                        COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Fitzpatrick, Judges Benton and Clements
Argued at Chesapeake, Virginia


TERRY DESHAWN JACKSON
                                           MEMORANDUM OPINION * BY
v.   Record No. 0684-00-1         CHIEF JUDGE JOHANNA L. FITZPATRICK
                                              JANUARY 23, 2001
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
                      Joseph A. Leafe, Judge

          Glenn R. Hilton for appellant.

          Robert H. Anderson, III, Senior Assistant
          Attorney General (Mark L. Earley, Attorney
          General, on brief), for appellee.


     Terry D. Jackson (appellant) was convicted in a bench trial

of (1) possession of cocaine, with intent to distribute, in

violation of Code § 18.2-248, (2) possession of a firearm, while

possessing, with intent to distribute, cocaine, in violation of

Code § 18.2-308.4(B); and (3) possession, with intent to

distribute, of more than one-half ounce but less than five pounds

of marijuana, in violation of Code § 18.2-248(a)(2).   On appeal,

he contends the evidence was insufficient to convict him.   We

agree and reverse and remand for further proceedings his

convictions for possession of cocaine and marijuana with the

intent to distribute.    We reverse and dismiss his conviction for

     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
possession of a firearm while possessing, with intent to

distribute, cocaine.

                             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 that evidence all reasonable

inferences fairly deducible therefrom.     See Juares v.

Commonwealth, 26 Va. App. 154, 156, 493 S.E.2d 677, 678 (1997).

On May 13, 1999, the Norfolk Police Department executed a search

warrant at 3126 Argonne Avenue, Apartment B, in Norfolk.     The

warrant was obtained on the sworn affidavit of Investigator J.F.

Poch, who did not testify.    The affidavit asserted that three

controlled buys were made at the apartment and described two men

involved in the sales, neither of whom was appellant.      One of the

men described in the affidavit was later identified as Gary Hill

(Hill).   The other man was not identified.    After the search

warrant was issued but before its execution, the confidential

informant conducted a fourth controlled buy.    The fourth buy

occurred two to three hours before the warrant was executed.       The

confidential informant described the seller to police as

"[a]pproximately five nine, 160 pounds, light-skinned, medium

Afro, . . . wearing a light-colored shirt, in his early 20's."

The confidential informant did not testify at trial.

     When Officer R.C. Boone (Boone) executed the warrant, he

found appellant and Hill sitting on a couch.    Five small bags of

                                  - 2 -
cocaine, weighing a total of .48 grams with a street value of $50,

were on a coffee table in front of the couch and two bags of

marijuana, containing a total of 2.64 ounces of marijuana, were on

the coffee table.    A 1.34 ounce bag of marijuana was on the couch

next to appellant.    A digital scale in a leather case was found on

the coffee table.    Boone saw a handgun on the couch between

appellant and Hill.

     A search of the rest of the apartment uncovered 4.48 ounces

of marijuana in the hallway closet and .08 ounces of marijuana in

the kitchen cabinet.      Appellant admitted he was aware of the

marijuana on the coffee table and couch and the handgun on the

couch.   However, other than appellant's presence in the apartment

at the time the officers executed the search warrant, there was no

evidence linking appellant to the apartment. 1

                    II.   Sufficiency of the Evidence

     Appellant contends that the evidence was insufficient to

convict him of the three charges.     The judgment of the trial

court, sitting without a jury, is entitled to the same deference

as a jury verdict and will be set aside only if plainly wrong or

without evidence to support it.     Crawley v. Commonwealth, 29 Va.

App. 372, 375, 512 S.E.2d 169, 170 (1999).     "The credibility of a

witness, the weight accorded the testimony, and the inferences to


     1
       According to appellant's uncontradicted testimony, he had
not seen Hill in over five years and was in the apartment for only
thirty minutes before the search warrant was executed.


                                  - 3 -
be drawn from proven facts are matters solely for the fact

finder's determination."   Id. (citation omitted).

     In the instant case, appellant was tried on an indictment

alleging that he possessed cocaine, marijuana and a firearm with

the "intent to distribute" the cocaine and marijuana.    "The

Commonwealth was required to prove that appellant 'intentionally

and consciously possessed' the [marijuana, cocaine and firearm],

either actually or constructively, with knowledge of its nature

and character, together with the intent to distribute it."

Wilkins v. Commonwealth, 18 Va. App. 293, 298, 443 S.E.2d 440, 444

(1994) (citations omitted).

                   A.    Constructive Possession

     Appellant contends that the evidence was insufficient to

prove he possessed the marijuana, cocaine and firearm.    Possession

can be actual or constructive.    See id.   "Constructive possession

may be shown by [appellant's] acts, declarations or conduct which

support the inference that the contraband was 'subject to his

dominion or control.'"   Id. (quoting Josephs v. Commonwealth, 10

Va. App. 87, 99, 390 S.E.2d 491, 497-98 (1990) (en banc)).      Thus,

the Commonwealth must establish that appellant "was aware of both

the presence and character of the substance and that it was

subject to his dominion and control."    Brown v. Commonwealth, 5

Va. App. 489, 491-92, 364 S.E.2d 773, 774 (1988).    "[A] person may

constructively possess drugs owned by another."    Harrison v.

Commonwealth, 12 Va. App. 581, 585, 405 S.E.2d 854, 857 (1991).

                                 - 4 -
     In the instant case, appellant testified that he knew what

marijuana, cocaine and a gun look like.   He admitted he sat on the

couch with a handgun between himself and Hill.     He saw the drugs 2

on a coffee table 3 located directly in front of the couch and the

marijuana on the side of the couch near him.      Appellant noticed

the marijuana and gun as soon as he entered the living room.

While talking, Hill asked appellant if he wanted to "smoke a

blunt," but appellant refused.    The drugs and handgun were located

within the immediate vicinity of appellant.    At one point, Hill

went to the door and talked to someone else, leaving appellant

alone with the drugs and handgun.    In combination, these

circumstances establish appellant's knowledge of the drugs and

firearm and that they were subject to appellant's dominion and

control.   Thus, the Commonwealth established that appellant

constructively possessed the drugs and firearm.     However, our

inquiry does not end there.

                      B.   Intent to Distribute

     All three of the charged offenses required the Commonwealth

to prove not only possession but also to prove beyond a reasonable

doubt that appellant had the specific intent to distribute the


     2
       On appeal, appellant claims he was only aware of the
marijuana, however, the record indicates he testified that "the
drugs were in front of" him.
     3
       Drugs were also found elsewhere in the apartment.
However, the Commonwealth presented no evidence that appellant
had knowledge of the other drugs.


                                 - 5 -
drugs. 4   "[P]roof of intent is essential to conviction.   While

intent may be shown by circumstantial evidence, the existence of

intent cannot be based upon speculation or surmise."    Adkins v.

Commonwealth, 217 Va. 437, 440, 229 S.E.2d 869, 871 (1976).     Where

evidence of intent to distribute is wholly circumstantial, "'all

necessary circumstances proved must be consistent with guilt and

inconsistent with innocence and exclude every reasonable

hypothesis of innocence.'"    Barksdale v. Commonwealth, 31 Va. App.

205, 211, 522 S.E.2d 388, 391 (1999) (quoting Dukes v.

Commonwealth, 227 Va. 119, 122, 313 S.E.2d 382, 383 (1984)); see

also Morton v. Commonwealth, 13 Va. App. 6, 9, 408 S.E.2d 583, 584

(1991).

      To prove appellant's "intent to distribute," the Commonwealth

presented evidence attempting to establish that appellant was the

seller in the fourth buy which occurred several hours before the

execution of the search warrant.    "The standard for judging the

sufficiency of evidence to prove identity or any other key fact in

a criminal case is . . . the Commonwealth must prove that fact

beyond a reasonable doubt."    Crawley, 29 Va. App. at 377-78, 512

S.E.2d at 172 (emphasis in original).    In the instant case, the


      4
       The Commonwealth argues that Rule 5A:18 bars this Court
from considering the "intent to distribute" element of the
crimes because appellant "conceded that whoever possessed the
drugs had intended to distribute them." We disagree. Appellant
argued in his motion to strike that even though other persons
clearly possessed the intent to distribute the drugs, appellant
did not.


                                - 6 -
confidential informant described the seller in the fourth buy as

"[a]pproximately five nine, 160 pounds, light-skinned, medium

Afro, . . . wearing a light-colored shirt, in his early 20's."

The confidential informant was the only person who observed the

seller during the fourth sale.    There was no evidence presented

that the confidential informant identified appellant as being the

seller.   The following colloquy with Investigator Boone occurred

during the trial:

           Q. I thought. Investigator, earlier, when I
           asked you whether Mr. Jackson had been
           identified as the person described by the
           confidential informant, you said, in essence,
           that Investigator Poch would have to address
           that question?

           A. Right. He said to me, he didn't say to
           the informant. He said, Did I identify him
           from the description, and yes, I mean, from
           the description, to me that fit him, yes. I
           identified him as such. He didn't say
           anything about the informant identifying him.
           I'm not sure about the informant identifying
           him.

           Q. I'd asked you earlier whether the
           informant had subsequently identified Mr.
           Jackson by name. You said, by just a general
           physical description. And you said, well, I
           really can't address that. Officer Poch
           would have to do it. And now you've just
           said, you identified Mr. Jackson as being the
           person who allegedly made the sale to the
           confidential informant. I'm wondering how
           we're getting to that point? I'm a little
           confused.

           A. Okay, so am I. Basically when you asked
           me that question, I told you that he
           identified him by description is what I said.
           And what he just asked me was, based upon the
           information that the informant gave to us,

                                 - 7 -
          did I identify him as being that subject? To
          me, that information obtained, matches the
          subject. That has nothing to do with the
          informant, as far as what I understood. If
          that's what it was, then I misunderstood the
          question.

          Q. That's what I wanted to make sure of. In
          other words, Mr. Jackson seemed to match the
          general physical description given by the
          confidential informant. So you're assuming
          that Mr. Jackson was, in fact, the person who
          tried to sell grass to the confidential
          informant?

          A.   That's correct.

Despite testifying that appellant matched the description provided

by the confidential informant, Boone testified:

          Q. Did he have the appearance that he has
          today with the snakes or the dreads?

          A.   No.

          Q.   He did not?

          A. Not to that extent, but he did have the
          medium dreads.

Thus, Boone confirmed appellant's testimony that appellant had

"medium dreads" at the time of arrest not the "medium afro"

observed by the confidential informant.   The general description

of the seller, never identified by anyone as appellant, is

insufficient to prove his involvement in the fourth sale.    Nor is

this a case where the Commonwealth may rely upon the quantity and

packaging of the drugs to establish appellant's "intent to

distribute" because "one party in possession of controlled

substances may intend to distribute them while another person who


                                 - 8 -
constructively possesses the same substances because they are

subject to his dominion and control may not share the intent to

distribute the substances."   Harrison, 12 Va. App. at 585, 405

S.E.2d at 857.   As appellant was not the sole possessor of the

drugs, the Commonwealth must provide further evidence of "intent

to distribute" than simply the quantity and packaging of the

drugs.   Absent proof of appellant's involvement in the fourth

sale, the Commonwealth provided no evidence that linked appellant

to any earlier sale or proved that he "intended to sell" any

drugs.

     In summary, we hold the evidence was insufficient to sustain

appellant's conviction for possession of a firearm while

possessing, with the intent to distribute, cocaine and dismiss

this conviction.   We hold the evidence was insufficient to sustain

appellant's convictions for possession of cocaine, with intent to

distribute, and possession of marijuana, with intent to

distribute, but remand to the trial court for sentencing on the

two lesser-included offenses of possession of cocaine and

marijuana.

                                         Reversed and remanded,
                                         in part, and reversed
                                         and dismissed, in part.




                               - 9 -
Benton, J., concurring and dissenting.

     I concur in Part I and Part II(B) of the opinion.    Because

I believe, however, that the evidence failed to prove Terry

Jackson constructively possessed the narcotics and the gun, I

dissent from Part II(A).

                               I.

     The standard governing the analysis of this circumstantial

evidence case is well established.

             The burden was on the Commonwealth to
          prove beyond a reasonable doubt that
          [Jackson] was aware of the presence and
          character of the [narcotics] and was
          intentionally and consciously in physical or
          constructive possession of [them]. To
          support the conviction, the possession does
          not have to be actual or exclusive, but may
          be proved by showing that the [narcotics
          were] subject to [Jackson's] dominion and
          control. But mere proximity to a controlled
          drug is not sufficient to establish
          possession.

Wright v. Commonwealth, 217 Va. 669, 670, 232 S.E.2d 733, 734

(1977) (citations omitted) (emphasis added).    The existence of

evidence necessary to prove elements of the offense "cannot be

based upon surmise or speculation."     Patterson v. Commonwealth,

215 Va. 698, 699, 213 S.E.2d 752, 753 (1975).    "To satisfy the

due process requirements of the . . . Constitution, the

prosecution must bear the burden of proving all elements of the

offense beyond a reasonable doubt."     Stokes v. Warden, 226 Va.

111, 117, 306 S.E.2d 882, 885 (1983).



                             - 10 -
     The evidence proved that the apartment was leased and

occupied by Gary Hill, who was present in the apartment at all

times.   The evidence proved marijuana and cocaine were on the

table in front of Hill and marijuana was hidden in other places

in Hill's apartment.    The police officer testified that he did

not know how long the cocaine and marijuana had been on the

table and that he detected no smell indicating that marijuana or

cocaine had been smoked.   He further testified that the

marijuana and cocaine "weren't laying open as if someone had

been . . . using it."

     As in Wright, the evidence in this case proved only that

Jackson was seated in proximity to the gun and the cocaine and

marijuana.   No evidence proved he exerted dominion or control

over any of those items.   Indeed, as in Wright, Jackson "did not

live in the apartment, no [cocaine] was found in his actual

possession, and there is no evidence that the [cocaine] was

shared with [the lessee] or that it was under [Jackson's]

dominion or control."   217 Va. at 670, 232 S.E.2d at 734.   The

decisions in Wright, Huvar v. Commonwealth, 212 Va. 667, 187

S.E.2d 177 (1972), and Crisman v. Commonwealth, 197 Va. 17, 87

S.E.2d 796 (1955), all stand for the proposition that an

accused's mere proximity to persons who possess drugs or to

places where drugs are found is insufficient to establish

constructive possession.   As in those cases, the evidence here



                               - 11 -
also fails to establish that Jackson owned, controlled, or used

any of the cocaine or marijuana found in Hill's apartment.

     Apropos to this case, the Court ruled in Huvar as follows:

            The only evidence which connects the
            [accused] with the drugs involved here is
            his presence in the apartment when they were
            found . . . . There is no evidence that
            [the accused] owned, possessed or exercised
            any control over these specific drugs.

212 Va. at 668, 187 S.E.2d at 178.      No evidence of acts,

declarations, or conduct proved Jackson had dominion or control

over the marijuana or cocaine that was in Hill's apartment.

Proof that Jackson remained in the living room while Hill

answered a knock on the door fails to prove Jackson

intentionally and consciously possessed Hill's narcotics.      This

evidence proves only that Jackson may have had the opportunity

to exercise control over the items.

     "'[C]ircumstances of suspicion, no matter how grave or

strong, are not proof . . . sufficient to support a verdict of

guilty.'"    Crisman, 197 Va. at 21, 87 S.E.2d at 799 (citation

omitted); see also Stover v. Commonwealth, 222 Va. 618, 624, 283

S.E.2d 194, 197 (1981).

               It is well settled in Virginia that to
            justify conviction of a crime, it is not
            sufficient to create a suspicion or
            probability of guilt, but the evidence must
            establish the guilt of an accused beyond a
            reasonable doubt. It must exclude every
            reasonable hypothesis except that of guilt.
            The guilt of a party is not to be inferred
            because the facts are consistent with his


                               - 12 -
          guilt, but they must be inconsistent with
          his innocence.

Cameron v. Commonwealth, 211 Va. 108, 110-11, 175 S.E.2d 275,

276 (1970).

     The evidence in this record proves only Jackson's mere

proximity to the cocaine, the marijuana, and the gun.   This

evidence creates a mere suspicion that he could have had control

and, thus, it was insufficient to prove constructive possession

beyond a reasonable doubt.   As does the majority opinion, I

would reverse the convictions of possession with intent to

distribute the marijuana and the cocaine and the corresponding

conviction for possessing a firearm.   In addition, however, I

would also hold that the evidence failed to prove constructive

possession necessary to support the lesser-included offenses.

Accordingly, I would reverse all the convictions and dismiss the

indictments.




                              - 13 -
