COURT OF APPEALS OF VIRGINIA 

Present: Judges Baker, Annunziata and Overton 

Argued at Norfolk, Virginia 

RONALD WAYNE BRINKLEY 

 MEMORANDUM OPINION* BY 

v. Record No. 1895-96-1 JUDGE NELSON T. OVERTON 

 JULY 22, 1997 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH 

Kenneth N. Whitehurst, Jr., Judge 

 Lynndolyn T. Mitchell, Assistant Public 

Defender (Andrew G. Wiggin; Office of the 

Public Defender, on brief), for appellant. 

 Daniel J. Munroe, Assistant Attorney General 

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

brief), for appellee. 

 Following a bench trial, appellant, Ronald Wayne Brinkley, 

was convicted of possession of cocaine in violation of Code 

§ 18.2-250. He contends the evidence is insufficient to support 

his conviction. We disagree and affirm. 

 I. 

 Officer Summerall stopped a small Dodge Omni with bucket 

seats for a minor traffic infraction. Appellant was driving the 

vehicle; another individual occupied the car's passenger seat. 

Appellant agreed to Summerall's request to search him and the 

vehicle. Summerall conducted a pat-down search of appellant but 

found nothing incriminating. As Summerall searched appellant, 

she attempted to watch the passenger, who remained in appellant's 

 

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

designated for publication. 
 2 

 

car. During this time, Summerall did not see the passenger move. 

 For "safety purposes," Summerall then placed appellant in her 

patrol car. Some other "assisting" officers were present at the 

scene and stood between Summerall's patrol car and appellant's 

vehicle, within fifteen feet of the passenger. Summerall 

returned to appellant's car, removed the passenger and searched 

him, but she found nothing incriminating. 

 Summerall then searched appellant's car. She recovered a 

silver, cylindrical object under the driver's seat, closer to the 

driver's door than to the center console. The object appeared to 

Summerall to be a crack pipe; she took it to appellant and asked 

if he knew what it was. Appellant stated that the object was a 

crack pipe. Summerall arrested appellant for possession of 

cocaine.1

 Summerall acknowledged that it would have been 

possible for the passenger to have slipped the pipe between the 

seat and the center console while she searched appellant. She 

questioned the plausibility of such a theory, however, 

reiterating that she found the device on the driver's door side 

of the floorboard. She stated that the car was clean and that 

she found nothing on top of the pipe. 

 Appellant acknowledged at trial that he was a former drug 

user but maintained the crack pipe was not his and that he was 

unaware of its presence in the car. Appellant also testified 

that the passenger "does" drugs. Appellant testified that 

 1The object later proved to contain a residual of cocaine. 
 3 

Summerall had asked him whether the crack pipe was his and that 

he responded it was not. Summerall testified that she did not 

ask appellant whether the crack pipe was his and that appellant 

did not deny ownership. 

 The trial court found that appellant constructively 

possessed the crack pipe. In so finding, the court rejected the 

hypothesis that the passenger could have discarded the crack pipe 

where it was found. Specifically, the court stated, "[the crack 

pipe was found] under the . . . driver's seat over at the door. 

It would have been very difficult for anybody else to get [it] 

there and put [it] under there." 

 II. 

 When considering the sufficiency of the evidence on appeal 

in a criminal case, this Court views the evidence in a light most 

favorable to the Commonwealth, granting to it all reasonable 

inferences fairly deducible therefrom. See Higginbotham v. 

Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975). In 

so doing, we must discard the evidence of the accused in conflict 

with that of the Commonwealth, and regard as true all the 

credible evidence favorable to the Commonwealth and all fair 

inferences that may be drawn therefrom. See Cirios v. 

Commonwealth, 7 Va. App. 292, 295, 373 S.E.2d 164, 165 (1988). 

The trial court's judgment will not be set aside unless it 

appears that the judgment is plainly wrong or without evidence to 

support it. See Code § 8.01-680; Josephs v. Commonwealth, 10 Va. 
 4 

App. 87, 99, 390 S.E.2d 491, 497 (1990) (en banc). 

 "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 [contraband] 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)). While mere proximity to the drugs is 

insufficient to establish possession, close proximity and 

ownership of the vehicle are circumstances which may tend to 

prove that the accused knows of the presence and character of the 

contraband. See Burchette v. Commonwealth, 15 Va. 432, 435, 425 

S.E.2d 81, 83-84 (1992). 

 The pipe in this case was found under the driver's seat of 

the defendant's small car. When he was asked whether he knew 

what it was, he answered that it was a crack pipe, demonstrating 

that he was aware of the character of the contraband. The 

location — immediately under the driver's seat, uncovered, in a 

very clean car — combined with the defendant's statement at trial 

that he had done drugs with the passenger in the past provide 

evidence that supports the trial judge's conclusion that the 

defendant knew of the presence of the contraband as well. 

 Although in a circumstantial evidence case the Commonwealth 

must exclude every reasonable hypothesis of innocence, the 

Commonwealth is "not required to prove that there is no 
 5 

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) (alteration in original). 

Whether an alternative hypothesis is a "reasonable hypothesis of 

innocence" is a question of fact, see Cantrell v. Commonwealth, 7 

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

on appeal unless it is plainly wrong or without evidence to 

support it. See, e.g., Naulty v. Commonwealth, 2 Va. App. 523, 

527, 346 S.E.2d 540, 542 (1986). 

 The trial judge, after hearing all of the testimony and 

observing all of the witnesses, found no reasonable hypothesis of 

innocence, concluding that "[i]t would have been very difficult 

for anybody else to get them there and put them under there." 

The record supports this conclusion. 

 Appellant places emphasis on the other occupant of the 

vehicle and claims that he may have put the contraband where it 

was found. To bolster his claim, he points to the evidence that 

the passenger has had prior contact with the police over 

narcotics and that the passenger uses drugs. The testimony at 

trial also disclosed, however, that the passenger, unlike the 

defendant, had no prior record and that the defendant himself has 

had prior contact with the police over narcotics. 

 The testimony at trial casts further doubt upon the 

defendant's theory. The officer testified that she did not see 
 6 

the passenger move. She also stated that "in order for him to 

put the crack pipe underneath the front seat, he would have had 

to reach all the way over and underneath the seat to have done 

that." When asked on cross-examination whether the passenger 

would have had to necessarily put his hands all the way over, she 

replied that he would have, in order to get it to the location it 

was found "all the way closer to the driver's side door." 

 The defendant did not argue at trial that the pipe could 

have rolled across the floorboard. Absolutely no evidence was 

presented as to whether, because of the car's position, the 

surface of the floorboard, or the physical characteristics of the 

pipe,2

 it was even possible for the pipe to roll. Counsel for 

the defense argued in closing that the passenger could have 

thrown the pipe, but did not attempt to develop a theory that the 

passenger somehow rolled the pipe under the driver's seat and 

across the floorboard. Without argument or evidence, the trial 

judge properly decided that this was not a reasonable hypothesis 

of innocence which the Commonwealth was required to exclude. 

 Accordingly, the conviction is affirmed. 

 Affirmed.

 

 2The pipe was not admitted into evidence and was described 

merely as a "silver cylinder." 
 7 

Annunziata, J., dissenting. 

 In my opinion, the evidence in the present case is 

insufficient to support appellant's conviction beyond a 

reasonable doubt to the exclusion of all reasonable hypotheses of 

innocence. Specifically, the evidence does not support the trial 

court's finding that it would have been "very difficult" for the 

passenger to have discarded the crack pipe where it was found 

under appellant's seat. The evidence shows that the passenger, a 

drug user, was left alone inside the vehicle while Officer 

Summerall searched appellant and placed him in her patrol car. 

Although the evidence supports the finding that the passenger 

would not have been able to discard the crack pipe while 

Summerall searched appellant, the evidence fails to account for 

the opportunity the passenger had to dispose of the crack pipe 

within the passenger compartment while Summerall placed appellant 

in her patrol car. The Commonwealth's attempt to fill this 

significant gap with Summerall's testimony concerning the 

presence of other officers in the area is insufficient. The 

evidence does not establish who these officers were or what, if 

anything, they saw. 

 In sum, I believe the evidence fails to exclude the 

reasonable hypothesis that the passenger discarded the crack pipe 

while Summerall was placing appellant in her patrol car. See, 

e.g., Price v. Commonwealth, 18 Va. App. 760, 767, 446 S.E.2d 

642, 646 (1994). I respectfully dissent.