                  COURT OF APPEALS OF VIRGINIA


Present: Judges Humphreys, Clements and Senior Judge Coleman
Argued at Richmond, Virginia


KEVIN E. GRAY
                                         MEMORANDUM OPINION * BY
v.   Record No. 0669-00-2             JUDGE JEAN HARRISON CLEMENTS
                                               MAY 1, 2001
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                    James B. Wilkinson, Judge

          Christopher C. Booberg (Theodore Tondrowski;
          Thorsen, Marchant & Scher, L.L.P., on brief),
          for appellant.

          Leah A. Darron, Assistant Attorney General
          (Mark L. Earley, Attorney General, on brief),
          for appellee.


     Kevin E. Gray was convicted in a bench trial of possession of

heroin in violation of Code § 18.2-250.   On appeal, he contends

the evidence was not sufficient to sustain the conviction.    We

disagree and affirm the conviction.

     As the parties are fully conversant with the record in this

case and because this memorandum opinion carries no precedential

value, this opinion recites only those facts necessary to a

disposition of this appeal.

     When the sufficiency of the evidence is challenged on appeal,

we review the evidence "in the light most favorable to the


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
Commonwealth, granting to it all reasonable inferences fairly

deducible therefrom."   Bright v. Commonwealth, 4 Va. App. 248,

250, 356 S.E.2d 443, 444 (1987).   We may not disturb the

conviction unless it is plainly wrong or unsupported by the

evidence.    Sutphin v. Commonwealth, 1 Va. App. 241, 243, 337

S.E.2d 897, 898 (1985).   We are further mindful that the

"credibility of a witness, the weight accorded the testimony, and

the inferences to be drawn from proven facts are matters solely

for the factfinder's determination."    Keyes v. City of Virginia

Beach, 16 Va. App. 198, 199, 428 S.E.2d 766, 767 (1993).

     Gray claims that the Commonwealth failed to prove beyond a

reasonable doubt that he constructively possessed heroin.

Specifically, he argues that the evidence presented at trial was

insufficient to show that he was aware of the presence and

character of the heroin or that he exercised dominion or control

over it.    Furthermore, he adds, no drugs were found on him or in

his room, and he made no statements acknowledging the presence of

the heroin, which was found in the kitchen with a codefendant.

Thus, he concludes, the Commonwealth's evidence, which was merely

circumstantial, did not exclude every reasonable hypothesis except

that of guilt.

     To convict Gray of possession of heroin, the Commonwealth

must prove that he was aware of the presence and character of the

particular drug and was intentionally and consciously in

possession of it.   Ritter v. Commonwealth, 210 Va. 732, 741, 173

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S.E.2d 799, 805 (1970).    It is not required that actual possession

of the drug be proved.    "[P]ossession of drugs may be actual or

constructive.   Constructive possession may be established by

"evidence of acts, statements, or conduct of the accused or other

facts or circumstances which tend to show that the defendant was

aware of both the presence and the character of the substance and

that it was subject to his dominion and control."    Powers v.

Commonwealth, 227 Va. 474, 476, 316 S.E.2d 739, 740 (1984).

     Mere proximity to an illegal drug is insufficient to

establish possession but is a factor that may be considered.

Walton v. Commonwealth, 255 Va. 422, 426, 497 S.E.2d 869, 871

(1998).    Occupancy of the premises where the illegal drug is found

is another factor that may be considered.    Id.   Possession need

not be exclusive but may be shared.     See Gillis v. Commonwealth,

215 Va. 298, 301-02, 208 S.E.2d 768, 771 (1974) (noting that

occupancy of premises as a co-tenant is a factor to be considered

with other evidence in determining whether a defendant had

constructive possession).   Thus, in resolving the issue of

constructive possession, "the Court must consider 'the totality of

the circumstances disclosed by the evidence.'"     Archer v.

Commonwealth, 26 Va. App. 1, 12, 492 S.E.2d 826, 832 (1997)

(quoting Womack v. Commonwealth, 220 Va. 5, 8, 255 S.E.2d 351, 353

(1979)).

     "Proof of constructive possession necessarily rests on

circumstantial evidence; thus, 'all necessary circumstances proved

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must be consistent with guilt and inconsistent with innocence and

exclude every reasonable hypothesis of innocence.'"   Burchette v.

Commonwealth, 15 Va. App. 432, 434, 425 S.E.2d 81, 83 (1992)

(quoting Garland v. Commonwealth, 225 Va. 182, 184, 300 S.E.2d

783, 784 (1983) (internal quotations omitted)).   "However, the

Commonwealth need only exclude reasonable hypotheses of innocence

that flow from the evidence, not those that spring from the

imagination of the defendant."    Hamilton v. Commonwealth, 16 Va.

App. 751, 755, 433 S.E.2d 27, 29 (1993).   "Whether an alternative

hypothesis of innocence is reasonable is a question of fact and,

therefore, is binding on appeal unless plainly wrong."   Archer, 26

Va. App. at 12-13, 492 S.E.2d at 832 (citations omitted).     "While

no single piece of evidence may be sufficient, the 'combined force

of many concurrent and related circumstances, each insufficient in

itself, may lead a reasonable mind irresistibly to a conclusion.'"

Stamper v. Commonwealth, 220 Va. 260, 273, 257 S.E.2d 808, 818

(1979) (quoting Karnes v. Commonwealth, 125 Va. 758, 764, 99 S.E.

562, 564 (1919)).

     Here the evidence established that Officers Michael

Musselwhite, Matt Cavanaugh, and Mark Lewis of the Richmond Police

Department were conducting surveillance of 1743 Southlawn Avenue

in Richmond.   Based on their observations, a search warrant for

the residence was issued.   On June 10, 1999, Officer Lewis

executed the warrant.   After knocking on the back door and getting

no answer, he entered the premises and saw an individual, not

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Gray, sitting at the kitchen table.    The police then found in

plain view $79 and residue on the kitchen table, a crack pipe

containing residue on the kitchen floor, and sandwich baggies

containing four razor blades with heroin residue on them on top of

the refrigerator.

     Gray was found sitting in the den area behind the kitchen.

He told Lewis that "it was his girlfriend's place" and that "he

had been staying there."   Gray also told Lewis that "he was a

heroin user and did not deal drugs."    Lewis found $270 in a pair

of Gray's shorts in the back bedroom.

     In light of the fact that Gray resided in the home where the

heroin was found; Gray was an admitted heroin user; the heroin

residue and other drug paraphernalia were found in plain view in

the kitchen, a room of common access and use within the home; and

Gray was found in a room near the kitchen, we conclude that the

trial judge could find beyond a reasonable doubt from the totality

of these circumstances that Gray knew of the presence and

character of the heroin and that he intentionally and consciously

had constructive possession of it.     Hence, we hold that the

evidence presented in this case sufficiently supports appellant's

conviction for possession of heroin and that the conviction is not

plainly wrong.

     Accordingly, we affirm the conviction.

                                                           Affirmed.



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