COURT OF APPEALS OF VIRGINIA 

Present: Judges Frank, Clements and Felton 

Argued at Chesapeake, Virginia 

TYRONE PHILMORE 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 contends the evidence was 

insufficient to convict him of the drugs found in the glove compartment. For the reasons stated, we 

affirm his conviction. 

BACKGROUND

 Portsmouth police officers stopped a vehicle driven by appellant and asked him for 

identification. The only other passenger in the vehicle was a young child “under ten.” Appellant 

produced a picture identification belonging 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 opinion is not designated for publication. 
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arrest revealed a small baggie of crack cocaine in appellant’s front watch pocket, weighing 2.252 

grams. 

 In the glove box of the vehicle, 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 dollar bills, from appellant’s right front shirt pocket, and $73 from his 

pants pocket. No apparatus to ingest cocaine was discovered. 

 Detective Holley of the Portsmouth Police Department, who qualified as an expert in the 

sale, packaging, and distribution of narcotics in the City of Portsmouth, testified that the evidence 

was inconsistent with personal use of the cocaine. 

 Lawrence Clark, an employee of Harsley and Harsley Enterprises, owned by appellant and 

his brother, testified on behalf of appellant that the vehicle in which the 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 Tony 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 contest his possession of the crack cocaine found on his person, he 

contends the evidence was not sufficient to convict 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 evidence of acts, statements, or 

conduct of the accused or other facts or circumstances which tend 

 1

 Appellant does not challenge that if he possessed those drugs, it was with the intent to 

distribute. 
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to show that the [appellant] was aware of both the presence and 

character of the substance and that 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 circumstances disclosed by the evidence.” 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 circumstance is probative in determining whether an accused possessed 

the drugs. Lane v. Commonwealth, 223 Va. 713, 716, 292 S.E.2d 358, 360 (1982). Also, 

“occupancy of the vehicle in which the drugs are found is likewise a circumstance probative of 

possession.” Glasco v. Commonwealth, 26 Va. App. 763, 774, 497 S.E.2d 150, 155 (1998), aff’d, 

257 Va. 433, 513 S.E.2d 137 (1999). 

 Significantly, appellant possessed a small amount of crack cocaine on his person. From this, 

the fact finder could properly infer that appellant was aware of the presence and character of the 

drugs found in the glove compartment. See Wymer v. Commonwealth, 12 Va. App. 294, 301, 403 

S.E.2d 702, 707 (1991) (“The bent straw with cocaine residue found in her purse along with the 

paraphernalia used to consume marijuana are sufficiently related to the items found in or on 

appellant’s dresser and are additional facts which permitted the fact finder to infer that appellant 

knew of the presence of cocaine.”). 

 We cannot ignore that the cocaine found in the glove compartment 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 abandoned or carelessly left in the area there.’” It is unlikely that someone 

other than appellant left $2,850 worth of cocaine in the vehicle. 
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 While appellant’s witness testified 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 inferences to be drawn from 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 other employees of the company had access to the vehicle and could 

have placed the drugs in the glove compartment. 

Circumstantial evidence may establish the elements of a crime, 

provided it excludes every reasonable 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 Commonwealth 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 evidence to support [appellant’s] 

hypothesis of innocence but, rather, whether a reasonable fact 

finder, upon consideration of all the 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 Hancock v. Commonwealth, 21 Va. App. 466, 465 S.E.2d 138 (1995), to 

support his position. His reliance is misplaced because the facts in Hancock are significantly 

different. In Hancock, this Court reversed the conviction, finding that the trial judge 

misunderstood the requisite mental state when he ruled that the 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, other than proximity, nothing linked the appellant to the gun. Id. at 
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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 appellant of possession with intent to distribute 

crack cocaine, we affirm his conviction. 

Affirmed.