COURT OF APPEALS OF VIRGINIA 

Present: Judges Baker, Bray and Overton 

Argued at Norfolk, Virginia 

MOSES HENRY CARNEY, JR. 

 MEMORANDUM OPINION* BY 

v. Record No. 2602-96-1 JUDGE RICHARD S. BRAY 

 SEPTEMBER 23, 1997 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON 

Christopher W. Hutton, Judge 

 Charles E. Haden (Pamela J. Jones, on brief), 

for appellant. 

 Monica S. McElyea, Assistant Attorney General 

(James S. Gilmore, III, Attorney General, on brief), 

for appellee. 

 Moses Henry Carney, Jr. (defendant), convicted in a bench 

trial for possession of cocaine, challenges the sufficiency of 

the evidence on appeal. We affirm the conviction. 

 The parties are fully conversant with the record, and this 

memorandum opinion recites only those facts necessary to a 

disposition of the appeal. 

 In reviewing the sufficiency of the evidence, we examine the 

record 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). The judgment of a trial court, sitting without a jury, 

is entitled to the same weight as a jury verdict and will be 

disturbed only if plainly wrong or without evidence to support 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
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it. See id. The credibility of a witness, the weight accorded 

the testimony, and the inferences to be drawn from proven facts 

are matters to be determined by the fact finder. See Long v. 

Commonwealth, 8 Va. App. 194, 199, 379 S.E.2d 473, 476 (1989). 

 It is well settled that 

 possession of a controlled substance may be 

actual or constructive. "To support a 

conviction based upon constructive 

possession, '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.'" 

McGee v. Commonwealth, 4 Va. App. 317, 322, 357 S.E.2d 738, 740 

(1987) (quoting Drew v. Commonwealth, 230 Va. 471, 473, 338 

S.E.2d 844, 845 (1986)) (other citations omitted). 

Circumstantial evidence may establish possession, provided it 

excludes every reasonable hypothesis of innocence. See, e.g., 

Tucker v. Commonwealth, 18 Va. App. 141, 143, 442 S.E.2d 419, 420 

(1994). However, "[t]he Commonwealth need only exclude 

reasonable hypotheses of innocence that flow from the evidence, 

not those that spring from the imagination of the defendant." 

Hamilton v. Commonwealth, 16 Va. App. 751, 755, 433 S.E.2d 27, 29 

(1993). The reasonableness of an hypothesis of innocence is a 

factual finding by the trial court, see Cantrell v. Commonwealth, 

7 Va. App. 269, 290, 373 S.E.2d 328, 339 (1988), binding on 

appeal unless plainly wrong. See Martin, 4 Va. App. at 443, 358 

S.E.2d at 418. 
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 Here, defendant refused to remove his hands from his pockets 

to permit police officers to "secure him in cuffs" incidental to 

arrest. Defendant's "passive resistance" persisted until he 

suddenly "started pulling his hands out" and "threw items" 

against the "back wall," some of which "slid down" behind an 

"entertainment center" located a "couple of inches" from the 

wall. Moments before the scuffle, Officer Anderson had inspected 

the "little space" separating the wall and entertainment center 

and observed only "dust and . . . electrical cords." However, 

when Anderson "looked again" after defendant tossed the articles 

from his pocket, he discovered "change" and a "clear baggie" 

containing the offending drug, items not "there . . . before." 

No one had been seen in "that area" since Anderson's initial 

search, and, in contrast to the surrounding floor, no dust or 

dirt was discernible on the baggie. 

 Such evidence clearly establishes that defendant discarded 

several items from his pocket during the encounter with the 

officers. See Glover v. Commonwealth, 3 Va. App. 152, 160-61, 

348 S.E.2d 434, 440 (1986) (upholding conviction for possession 

of cocaine discovered in rear seat of police vehicle previously 

searched by officer and later occupied only by accused), aff'd, 

236 Va. 1, 372 S.E.2d 134 (1988). These items, including the 

baggie of cocaine, were quickly retrieved by police under 

circumstances which clearly proved possession by defendant. See

Beverly v. Commonwealth, 12 Va. App. 160, 165, 403 S.E.2d 175, 
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177-78 (1991) (conviction for cocaine possession affirmed where 

accused, fleeing by automobile on a well traveled road, dropped 

object from window, and police immediately retrieved an undamaged 

package of cocaine). Accordingly, the evidence provided ample 

support for the conviction, and we affirm the decision of the 

trial court. 

 Affirmed.