                  COURT OF APPEALS OF VIRGINIA


Present: Judges Baker, Coleman and Senior Judge Cole
Argued at Richmond, Virginia


CRAIG JEROME MORRIS

v.        Record No. 1507-95-3          MEMORANDUM OPINION *
                                     BY JUDGE JOSEPH E. BAKER
COMMONWEALTH OF VIRGINIA                   MAY 14, 1996


         FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG
                   Mosby G. Perrow, III, Judge
          Sharon K. Eimer, Senior Assistant Public
          Defender (Office of the Public Defender, on
          brief), for appellant.

          Monica S. McElyea, Assistant Attorney General
          (James S. Gilmore, III, Attorney General, on
          brief), for appellee.



     Craig Jerome Morris (appellant) appeals his bench trial

convictions by the Circuit Court of the City of Lynchburg (trial

court) for possession of cocaine with intent to distribute in

violation of Code § 18.2-48 and possession of a firearm while

unlawfully possessing cocaine in violation of Code § 18.2-308.4.

 Appellant argues on appeal: (1) that the evidence is

insufficient to show that he possessed cocaine; (2) that the

evidence is insufficient to sustain his conviction for possession

of cocaine with intent to distribute; and (3) that the evidence

is

insufficient to sustain his conviction for knowingly possessing a

firearm while in unlawful possession of cocaine.
     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
        In passing upon the sufficiency of the evidence, we view the

evidence in the light most favorable to the Commonwealth,

granting to it all reasonable inferences fairly deducible

therefrom.     Wright v. Commonwealth, 224 Va. 502, 505, 297 S.E.2d

711, 713 (1982).    Guided by that principle, we find the record

discloses that on November 22, 1994, at 10:27 p.m., the Lynchburg

Police Department executed a search warrant at a residence in

Lynchburg.    Fifty-four seconds after the police knocked on the

back door of the residence, Helen Abbott (Abbott) opened the

door.    Investigator P. K. Morris (Morris) entered the residence

and found appellant in an upstairs bedroom which he later

admitted was his own.
        Among the items related to the drug trade found in

appellant's bedroom were a pouch containing a baggie in which

there was .50 grams of cocaine; behind a television set another

baggie containing .18 grams of cocaine; under appellant's bed in

a suitcase a .45 caliber revolver and a radio receiver; also

under the bed in a green pouch, a .32 caliber pistol with a clip

containing several rounds of ammunition; two police scanners, one

on a shelf above appellant's bed, the other a larger "shelf"

scanner located on appellant's dresser; a pager next to

appellant's bed; $307 cash in an "ammo box" in appellant's

bedroom closet; $75 cash in the bottom drawer of appellant's

dresser; "25 to 50" small, one-inch Ziploc baggies in that bottom

drawer; another 25 to 50 baggies in the upper left-hand dresser



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drawer; and two baggies of marijuana, one on the shelf above

appellant's bed, the other between appellant's bed mattress and

box springs.

     Appellant presented at trial evidence that was contrary to

statements he gave to the police at the time he was arrested.

For example, he told the police that the pager was his but at

trial he presented evidence through a witness who asserted that

the pager was that of the witness.     Appellant initially told the

police that he was keeping the guns for his brother to prevent

his brother from killing his wife, yet at trial he denied any

knowledge of the presence of the guns in his room prior to the

police arriving at the residence.    Initially, appellant told the

police that the $307 was his and was being kept as his rent

money; however, at trial, he denied the money was his and

presented a witness who claimed the money was hers.
     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 to show that the defendant was aware of

both the presence and character of the substance and that it was

subject to his dominion and control."     McGee v. Commonwealth, 4

Va. App. 317, 322, 357 S.E.2d 738, 740 (1987) (quoting Drew v.
Commonwealth, 230 Va. 471, 473, 338 S.E.2d 844, 845 (1986)).




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Although mere proximity to the controlled substance is

insufficient to establish possession, it is a factor to consider

when determining whether the accused constructively possessed

drugs.    Gillis v. Commonwealth, 215 Va. 298, 301, 208 S.E.2d 768,

770-71 (1974).   The ownership or occupancy of the premises where

the items were found is another factor that may be considered "to

prove that the owner or occupant exercised dominion and control

over [the items]."    Burchette v. Commonwealth, 15 Va. App. 432,

435, 425 S.E.2d 81, 83 (1992).
            In all cases of circumstantial evidence the
          conduct of the accused is always an important
          factor in the estimate of the weight of the
          circumstances which point to his guilt.
          Where a conviction rests upon circumstantial
          evidence, much weight is given to
          contradictory statements of material facts by
          the accused. Each should be considered along
          with other facts and circumstances shown in
          evidence to determine whether, upon the whole
          case, the evidence excludes every reasonable
          hypothesis consistent with the accused's
          innocence.


Toler v. Commonwealth, 188 Va. 774, 781, 51 S.E.2d 210, 213

(1949).

     The trial court found the testimony of appellant and his

witness not credible, rejecting appellant's claim that the

cocaine had been placed in his room by another.   As the Court in
Toler said:
          The facts, accepted by the [trier of fact],
          admitted of inferences of guilt more probable
          and natural than of any reasonable hypothesis
          of innocence, and warranted the [trier of
          fact] in rejecting his explanations as
          untrue. In other words, the facts
          established are consistent with his guilt and



                                - 4 -
          inconsistent with his innocence.


188 Va. at 146, 235 S.E.2d at 214.     Appellant's proximity to the

drugs, their location in his bedroom, and his inconsistent

statements support the finding of the trial court that appellant

possessed the cocaine found in his room.

         Possession of Cocaine With Intent to Distribute

     In order to support appellant's conviction for possession of

cocaine with intent to distribute, the Commonwealth must prove

beyond a reasonable doubt that he intended to distribute the

cocaine that he possessed.   See Patterson v. Commonwealth, 215

Va. 698, 699, 213 S.E.2d 752, 753 (1975).

     The evidence reveals that appellant was in possession of .68

grams of cocaine, a pager, two police scanners, two handguns, 50

to 100 one-inch square, plastic baggies, $382 cash ($75 in the

dresser next to his bed and $307 in an ammunition box in his

closet), and two baggies of marijuana; that no paraphernalia

necessary for the personal use of cocaine was found; that

appellant stated he did not personally consume cocaine, only

marijuana; and that appellant made inconsistent statements

concerning his knowledge of the existence of the black pouch and

the ownership of the cocaine it held, the ownership of the pager,

and the ownership of the money found in his room.

     The absence of paraphernalia necessary for personal

consumption, coupled with appellant's admission that he did not

personally use cocaine is strong evidence of an intent to



                               - 5 -
distribute.    The presence of a pager, police scanners, weapons,

and small plastic baggies where the cocaine was found also

support the trial court's judgment.     See Servis v. Commonwealth,

6 Va. App. 507, 371 S.E.2d 156 (1988) (the presence of

paraphernalia used in the drug trade is relevant to proof of

intent to distribute).    In addition, the trial court was entitled

to place much weight on appellant's inconsistent statements

concerning material facts of the case.     Toler, supra, 188 Va. at

781, 51 S.E.2d at 213.
     We hold that the evidence is sufficient to support its

submission to the trier of fact that concluded appellant was

guilty as charged.   Viewing the evidence in its totality, we

cannot say that the conclusion of the trial court was plainly

wrong or without evidence to support it.

     Possession of a Firearm While in Possession of Cocaine

     Code § 18.2-308.4 provides that any person who unlawfully

possesses cocaine and "simultaneously with knowledge and intent

possesses any firearm" is guilty of a felony.    To uphold a

conviction under Code § 18.2-308.4, "actual possession of both

the firearm and the controlled substance is not required . . . .

Constructive possession of either or both is sufficient for

conviction."    Jefferson v. Commonwealth, 14 Va. App. 77, 80, 414

S.E.2d 860, 862 (1992).   It is not necessary that "[t]he

Commonwealth . . . prove that [appellant] had ready access to

either the gun or the cocaine to establish 'simultaneous




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possession.'"   Id. at 81, 414 S.E.2d at 862.

     Having determined that appellant possessed the cocaine, the

issue becomes whether appellant possessed either or both of the

firearms found in his room.   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 to show that the defendant was aware of

both the presence and character of the [object] and that it was

subject to his dominion and control."   Powers v. Commonwealth,

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

     Appellant told Morris that the handguns found under his bed

were not his, but that his brother had entrusted them to him.

This evidence alone is sufficient to prove that appellant was

aware of the presence and character of the firearms, and that

they were subject to his dominion and control; thus, establishing

constructive possession.

     Accordingly, the judgment of the trial court is affirmed.
                                                         Affirmed.




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