JUDGE LARRY G. ELDER.
Linwood B. Sawyer, Jr., (appellant) appeals from his bench trial conviction for possession of cocaine with intent to distribute. On appeal, he contests the sufficiency of the evidence to prove he possessed the cocaine at issue. We hold the evidence, viewed in the light most favorable to the Commonwealth, was sufficient to prove possession, and we affirm. Under familiar principles of appellate review, we must examine the evidence in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom. Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987). Appellant contests only the sufficiency of the evidence to prove he possessed the cocaine at issue. We hold the evidence was sufficient.
We do not consider the sufficiency of the evidence to prove appellant's possession of the cocaine, if established, was with the requisite intent to distribute.
In assessing witness credibility, the fact finder may accept the parts of a witness' testimony it finds believable and reject other parts as implausible. Pugliese v. Commonwealth, 16 Va. App. 82, 92, 428 S.E.2d 16, 24 (1993). "Determining the credibility of witnesses who give conflicting accounts is within the exclusive province of the [trier of fact], [who] has the unique opportunity to observe the demeanor of the witnesses as they testify." Lea v. Commonwealth, 16 Va. App. 300, 304, 429 S.E.2d 477, 479 (1993). Further, "[n]o litigant is bound by contradicted testimony of a witness even though proffered by the litigant." Williams v. Commonwealth, 235 Va. 168, 176, 360 S.E.2d 361, 366 (1987). "`[W]hen two or more witnesses introduced by a party litigant vary in their statements of fact, such party has the right to ask the court or jury to accept as true the statements most favorable to him.'" Ravenwood Towers, Inc. v. Woodyard, 244 Va. 51, 55, 419 S.E.2d 627, 629 (1992) (quoting Massie v. Firmstone, 134 Va. 450, 462, 114 S.E. 652, 656 (1922)). Compare Massie, 134 Va. at 462, 114 S.E. at 656 (noting that doctrine allowing party offering witnesses giving conflicting testimony to ask court to accept more favorable testimony is not applicable "to the testimony which [the litigant] gives himself" because "[n]o litigant can successfully ask a court or jury to believe that he has not told the truth") and Ford Motor Co. v. Bartholomew, 224 Va. 421, 431, 297 S.E.2d 675, 680 (1982) (holdingMassie doctrine preventing litigant from asking fact finder to disregard part of his own testimony applies only to "statement[s] of fact within [the litigant's] knowledge" and not to "expression[s] of opinion"). The conclusions of the fact finder on issues of witness credibility may be disturbed on appeal only if this Court finds that the testimony accepted by the court was "inherently incredible, or so contrary to human experience as to render it unworthy of belief." Fisher v. Commonwealth, 228 Va. 296, 299-300, 321 S.E.2d 202, 204 (1984).
"To convict a person of possession of illegal drugs `the Commonwealth must prove that the defendant was aware of the presence and character of the drugs and that he intentionally and consciously possessed them.'"Castaneda v. Commonwealth, 7 Va. App. 574, 583, 376 S.E.2d 82, 86 (1989) ( en banc) (quoting Andrews v. Commonwealth, 216 Va. 179, 182, 217 S.E.2d 812, 814 (1975)). Possession need not be actual, exclusive, or lengthy in order to support a conviction. Gillis v. Commonwealth, 215 Va. 298, 302, 208 S.E.2d 768, 771 (1974); Josephs v. Commonwealth, 10 Va. App. 87, 99, 390 S.E.2d 491, 497 (1990) ( en banc). Actual or constructive possession of illegal drugs may be proven by "`evidence of acts, statements, or conduct of the accused or other facts or circumstances which tend to show that the [accused] was aware of both the presence and character of the substance and that it was subject to his dominion and control.'" Burchette v. Commonwealth, 15 Va. App. 432, 434, 425 S.E.2d 81, 82 (1992) (quoting Drew v. Commonwealth, 230 Va. 471, 473, 338 S.E.2d 844, 845 (1986)). Neither close proximity to illegal drugs nor occupancy of an automobile in which they are found, standing alone, is sufficient to prove "possession" of such drugs; however, both are factors that may be considered in determining whether possession occurred in a particular case. Castaneda, 7 Va. App. at 583-84, 376 S.E.2d at 87. Circumstantial evidence may be sufficient to prove possession, as long as it excludes all reasonable hypotheses of innocence flowing from the evidence. Higginbotham v. Commonwealth, 216 Va. 349, 352-53, 218 S.E.2d 534, 537 (1975).
Where an individual being approached by police is seen "ma[king] a throwing motion under [a] vehicle," the police immediately recover drugs from beneath the vehicle, and no evidence establishes that any other items were found beneath the vehicle, the evidence is sufficient to permit the finder of fact to conclude that the individual seen making the throwing motion had actual possession of the drugs and threw them under the car to avoid being caught with them on his person. See Collins v. Commonwealth, 13 Va. App. 177, 179-80, 409 S.E.2d 175, 176 (1991). In the absence of evidence to the contrary, the finder of fact is entitled to infer that "cocaine [is] `something of significant value and not something that [someone other than the individual seen making the throwing motion] is likely to have abandoned or carelessly left in the area. . . .'" Id. at 180, 409 S.E.2d at 176.
Here, the evidence, viewed in the light most favorable to the Commonwealth, established that appellant had actual possession of the cocaine when the police arrived at the scene and that appellant then threw it beneath the car, where Detective K.J. Davis found it about fifteen seconds later. Both officers testified that appellant dropped numerous items as he got down from the trunk of the car, including a cigar box and a cellular telephone. Detective Davis testified without equivocation that he observed appellant go "over to the driver's side of the vehicle, ben[d] at the knees, and ma[k]e a throwing motion . . . towards the undercarriage of the vehicle." Detective Jones testified that he merely saw appellant drop some items "towards the back of the vehicle" and that Detective Davis was the one who actually recovered the items. Detective Davis testified that he found the cigar box on the driver's side rear of the car, the cellular telephone beside the driver's door, and the cocaine one to two feet underneath the car, near the front driver's side tire. The location of these items followed the path Detective Davis observed appellant take when appellant slid off the trunk of the vehicle.
Although Detective Davis did not see what appellant had in his hand when he made the throwing motion, Davis recovered the baggy of cocaine from beneath the vehicle only fifteen seconds after he observed appellant make the throwing motion. Other evidence established that the other two subjects at the scene, Joseph Pitt and Darryl Fuller, were not near the front of the vehicle; kept their hands up in the air and visible to Detective Timothy M. Jones at all times after Davis told them to put their hands up; and made no throwing, kicking or other types of motions that would imply either of them had discarded the drugs in the place where Davis found them beneath the vehicle. Finally, no evidence in the record established that the officers recovered anything else from beneath the vehicle. The only reasonable hypothesis flowing from this evidence, viewed in the light most favorable to the Commonwealth, is that appellant had actual possession of the cocaine when the police arrived at the scene and threw it beneath the car.
Given the manner in which the trier of fact resolved the disputed factual issues, appellant's contention that Detective Jones testified that appellant did not make a throwing or bowling motion and that the cocaine was found beside rather than beneath the car does not support a different result. First, Detective Jones's testimony, construed in the light most favorable to the Commonwealth, establishes only that Detective Jones tried to focus on appellant as he and Detective Davis approached the scene and that Detective Jones did not see appellant make the throwing motion observed by Detective Davis. Detective Jones testified that he could see Pitt's and Fuller's hands at all times during the encounter and that neither Pitt nor Fuller made any throwing motions. However, Detective Jones did not testify that he was able to see appellant's hands at all times during the encounter and said only that he "never saw [appellant] make any bending . . . [or] sweeping motion with his hands." (Emphasis added). In light of evidence that Detective Jones was able to see Pitt's and Fuller's hands during the entire encounter and Detective Davis's testimony that all three men moved from their original positions during the encounter as appellant reached into his jacket, causing the officers to fear he might have a gun, the trial court was entitled to conclude that Detective Jones was temporarily distracted from his efforts to focus only on appellant or was simply not in a position to be physically able to see all of appellant's movements observed by Detective Davis. The trial court was also entitled to accept Detective Jones's trial testimony that Detective Davis actually recovered the cocaine and, thus, to conclude that Davis was in a better position than Jones to give accurate testimony about where the cocaine was found.
Contrary to the representations of the dissent, the evidence, viewed in the light most favorable to the Commonwealth, does not establish that, Detective Jones "concentrated" on appellant "from the moment he left his vehicle to approach" appellant and that, "when [Detective Jones] pulled his shirt apart to reach his firearm, [appellant] raised his hands." Rather, Detective Jones testified that, when he saw appellant reach his hand into his jacket, Jones "pulled his [own] shirt apart to reach [his] firearm" and that appellant put his hands up only "[a]fter [appellant] went into his jacket and took the items out." This is consistent with Detective Davis's testimony that appellant did not immediately respond to Davis's commands to put his hands up and get down and that appellant was "still trying to get whatever it was out of the jacket area."
Second, even if the court interpreted Detective Jones's testimony as an unequivocal statement that appellant did not make a throwing motion, the trial court, as the finder of fact, was entitled to reject Detective Jones's testimony to the extent it conflicted with Detective Davis's testimony. See, e.g., Woodyard, 244 Va. at 55, 419 S.E.2d at 629;Williams, 235 Va. at 176, 360 S.E.2d at 366; Massie, 134 Va. at 462, 114 S.E. at 656. The testimony of a witness such as Detective Davis is not rendered "inherently incredible, or so contrary to human experience as to render it unworthy of belief," Fisher, 228 Va. at 299-300, 321 S.E.2d at 204, simply because it conflicts with the testimony of a second witness such as Detective Jones, called by the same party. Appellant's counsel admitted as much when, in response to a question from the court at trial, he agreed that "[t]he Court can pick and choose" "as to credibility."
Finally, the trial court's statement that the officers' testimony was "[e]ssentially . . . consistent" also does not require a different result. The trial court heard extensive argument from the parties on the purported consistencies and inconsistencies in the two officers' testimony. In explaining its reasoning, the court noted it "is often the case [that] witnesses take different positions in the happening of any incident," and it expressly adopted the testimony of Detective Davis as "prov[ing] beyond any doubt" that appellant possessed the cocaine. Again, because Detective Davis's testimony was not inherently incredible, we may not set aside the trial court's express finding of fact on this issue.
Contrary to the position taken by the dissent, the Virginia Supreme Court has never held that the prosecution's presentation of "two different accounts of the essential facts relating to a crucial element of the crime," standing alone, prevents a finding of guilt beyond a reasonable doubt. The case the dissent relies on for this proposition,Moore v. Commonwealth, 254 Va. 184, 491 S.E.2d 739 (1997), involved a rape prosecution in which a single witness, the victim, gave conflicting testimony about the crime on direct examination. In that context, the Court held as follows:
This is not a case where inconsistencies have been developed during cross-examination of the victim or a case where there has been other evidence contradicting the testimony of the victim. Certainly, those types of credibility issues are for the [fact finder] to decide. But, this is a case where the prosecution has presented,
from the mouth of the victim, two different accounts of the essential facts relating to a crucial element of the crime. . . . [Under these circumstances,] the Commonwealth's evidence is consistent with the innocence of the accused regarding the crime with which he was charged.
Id. at 189, 491 S.E.2d at 742 (emphasis added).
Appellant's case involved the testimony not of one victim but of two different police officers. The Supreme Court's decision in Moore does not alter the general principle set out in the text that, "`when two or more witnesses introduced by a party litigant vary in their statements of fact, such party has the right to ask the court or jury to accept as true the statements most favorable to him.'" Woodyard, 244 Va. at 55, 419 S.E.2d at 629 (quoting Massie, 134 Va. at 462, 114 S.E. at 656).
For these reasons, we hold the facts, as found by the trial court, were sufficient to prove beyond a reasonable doubt that appellant possessed the cocaine at issue. Thus, we affirm appellant's conviction for possession with intent to distribute.
Affirmed.