                   COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Moon, Judge Coleman and Senior Judge Cole
Argued at Richmond, Virginia


DERRICK S. HINES
                                          MEMORANDUM OPINION * BY
v.        Record No. 1086-95-2             JUDGE MARVIN F. COLE
                                             OCTOBER 22, 1996
COMMONWEALTH OF VIRGINIA


         FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                    James B. Wilkinson, Judge
          Gary R. Hershner (Morrissey, Hershner &
          Jacobs, on brief), for appellant.

          Kathleen B. Martin, Assistant Attorney
          General (James S. Gilmore, III, Attorney
          General, on brief), for appellee.




     Derrick S. Hines was convicted in a bench trial of two

counts of possession of heroin with intent to distribute and one

count of possession of a firearm while in possession of heroin.

Hines contends: (1) the trial court erred by admitting into

evidence his post-arrest statement to the police regarding

unrelated offenses; and (2) the evidence is insufficient to

sustain the convictions.   We find no error and affirm appellant's

convictions.

     On June 24, 1994, members of the Richmond Police Department

executed a search warrant at a house located at 1124 North 31st

Street in Richmond.   The officers found 190 glassine bags of

heroin totaling 11.79 grams in an upstairs bedroom, and 30
     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
glassine bags of heroin totaling 1.8 grams in a Seven-Up can

found in a window sill in the first floor hallway.   The police

found $120 in cash, a handgun, two magazines for the gun, and a

box of ammunition on the mantel in the downstairs bedroom.    The

house was locked and contained some furniture, but there was no

electricity, telephone, or clothing in the house, and it was

unoccupied at the time of the search.

     A search for fingerprints on the seized items revealed a

palm print on one handgun magazine and four latent fingerprints

on four of the 190 glassine bags of heroin found in the upstairs

bedroom.   The fingerprint analysis determined that the palm print

and two of the fingerprints were from appellant.
     On July 22, 1994, the police executed a search warrant at a

house located at 1114 North 31st Street in Richmond.   Although

the front door of the house was locked, the back door was pushed

in and two upstairs windows were open.   The police determined

that the house was abandoned.   They searched the house and found

310 bags of heroin totaling 12.28 grams, 24.67 grams of cocaine,

and two shotguns.   Six latent fingerprints were lifted from the

bags of heroin:   one of the prints was from the defendant; two

were from the codefendant, Lillian Thorpe, who lived next door;

and three were unidentified.

     Officer M. E. Ambrozy arrested appellant on December 29,

1994, at which time appellant made the following statement:
          Officer:       Do you or have you sold any
                         heroin?




                                - 2 -
          Hines:         No I haven't.

          Officer:       Have you had heroin in your
                         possession?

          Hines:         Yes sir I, I have.

          Officer:       How much?

          Hines:         About five bundles.

          Officer:       When was that?

          Hines:         A couple of months ago.

          Officer:       How about in the summer?
          Hines:         I can't really say.

          Officer:       When was the last time you
                         brought heroin back with you
                         from New York?

          Hines:         3-4 months ago.

          Officer:       How long have you been selling
                         heroin for?

          Hines:         For as long as I needed some $.

          Officer:       When did you start moving heroin?

          Hines:         3-4 months back.

          Officer:       How did we get your fingerprint
                         back in the summer?

          Hines:         I'm not sure.



     The first issue is whether Hines' post-arrest statement to

Officer Ambrozy on December 29, 1994 was admissible evidence.

When the Commonwealth attempted to introduce the statement

through the testimony of Officer Schnuup, appellant objected to

its admissibility for the following reason:
          The statement was taken in December of last



                              - 3 -
          year when Mr. Hines was arrested. I don't
          believe it's relevant. It does not at all
          refer to the incident on June the 24th and
          the address 1114 North 31st. It is merely a
          general statement about his activity with
          drugs. I think it's more prejudicial than
          probative in this case. It doesn't relate to
          this case. [The Commonwealth's Attorney] is
          going to want it to relate to the case and
          say it goes toward his intent. However, it
          does not. Officer Schnuup does not ask him
          about the date in question. He does not ask
          him about the house or the drugs found on
          that date. I just think it's not relative
          [sic] and it's more prejudicial to Mr. Hines
          than it is probative to the Commonwealth's
          case.

     Later, when the Commonwealth attempted to introduce the

statement through Officer Ambrozy, appellant objected to its

admissibility as follows:
          Whether he was in possession at one point in
          time of heroin is not relevant to whether he
          was in possession of heroin on June 24th or
          July 22nd. I think the statement is very
          prejudicial in that he does admit to selling
          heroin in the past but it does not put it on
          those dates in question. Whether he sold
          heroin every single day of his life in the
          past is not relevant to whether he possessed
          it on those dates. The Commonwealth has to
          prove he was in possession of those drugs on
          that date. The statement does not go toward
          that issue in the least bit.


     The trial judge admitted the statement in evidence, and the

appellant's objection was noted.   He stated that the reason he

admitted the statement was because of its relationship with the

fingerprints found on the drugs.

     First, we shall address the question of the relevance of the

post-arrest statement given by appellant to the police.   "'Any




                              - 4 -
fact, however remote, that tends to establish the probability or

improbability of a fact in issue is [relevant and] admissible.'"

 Wynn v. Commonwealth, 5 Va. App. 283, 291, 362 S.E.2d 193, 198

(1987) (quoting Horne v. Milgrim, 226 Va. 133, 139, 306 S.E.2d

893, 896 (1983)).
          [R]elevant evidence is any evidence "which
          may throw light upon the matter being
          investigated, and while a single
          circumstance, standing alone, may appear to
          be entirely immaterial or irrelevant, it
          frequently happens that the combined force of
          many concurrent and related circumstances,
          each insufficient in itself, may lead a
          reasonable mind irresistibly to a
          conclusion."

Hope v. Commonwealth, 10 Va. App. 381, 386, 392 S.E.2d 830, 833

(1990) (en banc) (quoting Peoples v. Commonwealth, 147 Va. 692,

704, 137 S.E. 603, 606 (1927)).

     Appellant was tried upon two indictments which alleged that

he possessed heroin with the intent to distribute it.      The

Commonwealth was required to prove that he "intentionally and

consciously possessed" the drug, either actually or

constructively, with knowledge of its nature and character,

together with the intent to distribute it.    Josephs v.

Commonwealth, 10 Va. App. 87, 99-102, 390 S.E.2d 491, 497-99

(1990) (en banc).    Constructive possession may be shown by a

defendant's acts, declarations or conduct which support the

inference that the contraband was "subject to his dominion and

control."   Id.   Appellant was also tried upon an indictment

charging him with possessing a firearm while in possession of



                                - 5 -
heroin with the intent to distribute.

     Appellant contends that his statement implicates him in

other "wholly unrelated" crimes of purchasing and possessing

heroin and transporting it to Virginia three or four months

before his arrest on December 29, 1994.   He argues that his prior

drug activity was not proven to have any relation to the heroin

found in June and July in the abandoned houses.

     The Commonwealth proved that on June 24, 1994, someone

possessed a stash of heroin at 1124 North 31st Street in Richmond

with intent to distribute it.   It also proved that on July 22,

1994, at 1114 North 31st Street in Richmond, only a short

distance from 1124 North 31st Street, someone possessed another

stash of heroin with intent to distribute it.   The primary

question is whether the Commonwealth proved that appellant was

the criminal agent in either or both instances.   To prove that

appellant was the criminal agent, the Commonwealth relied upon

the evidence that appellant's fingerprints were found upon the

contraband at both locations.   The Commonwealth asserts that the

fingerprints found at the scene of the crimes showed that

appellant was there at some time, and together with the
post-arrest statement and other evidence in the case, established

that appellant was guilty of possession of heroin with the intent

to distribute on June 24, 1994 and July 22, 1994, the dates the

heroin was seized by the police.

     The Supreme Court has recognized that fingerprinting is a




                                - 6 -
certain and scientific method of identification and "actually 'an

unforgeable signature.'"   Turner v. Commonwealth, 218 Va. 141,

146, 235 S.E.2d 357, 360 (1977) (citation omitted).   In Turner,

the Court stated the following:
          [W]hile defendant's fingerprint found at the
          scene of the crime may be sufficient under
          the circumstances to show defendant was there
          at some time, nevertheless, in order to show
          defendant was the criminal agent, such
          evidence must be coupled with evidence of
          other circumstances tending to reasonably
          exclude the hypothesis that the print was
          impressed at a time other than that of the
          crime. Such "other circumstances . . . need
          not be circumstances completely independent
          of the fingerprint, and may properly include
          circumstances such as the location of the
          print, the character of the place or premises
          where it was found and the accessibility of
          the general public to the object on which the
          print was impressed." Those attendant
          circumstances may demonstrate the accused was
          at the scene of the crime when it was
          committed. And if such circumstances do so
          demonstrate, a rational inference arises that
          the accused was the criminal agent.

Id. at 146-47, 235 S.E.2d at 360 (citations omitted).     See also

Ricks v. Commonwealth, 218 Va. 523, 526, 237 S.E.2d 810, 812

(1977); Avent v. Commonwealth, 209 Va. 474, 479-80, 164 S.E.2d
655, 659 (1968); Tyler v. Commonwealth, 22 Va. App. 480, 482, 471

S.E.2d 772, 773 (1996).

     The fingerprints were the only direct evidence presented by

the Commonwealth to show that appellant was the criminal agent.

Admittedly, the Commonwealth had to connect the fingerprints with

"other circumstances" to identify him as the criminal agent.    To

do this, the Commonwealth presented Hines' post-arrest statement.



                               - 7 -
 Hines argued that the facts set forth in the statement were not

connected to the June 24, 1994 and July 22, 1994 offenses.       In

the statement, Hines told the police officer that he had begun

"moving" heroin "3-4 months back."      From December 29, 1994, this

statement would relate back only to August 29, 1994.     The

statement indicated Hines had been selling heroin "for as long as

I needed some [money]."   Because the record does not disclose how

long Hines needed money, this statement is not specific as to

dates.    Hines said he last brought heroin to Richmond from New

York "3-4 months ago" and possessed "about five bundles . . . a

couple of months ago."    Because Hines stated that he last brought

heroin from New York around August 29, 1994, one can reasonably

infer that he had brought heroin to Richmond from New York prior

to August 29, 1994, which places the possession within the time

frame of the two offenses.   When asked specifically about his

drug activities "in the summer," Hines replied "I can't really

say."    A reasonable interpretation of the statement is that Hines

was speaking in terms of approximations.     In any event, the

statement tended to establish the probability or improbability of

the time that Hines had access to and possessed heroin brought

from New York for sale locally.   It also established the fact

that Hines knew about heroin and that he possessed it in the

approximate time frame of these offenses.     The record also

established that on June 24, 1994, and July 22, 1994, Hines'

fingerprints were on the drugs.   This could not have occurred



                                - 8 -
before he possessed it.   The issue then is whether this evidence

constitutes "other circumstances" that would tend to connect

Hines as the criminal agent in the crimes committed on June 24,

1994 and July 22, 1994.   We find that the statement to the police

is relevant evidence for this purpose.    However, several other

factors must be discussed before we can say the statement is

admissible evidence.

     Professor Friend states the "Prior Crimes Rule" as follows:
          "[E]vidence which shows or tends to show the
          accused guilty of the commission of other
          offenses at other times is inadmissible if
          its only relevancy is to show the character
          of the accused or his disposition to commit
          an offense similar to that charged; but if
          such evidence tends to prove any other
          relevant fact of the offense charged, and is
          otherwise admissible, it will not be excluded
          merely because it also shows him to have been
          guilty of another crime."

          Therefore:


          "Evidence of other offenses is admitted . . .

          if it tends to prove any relevant element of
          the offense charged."

1 Charles E. Friend, The Law of Evidence in Virginia § 12-14 (4th

ed. 1993) (footnotes omitted).     See also Rodriguez v.

Commonwealth, 249 Va. 203, 206, 454 S.E.2d 725, 727 (1995);

Satcher v. Commonwealth, 244 Va. 220, 230, 421 S.E.2d 821, 827-28

(1992), cert. denied, 507 U.S. 933 (1993); Wilkins v.

Commonwealth, 18 Va. App. 293, 297-98, 443 S.E.2d 440, 443-44

(1994) (en banc).



                                 - 9 -
     As previously explained, Hines' statement was admitted to

prove, inter alia, "other circumstances" in connection with the

fingerprints.   Significantly, it was not admitted for the purpose

of showing appellant's character or his disposition to commit an

offense similar to that charged.

     If the probative value of the evidence outweighs the

prejudicial effect upon the defendant, relevant evidence should

be admitted.    If the prejudicial effect exceeds the probative

value, the evidence should be excluded.    This determination is

committed to the trial court's discretion and requires the trial

court to conduct a balancing test based on the facts and

circumstances of a particular case.     Lewis v. Commonwealth, 8 Va.

App. 574, 579, 383 S.E.2d 736, 740 (1989) (en banc).    "[A] trial

court's discretionary ruling will not be disturbed on appeal

absent a clear abuse of discretion."     Coe v. Commonwealth, 231

Va. 83, 87, 340 S.E.2d 820, 823 (1986).    We find no clear abuse

of discretion here.   Accordingly, the trial court properly

admitted in evidence the statement Hines gave to the police.

     The second issue challenges the sufficiency of the evidence

to prove the offenses set forth in the indictments.
          On appeal, we review the evidence in the
          light most favorable to the Commonwealth,
          granting to it all reasonable inferences
          fairly deducible therefrom. The judgment of
          a trial court sitting without a jury is
          entitled to the same weight as a jury verdict
          and will not be set aside unless it appears
          from the evidence that the judgment is
          plainly wrong or without evidence to support
          it.



                               - 10 -
Martin v. Commonwealth, 4 Va. App. 437, 443, 358 S.E.2d 415, 418

(1987).   "The weight which should be given to evidence and

whether the testimony of a witness is credible are questions

which the fact finder must decide."    Bridgeman v. Commonwealth, 3

Va. App. 523, 528, 351 S.E.2d 598, 601 (1986).

     In order to convict appellant under the indictments, the

prosecution was required to prove he "'intentionally and

consciously possessed' the drug[s], either actually or

constructively, with knowledge of [their] nature and character,

together with the intent to distribute [them]."    Wilkins, 18 Va.

App. at 298, 443 S.E.2d at 444 (citation omitted).    Appellant's

intent to distribute the drugs may be "'shown by circumstantial

evidence' which is '"consistent with guilt"' and '"inconsistent"'

with and '"exclude[s] every reasonable hypothesis of

innocence."'"   Id. (citations omitted).   As previously stated,

appellant does not dispute that the Commonwealth proved that the

crimes described in the indictments were committed.    However, he

contends that the Commonwealth did not sufficiently prove that he

was the criminal agent who committed the offenses because no

evidence proved that he possessed or had any connection with the

two stashes of heroin and the guns located in the two abandoned

houses on June 24, 1994 and on July 22, 1994.

     This brings us to the crux of the issue before us.    Does the

Commonwealth's evidence, tested by rules that are well

established, provide an adequate basis to support the convictions



                              - 11 -
by the trial court finding appellant guilty of two charges of

possession of heroin with intent to distribute and possession of

a firearm while in possession of heroin?   We must review the

evidence not as to what action we might have taken, but as to

whether the evidence justified the trial judge, as finder of the

facts and the reasonable inferences drawn therefrom, in finding

appellant guilty.   When the evidence leads to the conclusion of

guilt beyond a reasonable doubt, and excludes every reasonable

hypothesis of innocence, it is sufficient to support the judgment

of the trial court.
     We have already discussed the law relating to fingerprint

evidence and will not repeat it.   Suffice it to say that in order

to prove that appellant was the criminal agent, the fingerprint

evidence must be coupled with evidence of "other circumstances"

tending to reasonably exclude the hypothesis that the print or

prints were impressed at a time other than that of the crime.

Such "other circumstances" need not be completely independent of

the fingerprint evidence, however, they must demonstrate that the

accused was at the scene of the crime when it was committed.

     In addition to the two abandoned houses at 1124 and 1114

North 31st Street described herein, another house is of

importance in this case.   Lillian Thorpe, a codefendant, gave a

statement to the police concerning her involvement with the drugs

at 1124 North 31st Street.   The statement was admitted as to her,

but not against Hines.   However, other testimony indicated that




                              - 12 -
she lived next door to 1124 North 31st Street.    The back door of

Thorpe's house faced the back door of 1124 North 31st Street, and

it is only a few feet across an alleyway between the two

buildings.   Two of Thorpe's fingerprints were found upon the

glassine bags of heroin found in 1124 North 31st Street together

with the print of Hines.   These connections were facts to be

considered by the fact finder, together with reasonable

inferences deduced therefrom.
     Hines' December 29, 1994 statement to the police made

several important admissions for the fact finder to consider,

together with inferences that could be drawn therefrom.    He

admitted that he had about five "bundles" of heroin in his

possession "a couple of months ago."     When asked about the

summer, Hines stated that he "can't say."    This denial was

inaccurate because in the next sentence he stated that he brought

heroin back from New York up to four months earlier.    Four months

before December 29 was August 29, well within summer.    He also

stated that he had been selling heroin "for as long as I needed

some [money]."   He stated that he started "moving" heroin "3-4

months back."    The fact finder was entitled to disbelieve these

dates because his fingerprints on the heroin in the two houses

dated to June 24, 1994 and July 22, 1994, several months earlier

in time.

     The bags of heroin were transparent glassine bags and were

secreted in abandoned houses not frequented by or generally




                                - 13 -
accessible to the general public.    Therefore, the evidence does

not permit a reasonable inference that appellant innocently

handled the bags without knowledge of their contents.    Moreover,

appellant's admissions that he brought heroin from New York to

Virginia, sold heroin for money, and possessed five "bundles" of

heroin proved that he was familiar with heroin and the manner in

which it is packaged, and that he knowingly possessed and handled

heroin, thereby accounting for his fingerprints on the glassine

bags.    Although the evidence did not directly connect appellant

with having been seen or having occupied either of the two

residences, his fingerprints, the statement he made to the

police, the other circumstances in the evidence, and the

reasonable inferences therefrom, proved that he was in the

business of buying and selling heroin during the relevant time

period and that he knowingly possessed the heroin for

distribution at the time and location where the drugs were found.

Although the houses where the heroin was stored were abandoned,

there was no evidence that the houses were open to the public or

frequented by others.    Also, there was no evidence that anyone

other than those whose prints were on the heroin, which included

appellant, had possessed and exercised dominion and control over

the heroin in the two houses.    There is no other reasonable

explanation in the record to show how appellant's fingerprints

got on the heroin and magazines.
        Citing Cook v. Commonwealth, 226 Va. 427, 433, 309 S.E.2d




                                - 14 -
325, 329 (1983), Hines argues that a conviction based upon

circumstantial evidence may be sustained only if the evidence,

when taken as a whole, excludes every reasonable hypothesis of

innocence.   The Commonwealth "'must overcome the presumption of

innocence and exclude all reasonable conclusions inconsistent

with that of guilt.'"     Higginbotham v. Commonwealth, 216 Va. 349,

353, 218 S.E.2d 534, 537 (1975) (citations omitted).      The fact

finder in this case could conclude from Hines' statement that he

was in the business of buying and selling illegal heroin and that

he was engaged in this business as far back as June and July of

1994 because his fingerprints were found on the packaged drugs at

that time.   The fact finder could infer that the locations from

which the business was conducted were 1114 and 1124 North 31st

Street, both abandoned residences.       Large quantities of heroin

were found in each house packaged in a manner consistent with the

sale and distribution of illegal drugs and inconsistent with

personal use.   A handgun, magazine, and ammunition were found in

one house and two shotguns in the other.      A large amount of cash

was present.    All of these things along with the other

circumstances shown in the record may be considered to support

the finding that a person is engaged in the business of

distributing drugs.     See Poindexter v. Commonwealth, 16 Va. App.

730, 735, 432 S.E.2d 527, 530 (1993) (accompanying possession of

a large amount of cash); Burchette v. Commonwealth, 15 Va. App.

432, 437, 425 S.E.2d 81, 84-85 (1992) (accompanying possession of



                                - 15 -
a firearm); Brown v. Commonwealth, 15 Va. App. 1, 9, 421 S.E.2d

877, 882 (1977) (large amount of packaged drugs).   Moreover, the

fingerprints are signatures showing the guilt of appellant.

     Hines suggests that his prints may have been placed on the

drugs and handgun at a time other than the time of the crimes.

There is nothing in the record to support this hypothesis.    Under

the totality of the circumstances, this is not a reasonable

hypothesis to support his innocence.
     In Turner, the Supreme Court discussed the Commonwealth's

burden to exclude the hypothesis that fingerprints had been

impressed at a time other than the time of the crime:
          But the prosecution is not required to
          affirmatively and conclusively prove to a
          certainty that the print could not have been
          made other than at a time when the crime was
          committed. As we noted in Avent, the
          fingerprint evidence need be joined only with
          evidence of other circumstances tending to
          reasonably exclude the hypothesis that the
          print was made at some other time than during
          commission of the crime. And the hypotheses
          which must be reasonably excluded are those
          which flow from the evidence itself, and not
          from the imagination of defendant's
          counsel . . . . "While a defendant does not
          have the obligation to testify himself or to
          offer testimony to explain the presence of
          his prints, a court cannot supply evidence
          that is lacking."


218 Va. at 148, 235 S.E.2d at 361 (citations omitted).

     With respect to appellant's conviction for possessing a

firearm while in possession of heroin, the evidence proved that

the ammunition magazine that contained appellant's palm print was

located next to a handgun on the same mantel.   Because the


                             - 16 -
handgun's magazine was in close proximity to the handgun and fit

the handgun, the evidence of appellant's palm print on the

magazine, together with all the other circumstances of the case,

was sufficient to prove that the handgun was subject to his

dominion and control.   Furthermore, although the handgun was not

found in the same part of the house as the heroin, "[t]he

Commonwealth need not prove that [the defendant] had ready access

to either the gun or the [heroin] to establish 'simultaneous

possession.'"   Jefferson v. Commonwealth, 14 Va. App. 77, 81, 414

S.E.2d 860, 862 (1992).    The handgun was in plain view in the

abandoned house where the heroin was also located, the house was

not easily accessible to the general public, and appellant's palm

print was found on the handgun's magazine.   This evidence,

combined with the other evidence linking appellant to the heroin

found in the house, was sufficient to prove that he "knew of the

presence and character" of the gun and of the heroin "and that he

consciously possessed them."    Id.
     Based upon the foregoing, we find that the evidence was

sufficient to prove that appellant constructively possessed the

heroin found in the two houses with the intent to distribute it

and that he possessed the handgun found in the first house while

in possession of heroin.

     For these reasons, we affirm appellant's convictions.

                                                    Affirmed.




                               - 17 -
