COURT OF APPEALS OF VIRGINIA

Present: Chie f Judge Fitzpatr ick, Judges Co leman and Frank Argued at Salem, Virginia

WAYNE SYLVESTER GUNN MEMORANDUM OPINION * BY v. Record No. 1788-99-3 JUDGE ROBERT P. FRANK JUNE 13, 2000 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE James F. Ingram, Judge Elwood Earl Sanders, Jr., Appellat e Defender (Public Defender Commission, on briefs), for appellant. Thomas M. McKenna, As sistant Attorn ey General (Mark L. Earley, Attorney General, on brief), for appellee.

* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. Wayne Sylveste r Gunn (appellant) appe als his conv iction for possession of coca ine in violation of Code § 18.2-250. On appeal, he contends the evidence was insufficie nt. We disagree and affirm the conviction. I. BACKGROUND Appellant was arrested by Of ficer Hancock of the Danville Police Department for being drunk in public . The offi cer asked appellant if he had "any weapons or needle s or anything on him." Appellant imme diately put his le ft hand into hi s pocket. The officer grabbed ap pellant's hand and asked appellant wh at he wasdoing. Appell ant answered, "I 'm just gettin g some money, man . . . I'm just getting some mo ney." The office r then pulled appellant's ha nd out of the pocket and saw money in appellant's hand. Appellant put hi s hand back in his po cket, and th e officer removed it when he pl aced appellant against the police car. As the officer pulled appellant's ha nd out of his pocket on the second occasion, he ob served something fall from the pocket onto the ground. He could not tell what it was, and he did not retrieve it at that time. After securing ap pellant in the police unit, the officer retrieved the item that had been dropped. The officer found a su spected smoking device and a ci garette lighter exactly where appe llant's left leg had been when he dropped the object. There was no thing else in the ar ea. The pipe was analyzed and found to contain cocaine. II. ANALYSIS Under familiar princi ples of appell ate review, we examine the evidence in the light most favorable to th e Commonwealth , granting to it all reason able inferences fairly deducible th erefrom. See Martin v. Commonwealth , 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987). The judgment of a trial court will be disturbed only if plainly wrong or without evid ence to su pport it. See id. (citations omitted). Th e inferences to be drawn from proven facts are matters for de termination by th e fact finder. See Hancock v. Commonwealth , 12 Va. App. 774, 782, 407 S.E.2d 301, 306 (1991)

- 2 -(citing Johnson v. Commonwealth , 209 Va. 291, 295, 163 S.E.2d 570, 574 (1968)). "To establish possession of a controlled su bstance, [it] generally is necessary to show that the defe ndant was aw are of the presence and characte r of the particular substance and was intentionally and consciously in possession of it." Gillis v. Commonwealth , 215 Va. 298, 30 1, 208 S.E.2d 76 8, 771 (1974). Constructive posses sion may be proved through evidence demonstrating "the accused was aware of both the presence and character of the substa nce and that it was subject to his or her dominion and control." Wymer v. Commonwealth , 12 Va. App. 294, 300, 403 S.E.2d 702, 706 (1991) (citing Drew v. Co mmonwealth , 230 Va. 471, 473, 338 S.E.2d 844, 84 5 (1986)). Circumstantial eviden ce is sufficient to prove guilt beyond a reasonable doubt so lo ng as "all necessary circumstance s proved [are] consistent with guilt and incons istent with innocence and . . . exclude ever y reasonable hypothes is of inno cence." Bishop v. Commonwealth , 227 Va. 164, 169, 313 S.E.2d 390, 393 (1984). The Commonwe alth "need not affirm atively disp rove all theories which might negate the conclusion that the defendant [possessed the cocaine] , but the convic tion will be sustained if the evidence excludes every reasonable hypothesis of innocence." Higginbotham v. Commonwealth , 216 Va. 349, 353, 218 S.E.2d 534, 537 (1975) (citing Payne v. Commonwealth , 216 Va. 265, 217 S.E.2d

- 3 -870 (1975); Orange v. Commonwealth , 191 Va. 423, 43 4, 61 S.E.2d 267, 271 (1950)). Proof of constructive poss ession necessar ily rests on circumstantial evidence; thus, "'all necessary circumstances proved must be cons istent with guilt an d inconsistent with innocence and exclude every reasonab le hypothesis of innocence.'" Garland v. Commonwealth , 225 Va. 182, 184, 300 S.E.2d 783, 784 (1983) (citatio ns omitted). The Commonwealth "'is not required to prove that there is no possibility that someone else may have planted, discarded, abandoned, or pl aced the drugs or paraph ernalia where they were found near an accused.'" Pemberton v. Commonwealth , 17 Va. App. 651, 655, 440 S.E.2d 420, 422 (1 994) (quoting Brown v. Commonwealth , 15 Va. App. 1, 10, 421 S.E.2d 877, 883 (1992) ( en banc )). Appellant cont ends the area was a "h igh drug area" and the smoking device could have been discarded by another person. Appellant, therefore, reasons that because th ere is a reasonable hypothesis consiste nt with innocence, the evidence was insufficient to support his conviction. The trial court could infer from the evidence that appellant intended to disc ard the pipe to avoid detection. Yet, under appellant's ar gument that the pipe was already at his feet, the trial court woul d have to infe r that appellan t discarded the

- 4 -lighter, an innocu ous object. This is not a reasonable hypothesis and was reject ed by the trial court. As the Supreme Court of Virginia has stated: Numerous decisions have affirmed convictions for possession of narcotic dr ugs resting on proof that a defendant was observed dropping or throwing away an identifiable object which, when subs equently recove red, was found to contain narcotics. Gordon v. Commonwealth , 212 Va. 298, 300, 183 S.E.2d 735, 737 (1971) (citatio ns omitted).

In Collins v. Commonwealth , 13 Va. App. 177, 178, 409 S.E.2d 175, 175 (1991), the po lice observed the defe ndant make a throwing motion as he left his vehicle. No one saw wh ether he had actually thrown anything. See id. at 179, 409 S.E.2d at 176. Underneath the car in which the defendant had be en sitting, the officers found a bag of cocaine. See id. at 178, 409 S. E.2d at 175. Despite varied proffere d theories of innocence, including one like appellant's ar gument, this Court upheld the convicti on, stating that the trial court's finding of possession was: binding on us, unless it is incredible or plainly wrong . . . . The trial court was not unmindful of Collin s' argument that the cocaine might ha ve already been under his car. The judge discounted this possibility, observing that the coca ine was "som ething of significant valu e and not someth ing that one is likely to have abandoned or carelessly left in the area there." Id. at 179-80, 409 S.E.2d at 176.

- 5 -Likewise, in Powell v. Commonwealth , 27 Va. App. 173, 497 S.E.2d 899 (1998), this Court again up held a conviction where the evidence showed that the defendant unclenched his fist when approached by th e police in a high drug-c rime area. No one saw the defendant actu ally drop someth ing, but the poli ce recovered a bag of cocaine from th e ground below where he made the dropping motion. See id. at 176, 497 S. E.2d at 900.

In Beverly v. Commonwealth , 12 Va. App. 160, 403 S.E.2d 175 (1991), we held th at the bag of co caine found in a heavily-traveled roadway was co rrectly held to be in the defendant's poss ession. Earlier, the defe ndant tried to flee from approaching of ficers and dropped an unid entified object in the roadway. See id. at 165, 403 S.E. 2d at 177-78. "W e hold that the evidence was sufficient to permit an infe rence that the drugs found on the roadway we re discarded by appell ant as he sped from his arrest, and was sufficient to exclude an y reasonable hypothesis of innocence which flowed from th e evidence." Id. at 165, 403 S.E.2d at 17 8 (citations omitted). Viewing the ev idence in the light most favorable to the Commonwealth, we hold that the evidence was suff icient to find appellant in constructi ve possession of the cocaine. An object fell from appellant's pocket as his hand was with drawn from the pocket. Appellant diso beyed the officer's direction to remove his hands from his pocket s. The pipe was fo und exactly where the object had fallen, where ap pellant's foot had been. - 6 -Therefore, we affi rm the judgment of the trial court. Affirmed.

- 7 -