COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judges Benton, Coleman, 

 Willis, Elder, Bray, Annunziata, Overton, Bumgardner 

 and Lemons 

Argued at Richmond, Virginia 

GARRETT E. GRAVES 

 MEMORANDUM OPINION* BY 

v. Record No. 2046-97-3 JUDGE NELSON T. OVERTON 

 JANUARY 12, 1999 

COMMONWEALTH OF VIRGINIA 

UPON A REHEARING EN BANC 

FROM THE CIRCUIT COURT OF HALIFAX COUNTY 

William L. Wellons, Judge 

 Buddy A. Ward, Public Defender (Office of the 

Public Defender, on brief), for appellant. 

 Robert H. Anderson, III, Assistant Attorney 

General (Mark L. Earley, Attorney General, on 

brief), for appellee. 

 Garrett Graves (defendant) was convicted of possession of a 

controlled substance, in violation of Code § 18.2-250, by the 

Circuit Court of Halifax County. He appealed, contending that 

the evidence was insufficient to support his conviction. A panel 

of this Court held the evidence to be insufficient and reversed 

the judgment of the trial court. See Graves v. Commonwealth, 

Record No. 2046-97-2 (Va. Ct. App. June 16, 1998). We stayed the 

mandate of that decision and granted a rehearing en banc. Upon 

rehearing en banc, we affirm the judgment of the trial court. 

 "An appellate court must discard all evidence of the accused 

that conflicts with that of the Commonwealth and regard as true 

 

 *Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, 

this opinion is not designated for publication. 
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all credible evidence favorable to the Commonwealth and all fair 

inferences reasonably deducible therefrom." Lea v. Commonwealth, 

16 Va. App. 300, 303, 429 S.E.2d 477, 479 (1993). So viewed, the 

evidence adduced at trial revealed that on December 6, 1996, 

Officer Keith Tribble of the Halifax County Sheriff's Department 

stopped a car driven by defendant because the car had an 

inoperable headlight. Defendant was the only occupant of the 

vehicle. Officer Tribble talked with defendant, read him his 

Miranda warnings and arrested defendant for driving while 

intoxicated and without an operator's license. 

 Defendant told Officer Tribble that the car belonged to 

defendant, he had cleaned the car earlier that evening and he 

previously had two passengers in the car. The car, however, was 

registered to defendant's sister. Pursuant to the arrest, 

Officer Tribble searched the car and found a bag which contained 

a perforated beer can. The bag was located on the floor of the 

front passenger's side of the car. The beer can was modified so 

that it could be used to smoke cocaine and, in fact, cocaine 

residue was visible on the can. A laboratory analysis later 

confirmed the presence of cocaine. Officer Tribble also 

retrieved several small, white chunks from the center console of 

the car. A laboratory confirmed that these were cocaine. After 

the car was towed to the police station an inventory search was 

performed which uncovered another can underneath the driver's 

front seat, modified in a similar manner to the first. 
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 The decision of the trial court shall be affirmed unless it 

is plainly wrong or without support in the evidence. See Brown 

v. Commonwealth, 5 Va. App. 489, 491, 360 S.E.2d 719, 721 (1988). 

 For a conviction of possession of a controlled substance to 

stand, the Commonwealth needed to prove defendant either actually 

or constructively possessed the substance. See White v. 

Commonwealth, 24 Va. App. 446, 452, 482 S.E.2d 876, 879 (1997). 

Because the Commonwealth concedes that the conviction is grounded 

in a constructive possession theory, "the Commonwealth must point 

to 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 character of the 

substance and that it was subject to his dominion and control." 

Powers v. Commonwealth, 227 Va. 474, 476, 316 S.E.2d 739, 740 

(1984). The fact that the cocaine was found in a vehicle 

occupied by defendant does not create the presumption he 

possessed the drug, but is only one of the circumstances which we 

must consider. See Code § 18.2-250; Hardy v. Commonwealth, 17 

Va. App. 677, 682, 440 S.E.2d 434, 437 (1994). 

 We hold that the evidence presented at trial, taken in the 

proper light of appellate review, supports the conviction. 

Defendant was the sole occupant of the vehicle. The only 

evidence to the contrary comes from his own statements, which the 

trial court was entitled to find incredible. Cocaine and drug 

use paraphernalia were found in the car. The cocaine rocks were 
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in plain sight and within inches of defendant's seat when he was 

stopped. Finally, defendant testified he cleaned the car earlier 

in the evening, bolstering the evidence that he was familiar with 

the incriminating items contained therein. 

 In cases such as this, where the Commonwealth lacks direct 

evidence of guilt and must prove the case by circumstantial 

evidence, the facts must exclude "every reasonable hypothesis of 

innocence." Tucker v. Commonwealth, 18 Va. App. 141, 143, 442 

S.E.2d 419, 421 (1994). Yet such hypotheses must flow from the 

evidence and not result from speculation by the parties or the 

court. See Hamilton v. Commonwealth, 16 Va. App. 751, 755, 433 

S.E.2d 27, 29 (1993). When such a hypothesis has been rejected 

by the trial court, as it was in this case, that rejection is a 

finding of fact, binding on appeal. See Brown, 5 Va. App. at 

491, 360 S.E.2d at 721. The hypothesis that a previous passenger 

left the cocaine in the car without defendant's knowledge was 

rejected by the trial court, not supported by the evidence, and 

we may not resurrect it on appeal. All the facts cognizable by 

this Court fully support the inference that defendant controlled 

the car he was driving and knew of the cocaine and cocaine 

smoking devices contained therein. 

 Because the evidence was sufficient to support defendant's 

conviction, the conviction is affirmed. 

 Affirmed. 
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Elder, J., with whom Benton, J., joins, dissenting. 

 I respectfully dissent for the reasons stated in the 

memorandum opinion of the panel. See Graves v. Commonwealth, 

Record No. 2046-97-2 (Va. Ct. App. June 16, 1998).