COURT OF APPEALS OF VIRGINIA
Present: Judges Fran k, Clements and Felton Argued at Chesapeake, Virginia

TYRONE PHILMO RE HARSLEY MEMORANDUM OPINION * BY v. Record No. 0783-05-1 JUDGE ROBERT P. FRANK MARCH 7, 2006 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH Dean W. Sword, Jr., Judge Von L. Piersall, III, for appellant. Denise C. Anderson, Assistant Attorney General (Judith Williams Jagdmann, Attorney General, on brief), for appellee.
Tyrone P. Harsley, appellant, was convicted, in a bench trial, of possession of cocaine with the intent to distribute, in violation of Code § 18 .2-248. On appeal, he c ontends the evidence was insufficient to convict him of the drugs found in th e glove compartment. Fo r the reasons stated, we affirm his conviction.
BACKGROUND Portsmouth police officers stopped a vehi cle driven by appellant and asked him for identification. The only other passenger in the ve hicle was a young child “ under ten.” Appellant produced a picture identification belong ing to his brother, Fenton Harsley. After further questioning by the officer, appellant stated that he was in fact Tyrone Harsley. There was an outstanding warrant for appellant, and he was taken into custody. A search incident to

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.- 2 - arrest revealed a small baggie of crack cocaine in appellant’s fr ont watch pocket, weighing 2.252
grams. In the glove box of the vehicl e, the officers recovered 26.395 grams of crack cocaine having a street value of $2,850. The police also recovered a cell phone from appellant’s person, $500 cash, consisting of ten (10) fifty dolla r bills, from appellant’ s right front shirt pocke t, and $73 from his pants pocket. No apparatus to ingest cocaine was discovered. Detective Holley of the Portsm outh Police Department, who qualified as an expert in the sale, packaging, and distribution of narcotics in th e City of Portsmouth, test ified that the evidence was inconsistent with personal use of the cocaine. Lawrence Clark, an employee of Harsley an d Harsley Enterprises, owned by appellant and his brother, testified on behalf of appellant that the vehicle in which th e drugs were found was a company vehicle. On the day of the offense, a co-employee by the name of Tony drove that vehicle to pick up other employees for work. He saw T ony place a plastic bag in the glove compartment “with some white stuff in it.” He also saw the owner of a store give appellant money to purchase building materials.
ANALYSIS While appellant does not contes t his possession of the crack co caine found on his person, he contends the evidence was not sufficient to conv ict him of possession of the crack found in the glove compartment. 1 Possession of a controlled substance may be actual or constructive. Archer v. Commonwealth , 225 Va. 416, 418, 303 S. E.2d 863, 863 (1983). To support a conviction based upon constructive possession, “the Commonwealth must point to evid ence of acts, statements, or conduct of the accused or other fa cts or circumstances which tend

1 Appellant does not challenge that if he po ssessed those drugs, it was with the intent to distribute.- 3 - to show that the [appellant] wa s aware of both the presence and character of the substance and th at it was subject to his dominion and control.” Drew v. Commonwealth , 230 Va. 471, 473, 338 S.E.2d 844, 845 (1986) (quoting Powers v. Commonwealth , 227 Va. 474, 476, 316 S.E.2d 739, 740 (1984)). Thus, in resolving this issue, we must consider “the totality of the circumstan ces disclosed by the ev idence.” Womack v. Commonwealth , 220 Va. 5, 8, 255 S. E.2d 351, 353 (1979). Appellant correctly states that mere proximity to the drugs is not, in itself, sufficient to convict. However, such a circ umstance is probative in determin ing whether an ac cused possessed the drugs. Lane v. Commonwealth , 223 Va. 713, 716, 292 S.E.2d 358, 360 (1982). Also, “occupancy of the vehicl e in which the drugs are found is likewise a circumstance probative of possession.” Glasco v. Commonwealth , 26 Va. App. 763, 77 4, 497 S.E.2d 150, 155 (1998), aff’d , 257 Va. 433, 513 S. E.2d 137 (1999). Significantly, appellant possesse d a small amount of cr ack cocaine on his pe rson. From this, the fact finder could properly infe r that appellant was aware of th e presence and character of the drugs found in the glov e compartment. See Wymer v. Commonwealth , 12 Va. App. 294, 301, 403 S.E.2d 702, 707 (1991) (“The bent straw with cocaine residu e found in her purse along with the paraphernalia used to consume marijuana are suffi ciently related to the items found in or on appellant’s dresser and ar e additional facts wh ich permitted the fact finder to infer that appellant knew of the presence of cocaine.”). We cannot ignore that the co caine found in the glove compartm ent was valued at $2,850. In
Collins v. Commonwealth , 13 Va. App. 177, 180, 409 S.E.2d 175, 176 (1991) (quoting the trial court), we acknowledged that such amounts are “‘ something of significant value and not something that one is likely to have abandone d or carelessly left in the area ther e.’” It is unli kely that someone other than appellant le ft $2,850 worth of co caine in the vehicle.- 4 - While appellant’s witness testif ied he saw another person put a plastic bag “with some white stuff in it” in the glove compartment, the fact finder clearly rejected that testimony. “Witness credibility, the weight accorded the testimony and the infere nces to be drawn fr om proven facts are matters to be determined by the fact finder.” Foster v. Commonwealth , 38 Va. App. 549, 554, 567 S.E.2d 547, 549 (2002). Appellant contends that othe r employees of the co mpany had access to th e vehicle and could have placed the drugs in the glove compartment. Circumstantial evidence may establish the elements of a crime, provided it excludes every reasona ble hypothesis of innocence. Tucker v. Commonwealth , 18 Va. App. 141, 143, 442 S.E.2d 419, 420 (1994). “The statement that circumstantial evidence must exclude every reasonable theory of innocence is simply another way of stating that the Commonw ealth has the burden of proof beyond a reasonable doubt.” Commonwealth v. Hudson , 265 Va. 505, 513, 578 S.E.2d 781, 785 (2003). This Court must determine not whether there is some ev idence to support [appellant’s] hypothesis of innocence but, rather , whether a reasonable fact finder, upon consideration of all th e evidence, could have rejected appellant’s theories and found him guilty beyond a reasonable doubt. See Correll v. Commonwealth , 42 Va. App. 311, 327, 591 S.E.2d 712, 721 (2004). Whether a hypothesis of innocence is reasonable is a question of fact. Id. Corbin v. Commonwealth , 44 Va. App. 196, 202-03, 604 S.E.2d 111, 114 (2004). We find that the fact finder properly rejected appellant’s hypothesis of innocence. Appellant cites Ha ncock v. Commonwealth , 21 Va. App. 466, 465 S.E.2d 138 (1995), to support his position. His reliance is misp laced because the facts in Hancock are significantly different. In Hancock , this Court reversed the convict ion, finding that the trial judge misunderstood the requisite mental state wh en he ruled that th e defendant did not actually know, but “should have known,” that a weapon was under his feet. Id. at 469, 465 S.E.2d at 140. This Court further concluded that, ot her than proximity, nothing linked the appellant to the gun. Id. at- 5 - 472, 465 S.E.2d at 141. The facts in the instant case , as discussed above, prove much more than close proximity. Finding the evidence sufficient to convict appe llant of possession with intent to distribute crack cocaine, we affirm his conviction. Affirmed.