 
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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) 
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(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.
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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)). 

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

dissent and would reverse the conviction.