COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judges Bumgardner and Humphreys 

Argued at Richmond, Virginia

MELVIN L. GILMORE 

 MEMORANDUM OPINION* BY 

v. Record No. 2130-00-2 JUDGE ROBERT J. HUMPHREYS 

 OCTOBER 30, 2001 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF MECKLENBURG COUNTY 

William L. Wellons, Judge 

 Buddy A. Ward, Public Defender (Robert R. 

Meeks, Senior Assistant Public Defender; 

Office of the Public Defender, on brief), for 

appellant. 

 Linwood T. Wells, Jr., Assistant Attorney 

General (Randolph A. Beales, Acting Attorney 

General, on brief), for appellee. 

 Melvin L. Gilmore appeals his conviction, after a bench 

trial, for possession of cocaine. Gilmore contends that the 

trial court erred in finding the evidence sufficient to support 

the conviction. Specifically, Gilmore argues that the 

Commonwealth failed to establish that he possessed cocaine with 

the requisite knowledge of the nature and character of the 

substance. We disagree and affirm his conviction. Because this 

opinion has no precedential value, we recite only those facts 

central to our holding. 

 

* Pursuant to Code § 17.1-413, this opinion is not 

designated for publication.
 On October 15, 1999, at approximately 10:15 p.m., Officer 

Merlin Burchette of the Chase City Police Department was 

assisting a fellow officer in a routine traffic stop. The 

female driver gave the officers permission to search the 

vehicle, and the officers asked both the driver and Gilmore, who 

was sitting in the front passenger seat, to step out of the 

vehicle to facilitate the search. Officer Burchette observed 

that Gilmore acted "jittery and [was fidgeting]" as he stepped 

out of the vehicle, so he asked Gilmore if he could pat him down 

to search for drugs and weapons. Gilmore replied that "he 

didn't have a problem with it." Upon completing the pat-down 

search, Burchette noticed "a hard or a rough feeling object on 

the outer right side of [Gilmore's] leg." Burchette then raised 

Gilmore's pant leg and a glass tube fell out onto the ground. 

Burchette asked Gilmore what the tube was, and Gilmore stated 

that he had "picked it up off the floor [of the car] and another 

individual put it there, and then [Gilmore] picked it up and put 

it in his sock." 

 Officer Burchette, who was trained in the area of narcotics 

investigation, believed that the glass tube, which contained a 

black colored substance and a light-brown colored substance, was 

a smoking device for crack cocaine. Accordingly, he placed 

Gilmore under arrest and read him his Miranda rights. After 

being tested, the lab certificate established that the tube 

indeed contained cocaine residue. 

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 At trial, Gilmore testified that at the time he picked the 

tube up off of the floor, he did not know what it was, nor did 

he know that it contained a controlled substance. He stated 

that there was a third person in the car who was sitting in the 

rear seat. After the car was stopped, Gilmore claimed that the 

rear passenger threw the tube to the front of the car. When the 

officers asked to search the car, Gilmore stated that he picked 

the tube up off of the floor and concealed it inside his sock 

because he knew something was wrong and wanted to protect the 

female driver, who was a friend of his. Gilmore testified, "I 

couldn't throw it out the window or anything like that, so I 

just stuck it inside my sock." The trial court denied Gilmore's 

motions to strike and ultimately found Gilmore guilty of the 

offense. On appeal, Gilmore argues that the trial court erred 

in finding the evidence sufficient to establish he possessed the 

cocaine with the requisite knowledge of the nature and character 

of the substance. 

 Where the sufficiency of the evidence 

is challenged after conviction, it is our 

duty to consider it in the light most 

favorable to the Commonwealth and give it 

all reasonable inferences fairly deducible 

therefrom. We should affirm the judgment 

unless it appears from the evidence that the 

judgment is plainly wrong or without 

evidence to support it. 

Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 

537 (1975). Furthermore, "[w]itness credibility, the weight 

accorded the testimony and the inferences to be drawn from 

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proven facts are matters to be determined by the fact finder, 

and the trial court's judgment will not be disturbed on appeal 

unless it is plainly wrong or without evidence to support it." 

Sapp v. Commonwealth, 35 Va. App. 519, 526, 546 S.E.2d 245, 249 

(2001) (citing Code § 8.01-680; Long v. Commonwealth, 8 Va. 

App. 194, 199, 379 S.E.2d 473, 476 (1989)). 

 "The Commonwealth may prove possession of a controlled 

substance by showing either actual or constructive possession." 

Barlow v. Commonwealth, 26 Va. App. 421, 429, 494 S.E.2d 901, 

904 (1998). As stated by the trial court, possession is not an 

issue in the case. Gilmore clearly acknowledged that he 

obtained actual possession of the glass tube containing cocaine 

when he picked it up from the floor of the vehicle. 

 However, "'[t]o establish "possession" in the legal sense, 

it is not sufficient to simply show actual or constructive 

possession of the drug by the defendant. The Commonwealth must 

also establish that the defendant intentionally and consciously 

possessed it with knowledge of its nature and character.'" 

Armstrong v. Commonwealth, 29 Va. App. 102, 114, 510 S.E.2d 247, 

252 (1999) (quoting Burton v. Commonwealth, 215 Va. 711, 713, 

213 S.E.2d 757, 758-59 (1975)). "Knowledge of the presence and 

character of the controlled substance may be shown by evidence 

of the acts, statements or conduct of the accused." Eckhart v. 

Commonwealth, 222 Va. 447, 450, 281 S.E.2d 853, 855 (1981). 

Moreover, mere "[p]ossession of a controlled drug gives rise to 

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an inference of the defendant's knowledge of its character." 

Josephs v. Commonwealth, 10 Va. App. 87, 101, 390 S.E.2d 491, 

498-99 (1990) (en banc). 

 Here, Gilmore's actions in picking up the glass tube and 

attempting to conceal it before the police searched the vehicle, 

together with his physical possession of the tube containing the 

cocaine, support the trial court's finding that Gilmore had 

knowledge of the nature and character of the substance contained 

in the glass tube. We recognize that where, as here, the 

element of knowledge "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 Carter v. 

Commonwealth, 223 Va. 528, 532, 290 S.E.2d 865, 867 (1982)). 

Nevertheless, the trial court did not have to believe Gilmore's 

version of the events surrounding his possession of the glass 

tube. Indeed, as stated above, it is the fact finder who 

"evaluates the credibility of witnesses and the weight accorded 

their testimony. Further, the fact finder may disbelieve the 

self-serving testimony of the accused and conclude that he is 

lying to conceal his guilt." Burke v. Commonwealth, 30 Va. App. 

89, 93, 515 S.E.2d 777, 779 (1999) (citations omitted). 

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Accordingly, we conclude that the evidence was sufficient to 

sustain the conviction. 

 Affirmed.

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