                  COURT OF APPEALS OF VIRGINIA


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


DARLENE MORGAN, S/K/A
 DARLENE R. MORGAN
                                        MEMORANDUM OPINION * BY
v.   Record No. 3009-99-2              JUDGE ROBERT J. HUMPHREYS
                                           FEBRUARY 20, 2001
COMMONWEALTH OF VIRGINIA


            FROM THE CIRCUIT COURT OF DINWIDDIE COUNTY
                      Thomas V. Warren, Judge

          (Phillip T. DiStanislao, Jr.; Hardy &
          DiStanislao, P.C., on brief), for appellant.
          Appellant submitting on brief.

          Donald E. Jeffrey, III, Assistant Attorney
          General (Mark L. Earley, Attorney General, on
          brief), for appellee.


     Darlene Morgan, appellant, appeals her conviction, after a

bench trial, of possession of cocaine with intent to distribute. 1

Morgan argues that the trial court erred in finding the evidence

sufficient to establish constructive possession.   We disagree

and affirm the conviction.

     "Where the sufficiency of the evidence is challenged after

conviction, it is our duty to consider it in the light most

favorable to the Commonwealth and give it all reasonable


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
     1
       Morgan and her husband were jointly tried for this
offense. This appeal concerns only Darlene Morgan's conviction.
inferences fairly deducible therefrom.     We should affirm the

judgment unless it appears from the evidence that the judgment is

plainly wrong or without evidence to support it."     Higginbotham v.

Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975).

        Here, the evidence proved that Investigator Fendle E. Vaughn,

of the Dinwiddie Sheriff's Office, executed a search warrant of a

home occupied by Morgan and her husband on the evening of

September 26, 1997.    Vaughn and the officers accompanying him

found the home to be occupied by six adults and three children.

As the officers entered, one of the adults informed the officers

that Kevin Morgan, appellant's husband, was in a bedroom of the

home.    As the officers approached the bedroom, Kevin Morgan was

leaving the room.    He was wearing "lounge pants like pajama

bottoms, no shirt, [and] no shoes."      Vaughn testified that the

lights in the room were on and the door was open.     Morgan was

inside the room, holding a baby in her arms.     She was dressed in a

"white nightgown."

        After removing Morgan and her husband from the bedroom, the

officers found $4,500 in cash, a ziplock bag containing a large

quantity of cocaine, an electric scale, $110.56 in additional

currency, a pager, food stamp papers which were listed as

belonging to Morgan, a clear plastic bag containing "white powder

residue," and a "slip of paper with a number of columns added up

on it."



                                 - 2 -
       The $4,500 in cash was found in a "multi-colored bag" or

"purse" in a closed drawer of a nightstand that was next to the

bed.       The bag did not contain any identification.   The ziplock bag

containing the cocaine was found on the floor between the bed and

the nightstand.      The scale was located in a dresser in the room,

which also contained men's tennis shoes, cigars and some change. 2

The clothing near the dresser "appeared to be mens [sic]" but

could have been "unisex."

       "In order to convict a defendant of 'possession' of a

narcotic drug . . . it generally is necessary to show that [the]

defendant was aware of the presence and character of the

particular substance and was intentionally and consciously in

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

173 S.E.2d 799, 805 (1970).       However, "[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).

               The applicable law is summarized in Womack
               v. Commonwealth, 220 Va. 5, 255 S.E.2d 351
               (1979). Constructive possession may be

       2
       The scale was submitted for fingerprint analysis, and a
latent fingerprint was identified as belonging to Morgan's
husband.

                                   - 3 -
           shown by establishing that the [contraband]
           was known to and subject to the dominion and
           control of the accused. Knowledge of the
           presence and character of the controlled
           substance may be shown by evidence of the
           acts, statements or conduct of the accused.
           Mere proximity to the controlled substance,
           however, is insufficient to establish
           possession. Nevertheless, the possession
           need not be exclusive.

Eckhart v. Commonwealth, 222 Va. 447, 450, 281 S.E.2d 853, 855

(1981).   "Proof of constructive possession necessarily rests on

circumstantial evidence; thus, all necessary circumstances

proved 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) (citations 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).

     Morgan contends that the evidence proved nothing more than

her mere proximity to the drugs.    On the contrary, the evidence

proved that Morgan was found in the bedroom in which the drugs

were found.   Her husband was present in the room with her, and

they were both dressed in clothing from which it could

reasonably be inferred that they intended to sleep in the room.

In addition, Morgan's food stamp papers were found in the room,

along with a bag or purse containing $4,500.   This evidence was


                                 - 4 -
sufficient to allow the trial court to reasonably infer that

Morgan possessed joint control over the bedroom and its contents

with her husband.   See Gillis v. Commonwealth, 215 Va. 298, 301,

208 S.E.2d 768, 771 (1974) (occupancy of premises as a co-tenant

is a factor to be considered with other evidence in determining

whether a defendant had constructive possession of contraband).

Moreover, the drugs were found on the floor, outside the

nightstand, between the bed and the nightstand.   Viewed in the

light most favorable to the Commonwealth, this evidence

indicates that the drugs were in Morgan's view while she was in

the room.

     Based on the totality of the circumstances, we do not find

that the trial court was "plainly wrong" in finding the evidence

sufficient to establish that Morgan jointly and constructively

possessed the drugs, along with her husband.   See Eckhart, 222

Va. at 451, 281 S.E.2d at 855 (evidence sufficient to establish

that defendant was aware of drugs found in a bedroom she shared

with her husband, when she was seated outside the room in a

location from which the drugs were visible).

                                                           Affirmed.




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