COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judges Bumgardner and Felton 

Argued at Salem, Virginia 

JIMMY DALE ADKINS 

 MEMORANDUM OPINION* BY 

v. Record No. 3267-01-3 CHIEF JUDGE JOHANNA L. FITZPATRICK 

 OCTOBER 29, 2002 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE 

Joseph W. Milam, Jr., Judge 

 Robert W. Williams, Jr., Assistant Public 

Defender (S. Jane Chittom, Appellate 

Defender; Public Defender Commission, on 

brief), for appellant. 

 Eugene Murphy, Assistant Attorney General 

(Jerry W. Kilgore, Attorney General, on 

brief), for appellee. 

 Jimmy Dale Adkins (appellant) was convicted in a bench 

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

On appeal, he contends that the evidence was insufficient to 

prove he possessed the drugs that were found in clothing near 

him. For the following reasons, we affirm the judgment of the 

trial court. 

 

* Pursuant to Code § 17.1-413, this opinion is not 

designated for publication. 
I. BACKGROUND 

 Under familiar principles of appellate review, we examine the 

evidence in the light most favorable to the Commonwealth, the 

prevailing party below, granting to it all reasonable inferences 

fairly deducible therefrom. See Juares v. Commonwealth, 26 

Va. App. 154, 156, 493 S.E.2d 677, 678 (1997). 

 So viewed, the evidence established that on January 10, 

2001, at approximately 9:30 a.m., Deputy Sheriff Michael Hill 

(Hill), Deputy Sheriff Barry Breakley (Breakley) and Officer 

Christopher Tillman (Tillman) arrived at appellant's home to 

serve an emergency commitment order (ECO) obtained by 

appellant's mother earlier that morning. The officers found 

appellant naked and asleep on the living room couch. The 

officers were told that he slept with a knife and were concerned 

about his use of a weapon. There was a pile of male clothing on 

the floor next to the couch and close to appellant's head. 

There were no other clothes in the area. Hill explained that 

appellant had to go with the officers because they had an ECO, 

and appellant said, "Well, let me get some clothes on." 

Breakley testified 

When I told [appellant] to get up . . . that 

he had to go with me, I noticed he didn't 

have any clothes on, so I immediately 

reached down and picked up the clothes in 

front of him on the floor, and started to 

frisk 'em [sic] for to see [sic] if it was a 

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weapon in 'em [sic], before I gave 'em [sic] 

to him. 

Breakley found a vial in the shirt pocket that contained 13 

rocks of cocaine with a weight of 1.35 grams and smoking devices 

on the floor directly under the clothes. After the vial was 

removed, appellant dressed in the clothes. Appellant conceded 

that the clothes belonged to him. 

 Although appellant's mother left the home for a brief 

period to obtain the ECO and take her grandchildren to school, 

she testified that there "wasn't anybody [else] there that day." 

The trial court found the evidence proved the clothes and the 

drugs found in them belonged to appellant. 

I would agree that . . . the defendant never 

made an affirmative statement to the effect 

of "These clothes are mine." However, I 

think by his words and actions, he clearly 

established the clothes as belonging to him 

. . . . 

 Appellant appeals from that decision. 

II. STANDARD OF REVIEW 

 In reviewing the sufficiency of the evidence, "the judgment 

of the trial court sitting without a jury is entitled to the 

same weight as a jury verdict." Saunders v. Commonwealth, 242 

Va. 107, 113, 406 S.E.2d 39, 42, cert. denied, 502 U.S. 944 

(1991). 

 "[T]he trial court's judgment will not be set aside unless 

plainly wrong or without evidence to support it." Hunley v. 

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Commonwealth, 30 Va. App. 556, 559, 518 S.E.2d 347, 349 (1999). 

"The credibility of a witness and the inferences to be drawn 

from proven facts are matters solely for the fact finder's 

determination." Marable v. Commonwealth, 27 Va. App. 505, 

509-10, 500 S.E.2d 233, 235 (1998) (internal citation omitted). 

III. CONSTRUCTIVE POSSESSION 

 Appellant contends the trial court erred in finding the 

evidence sufficient to prove that he constructively possessed 

the drugs found in the clothing. Specifically, he argues that 

the evidence at trial failed to show that he was aware of the 

presence and character of the cocaine. We disagree. 

 "The Commonwealth may prove possession of a controlled 

substance by showing either actual or constructive possession." 

Barlow v. Commonwealth, 26 Va. App. 421, 429, 494 S.E.2d 901, 

904 (1998). 

 "To establish 'possession' in the legal sense, not only 

must the Commonwealth show actual or constructive possession of 

the drug by the defendant, it must also establish that the 

defendant intentionally and consciously possessed the drug with 

knowledge of its nature and character." Williams v. 

Commonwealth, 14 Va. App. 666, 669, 418 S.E.2d 346, 348 (1992) 

(internal citation omitted). 

To support a conviction based on 

constructive possession, the Commonwealth 

must point to evidence of acts, statements, 

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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. 

Glasco v. Commonwealth, 26 Va. App. 763, 774, 497 S.E.2d 150, 

155 (1998) (internal citation omitted). 

 "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." 

Burchette v. Commonwealth, 15 Va. App. 432, 434, 425 S.E.2d 81, 

83 (1992) (internal citations omitted). 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). 

Although mere proximity to drugs is 

insufficient to establish possession, it is 

a circumstance which may be probative in 

determining whether an accused possessed 

such drugs. Ownership or occupancy of the 

[location] in which drugs are found is 

likewise a circumstance probative of 

possession. In resolving this issue, the 

court must consider the totality of the 

circumstances disclosed by the evidence. 

Glasco, 26 Va. App. at 774, 497 S.E.2d at 155 (internal 

citations omitted). 

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 The circumstantial evidence clearly supports the trial 

court's findings that the clothes containing the drugs belonged 

to appellant and that he knew their nature and character. The 

clothing was found next to the couch where appellant was 

sleeping naked. It was the only clothing in the area. Once the 

cocaine was removed from the clothing, appellant dressed in the 

clothes and conceded at argument that the evidence established 

the clothes to be his. The fact that appellant made no 

statement about the drugs does not require the fact finder to 

disregard the other circumstantial evidence linking him to the 

drugs. His close proximity to the clothes containing the drugs; 

the smoking devices located under the clothes; the lack of any 

other male with access to the clothes or drugs were all properly 

considered by the trial court. For the foregoing reasons, we 

affirm the conviction. 

Affirmed. 

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