COURT OF APPEALS OF VIRGINIA 

Present: Judges Baker, Bray and Senior Judge Hodges 

Argued at Norfolk, Virginia 

WAVERLY G. HAWKINS 

 MEMORANDUM OPINION* BY 

v. Record No. 2402-95-1 JUDGE RICHARD S. BRAY 

 NOVEMBER 5, 1996 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF SUFFOLK 

Rodham T. Delk, Jr., Judge 

 John C. Lauterbach, Jr. (James L. Grandfield, 

Assistant Public Defender, on brief), for 

appellant. 

 Steven A. Witmer, Assistant Attorney General 

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

brief), for appellee. 

 Waverly G. Hawkins (defendant) was convicted in a jury trial 

for possession of cocaine and, on appeal, challenges the 

sufficiency of the evidence. We affirm the conviction. 

 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. Traverso v. Commonwealth, 6 Va. App. 172, 176, 366 

S.E.2d 719, 721 (1988). The jury's verdict will not be disturbed 

unless plainly wrong or without evidence to support it. Id. The 

credibility of a witness, the weight accorded the testimony, and 

the inferences to be drawn from proven facts are matters solely 

for the fact finder's determination. Long v. Commonwealth, 8 Va. 

 

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

designated for publication. 
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App. 194, 199, 379 S.E.2d 473, 476 (1989). 

 The parties are fully conversant with the record, and this 

memorandum opinion recites only those facts necessary to a 

disposition of the appeal. 

 While on routine patrol, Officer Vidrine observed an 

unlighted truck parked in a roadway. As Vidrine's vehicle 

neared, he saw the passenger, defendant, "ben[d] down into the 

floorboard," "immediately [sit] up . . . back in the seat" and 

toss "some papers . . . out the passenger's side window." 

Further investigation disclosed an empty cigarette pack, several 

"books of matches," "a couple of burnt matches," and a "piece of 

screen" on the ground beneath the passenger window of the truck. 

 Looking inside, Vidrine observed numerous additional "burnt 

matches" on the passenger side of the truck floorboard and "white 

crumbs" in defendant's lap. As a result of his training and 

experience, Vidrine recognized the screen and burned matches as 

"indicative of drug usage" and suspected the "crumbs" were crack 

cocaine. 

 At Vidrine's request, defendant exited the truck, and 

Vidrine noticed a small white "rocklike" substance of suspected 

crack cocaine on the passenger seat. A search of defendant's 

person disclosed more "crumbs of the same type of substance in 

[defendant's] left front trouser pocket." Under the passenger 

seat, Vidrine found an item which he identified as a crack 

smoking device, including a screen and wire mesh, and subsequent 
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laboratory analysis confirmed the presence of cocaine residue on 

the pipe. 

 [P]ossession 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) (citation omitted) (quoting Drew v. Commonwealth, 230 Va. 

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

is sufficient to support a conviction provided it excludes every 

reasonable hypothesis of innocence. Tucker v. Commonwealth, 18 

Va. App. 141, 143, 442 S.E.2d 419, 420 (1994); see McGee, 4 Va. 

App. at 322, 357 S.E.2d at 740; Johnson v. Commonwealth, 2 Va. 

App. 598, 604-05, 347 S.E.2d 163, 167 (1986). Although 

defendant's mere proximity to drugs is insufficient to establish 

possession, Code § 18.2-250, it is a fact which may be considered 

in resolving the issue. See Lane v. Commonwealth, 223 Va. 713, 

716, 292 S.E.2d 358, 360 (1982); Brown v. Commonwealth, 15 Va. 

App. 1, 9, 421 S.E.2d 877, 882-83 (1992) (en banc). 

 Here, defendant was a passenger in a darkened truck parked 

in the road. Officer Vidrine initially observed defendant in a 

bending position but, when Vidrine's headlights illuminated the 

truck, he immediately arose and discarded several items from the 

window, including matchbooks, burned matches and a screen, all 
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items related to cocaine use. Vidrine found additional burned 

matches on the passenger floorboard of the truck and white 

"crumbs" resembling crack cocaine in defendant's lap, in his 

pants pocket and on the passenger seat. A crack pipe found 

beneath the passenger seat tested positive for cocaine residue. 

Such evidence provided ample support for the court's conclusion 

that defendant constructively possessed cocaine, aware of the 

nature and character of the illicit substance. 

 Defendant's reliance on Jones v. Commonwealth, 17 Va. App. 

572, 439 S.E.2d 863 (1994), and Scruggs v. Commonwealth, 19 Va. 

App. 58, 448 S.E.2d 663 (1994), is misplaced. In Jones, 

defendant was a passenger in an automobile with five small rocks 

of cocaine on a tray located between the passenger and driver 

seats and cocaine residue on a soda can beneath the passenger's 

seat. Thus, the only evidence incriminating Jones was his 

proximity to the drugs, clearly insufficient to support a 

conviction. 17 Va. App. at 574, 439 S.E.2d at 864. In Scruggs, 

the police found cocaine secreted within a tear in the passenger 

seat of his vehicle, also occupied by another person, and Scruggs 

in actual possession of cash and a firearm. 19 Va. App. at 

59-60, 448 S.E.2d at 664. In reversing the conviction, the Court 

recognized that Scruggs' possession of these items was probative 

of an intent to distribute, but reasoned that "circumstantial 

proof of Scruggs' intent [could not] be used to 'bootstrap' proof 

of the predicate fact that he actually or constructively 
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possessed cocaine." Id. at 62, 448 S.E.2d at 665. Manifestly, 

the conviction in this instance is supported by additional 

substantive evidence. 

 Accordingly, we affirm the decision of the trial court. 

 Affirmed.