COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judges Coleman 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., Appellate Defender 

(Public Defender Commission, on briefs), for 

appellant. 

 Thomas M. McKenna, Assistant Attorney 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 Sylvester Gunn (appellant) appeals his conviction for 

possession of cocaine in violation of Code § 18.2-250. On appeal, 

he contends the evidence was insufficient. We disagree and affirm 

the conviction. 

I. BACKGROUND 

 Appellant was arrested by Officer Hancock of the Danville 

Police Department for being drunk in public. The officer asked 

appellant if he had "any weapons or needles or anything on him." 

Appellant immediately put his left hand into his pocket. The 

officer grabbed appellant's hand and asked appellant what he was 
doing. Appellant answered, "I'm just getting some money, 

man . . . I'm just getting some money." The officer then pulled 

appellant's hand out of the pocket and saw money in appellant's 

hand. Appellant put his hand back in his pocket, and the officer 

removed it when he placed appellant against the police car. As 

the officer pulled appellant's hand out of his pocket on the 

second occasion, he observed 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 appellant in the police 

unit, the officer retrieved the item that had been dropped. The 

officer found a suspected smoking device and a cigarette lighter 

exactly where appellant's left leg had been when he dropped the 

object. There was nothing else in the area. The pipe was 

analyzed and found to contain cocaine. 

II. ANALYSIS 

 Under familiar principles of appellate review, we examine the 

evidence in the light most favorable to the Commonwealth, granting 

to it all reasonable inferences fairly deducible therefrom. 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 evidence to support it. See id.

(citations omitted). The inferences to be drawn from proven facts 

are matters for determination by the fact finder. See Hancock v. 

Commonwealth, 12 Va. App. 774, 782, 407 S.E.2d 301, 306 (1991) 

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(citing Johnson v. Commonwealth, 209 Va. 291, 295, 163 S.E.2d 570, 

574 (1968)). 

 "To establish possession of a controlled substance, [it] 

generally is necessary to show that the defendant was aware of the 

presence and character of the particular substance and was 

intentionally and consciously in possession of it." Gillis v. 

Commonwealth, 215 Va. 298, 301, 208 S.E.2d 768, 771 (1974). 

Constructive possession may be proved through evidence 

demonstrating "the accused was aware of both the presence and 

character of the substance 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. Commonwealth, 230 

Va. 471, 473, 338 S.E.2d 844, 845 (1986)). 

 Circumstantial evidence is sufficient to prove guilt beyond a 

reasonable doubt so long as "all necessary circumstances proved 

[are] consistent with guilt and inconsistent with innocence 

and . . . exclude every reasonable hypothesis of innocence." 

Bishop v. Commonwealth, 227 Va. 164, 169, 313 S.E.2d 390, 393 

(1984). The Commonwealth "need not affirmatively disprove all 

theories which might negate the conclusion that the defendant 

[possessed the cocaine], but the conviction 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 

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870 (1975); Orange v. Commonwealth, 191 Va. 423, 434, 61 S.E.2d 

267, 271 (1950)). 

 Proof of constructive possession necessarily rests on 

circumstantial evidence; thus, "'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) (citations omitted). 

 The Commonwealth "'is not required to prove that there is no 

possibility that someone else may have planted, discarded, 

abandoned, or placed the drugs or paraphernalia where they were 

found near an accused.'" Pemberton v. Commonwealth, 17 Va. App. 

651, 655, 440 S.E.2d 420, 422 (1994) (quoting Brown v. 

Commonwealth, 15 Va. App. 1, 10, 421 S.E.2d 877, 883 (1992) (en

banc)). 

 Appellant contends the area was a "high drug area" and the 

smoking device could have been discarded by another person. 

Appellant, therefore, reasons that because there is a reasonable 

hypothesis consistent with innocence, the evidence was 

insufficient to support his conviction. 

 The trial court could infer from the evidence that appellant 

intended to discard the pipe to avoid detection. Yet, under 

appellant's argument that the pipe was already at his feet, the 

trial court would have to infer that appellant discarded the 

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lighter, an innocuous object. This is not a reasonable hypothesis 

and was rejected by the trial court. 

 As the Supreme Court of Virginia has stated: 

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. 

Gordon v. Commonwealth, 212 Va. 298, 300, 183 S.E.2d 735, 737 

(1971) (citations omitted). 

 In Collins v. Commonwealth, 13 Va. App. 177, 178, 409 S.E.2d 

175, 175 (1991), the police observed the defendant make a throwing 

motion as he left his vehicle. No one saw whether he had actually 

thrown anything. See id. at 179, 409 S.E.2d at 176. Underneath 

the car in which the defendant had been sitting, the officers 

found a bag of cocaine. See id. at 178, 409 S.E.2d at 175. 

Despite varied proffered theories of innocence, including one like 

appellant's argument, this Court upheld the conviction, 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 Collins' argument that the 

cocaine might have already been under his 

car. The judge discounted this possibility, 

observing that the cocaine was "something of 

significant value and not something that one 

is likely to have abandoned or carelessly 

left in the area there." 

Id. at 179-80, 409 S.E.2d at 176. 

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 Likewise, in Powell v. Commonwealth, 27 Va. App. 173, 497 

S.E.2d 899 (1998), this Court again upheld a conviction where the 

evidence showed that the defendant unclenched his fist when 

approached by the police in a high drug-crime area. No one saw 

the defendant actually drop something, but the police recovered a 

bag of cocaine from the 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 that the bag of cocaine found in a 

heavily-traveled roadway was correctly held to be in the 

defendant's possession. Earlier, the defendant tried to flee from 

approaching officers and dropped an unidentified object in the 

roadway. See id. at 165, 403 S.E.2d at 177-78. "We hold that the 

evidence was sufficient to permit an inference that the drugs 

found on the roadway were discarded by appellant as he sped from 

his arrest, and was sufficient to exclude any reasonable 

hypothesis of innocence which flowed from the evidence." Id. at 

165, 403 S.E.2d at 178 (citations omitted). 

 Viewing the evidence in the light most favorable to the 

Commonwealth, we hold that the evidence was sufficient to find 

appellant in constructive possession of the cocaine. An object 

fell from appellant's pocket as his hand was withdrawn from the 

pocket. Appellant disobeyed the officer's direction to remove his 

hands from his pockets. The pipe was found exactly where the 

object had fallen, where appellant's foot had been. 

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 Therefore, we affirm the judgment of the trial court. 

Affirmed.

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