                    COURT OF APPEALS OF VIRGINIA


Present: Judges Bray, Frank and Humphreys
Argued at Chesapeake, Virginia


ANTONIO LAMONT MOZELLE
                                           MEMORANDUM OPINION * BY
v.   Record No. 2277-00-1                 JUDGE ROBERT J. HUMPHREYS
                                               OCTOBER 9, 2001
COMMONWEALTH OF VIRGINIA


         FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
                    Johnny E. Morrison, Judge

          Andrew Kolp, Assistant Public Defender
          (Dianne G. Ringer, Senior Assistant Public
          Defender, on brief), for appellant.

          Stephen R. McCullough, Assistant Attorney
          General (Mark L. Earley, Attorney General, on
          brief), for appellee.


     Antonio Lamont Mozelle appeals his conviction, after a

bench trial, for possession of cocaine with intent to

distribute.    Mozelle argues that the trial court erred in

admitting a fingerprint card after a sheriff's deputy testified

she could not recall the date on which she took the fingerprint

impressions.   Mozelle also contends that the evidence was

insufficient to sustain the conviction.

     On July 21, 1998, Detective B.J. Karpowski, III, of the

Portsmouth Police Department, received a telephone call from an

unknown informant stating that "Tony Mozelle was at 2915 Shady


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
Lane cutting up a bunch of cocaine in that house."   Karpowski

knew Mozelle.    He and other detectives immediately went to 2915

Shady Lane.   When they arrived, they observed Mozelle "standing

out front with some other individuals around his car."   The

owner of the house, Mozelle's uncle, gave the detectives

permission to search the house.

     After entering the house and informing the occupants of the

reason for the search, one of the individuals in the house

directed the detectives to "look around outside on the ground."

Based on this information, Karpowski and another detective went

outside and began looking on the ground, next to a tree across

the street at another house, 2914 Shady Lane.   Karpowski found a

Herr's Sour Cream and Onion potato chip bag "concealed at the

base of the tree."   Inside the bag was a baggie containing crack

cocaine.

     Karpowski picked up the bag with his "thumb and forefinger"

and walked out into the street where Mozelle was standing.

Karposwki asked Mozelle and his companions if "anyone knew whose

bag of chips it was."   When no one would claim ownership,

Karpowski asked Mozelle, "Have you been eating any chips out

there today?"    Mozelle replied "No, sir," and Karpowski again

stated, "You haven't been eating any Herr's sour cream and onion

potato chips?"   Mozelle said, "No, sir.   I haven't had any chips

at all."   Karpowski stated, "So you haven't handled this bag at

all and there is no reason whatsoever for your fingerprints to

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be on this bag; right?"      Mozelle then replied, "Man, I ain't had

no chips.      I ain't never touched that bag, and my fingerprints

ain't on that bag."      The officers then left the scene, taking

the potato chip bag and cocaine.

        Upon arriving at the police station, Karpowski gave the

potato chip bag and the bag of cocaine to Detective P.J. Grover

who packaged the items and later sent them to the forensic unit

for analysis.      Members of the forensic unit tested the substance

found in the bag, which tested positive for cocaine. 1     They also

examined the potato chip bag for fingerprints and found three

sets of latent prints on the bag.      Print number one was a

positive match with a fingerprint card that had been taken of

"Antonio Lamont Mozelle" on June 29, 1998. 2

        On August 11, 1998, Karpowski secured a warrant for

Mozelle's arrest for possession with intent to distribute

cocaine.      The next day, he responded back to the area of 2914

Shady Lane in an unmarked car, and found Mozelle standing in the

roadway.      Karpowski advised Mozelle that he was not under arrest

and again asked Mozelle if he had touched the "[potato chip]

bag."       Mozelle stated, "I'm telling you I ain't never touched



        1
       An expert testified at trial that the cocaine contained in
the bag had an approximate street value of $1,500.
        2
       The other two fingerprints were insufficient for
comparison, and/or contained insufficient ridge detail to either
confirm or eliminate a potential match to Mozelle's fingerprint
card.

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that bag."    Karpowski then left and called for a marked unit to

arrest Mozelle.

        During trial, Deputy Sheriff Angela Clifton identified

Mozelle, testified that she took Mozelle's prints on June 29,

1998, and stated that he had signed the fingerprint card.      The

fingerprint card was admitted into evidence without objection.

When asked on cross-examination if she could identify Mozelle

after two years, Clifton stated, "I have seen him come in the

jail.    I can't say that I remember fingerprinting him on June

29, 1998, but I know who Antonio Mozelle is."    When asked, "Now,

on June 29, 1998, do you recognize this man as someone you took

fingerprints from?"    Clifton responded, "I can't do that from

two years ago."

        Mozelle objected to subsequent testimony from an expert in

latent fingerprint identification to the effect that the

fingerprint found on the potato chip bag matched the June 29,

1998 fingerprint card.    Mozelle argued, based upon Crawley v.

Commonwealth, 29 Va. App. 372, 512 S.E.2d 169 (1999), that

Clifton's testimony was insufficient to establish he was the

individual whose prints appeared on the fingerprint card.      The

trial court overruled the objection.     At the close of the

Commonwealth's case, Mozelle moved to strike alleging that the

evidence was insufficient to convict based on the quantity of

the drug, as well as the failure of identification through the

fingerprint evidence.    Mozelle argued that the fingerprint

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evidence standing alone was insufficient to support the charge

and that there was no evidence Mozelle touched or possessed the

inner bag containing the cocaine.   Mozelle also argued again

that Clifton's testimony was insufficient to establish that

Mozelle was the individual who had submitted the fingerprints

found on the June 29, 1998 fingerprint card.

     The trial court denied Mozelle's motion, finding Clifton

had stated "on that particular date that she remembers seeing

him, but from the card and the name and the person who had to

sign it, she also said she knows this man."    The trial court

stated, "You can't go back that many years and say that I know

for a fact that he is the one that I took those prints from, but

in taking everything into consideration and the fact that she

said she knows him by the name, because she's seen him back and

forth in jail," her testimony was sufficient to establish that

Mozelle was the individual whose prints were on the June 29,

1998 fingerprint card.   The trial court then convicted Mozelle

as charged.

     On appeal, Mozelle argues that the trial court erred in

overruling his objection concerning the testimony pertaining to

the fingerprint match.   Mozelle does not, as the Commonwealth

contends, contest the admissibility of the fingerprint card.     In

addition, Mozelle argues that the trial court erred in

overruling his motion to strike as there was insufficient



                               - 5 -
evidence to prove he constructively possessed the plastic bag

and the cocaine contained within the potato chip bag.

      Under familiar principles of appellate review, we examine

the evidence in the light most favorable to the Commonwealth as

the party prevailing below, granting to it all reasonable

inferences fairly deducible therefrom.     See Martin v.

Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987).

The judgment of a trial court, sitting without a jury, is

entitled to the same weight as a jury verdict and will be

disturbed only if plainly wrong or without evidence to support

it.   See id.

      Mozelle correctly points out that in Crawley we held, where

the Commonwealth proved only that the defendant's name was

similar to that found on two police fingerprint cards and that

the gender, race and height listed on the cards matched those of

the perpetrator and the person seen fleeing the scene of the

crime, the Commonwealth failed to establish identification of

the defendant beyond a reasonable doubt.     Crawley, 29 Va. App.

at 379, 512 S.E.2d at 172-73.   As we noted in Crawley, the

Supreme Court has held that "'[w]hen the Commonwealth relies

solely upon fingerprint evidence to identify a criminal agent,

it bears the burden of excluding every reasonable hypothesis of

innocence . . . .'"   Id. at 378, 512 S.E.2d at 172 (quoting

Tyler v. Commonwealth, 254 Va. 162, 166, 487 S.E.2d 221, 223

(1997)).

                                - 6 -
     Here, Clifton specifically identified Mozelle, and

testified she took the prints on the card from Mozelle on the

date indicated on the card.    She also testified that Mozelle had

signed the card.   Viewing the circumstantial evidence of

identity in the light most favorable to the Commonwealth, as we

must, we hold that it was sufficient to support the

determination of the trial court and to exclude all reasonable

hypotheses of the contributor of the fingerprints on the card as

being anyone other than appellant.

     Further, we find the evidence sufficient to support the

trial court's determination that Mozelle constructively

possessed the drugs found inside the potato chip bag.   Indeed,

to be convicted of possession, the evidence must show that

Mozelle was "aware of the presence and character of the

controlled substance."   Wright v. Commonwealth, 2 Va. App. 743,

748, 348 S.E.2d 9, 13 (1986).   "Further, he may be deemed to

have constructive possession of the substance if it was subject

to his dominion and control."    Id.

     Based upon the evidence presented, the trial court could

infer, beyond a reasonable doubt, that Mozelle was aware of the

presence and character of the drugs and that they were subject

to his dominion and control.    The evidence proved that Mozelle's

prints were on the potato chip bag, which contained the drugs.

No prints belonging to any other individual were confirmed to

have been found on the bag.    Moreover, as described by Detective

                                - 7 -
Karpowski, the bag was found "concealed" at the base of the

tree, only a short distance from Mozelle.   See Glasco v.

Commonwealth, 26 Va. App. 763, 774, 497 S.E.2d 150, 155 (1998),

aff'd, 257 Va. 433, 513 S.E.2d 137 (1999) (noting that mere

proximity to drugs is insufficient to establish possession,

although it is a circumstance which may be probative in

determining whether an accused possessed such drugs).   Finally,

Mozelle emphatically denied, on more than one occasion, that he

had eaten potato chips from the bag, or that he had ever touched

the bag.   See Lilly v. Commonwealth, 258 Va. 548, 556, 523

S.E.2d 208, 212 (1999) ("False statements by a defendant may be

probative of guilt.").

     This evidence provided sufficient "other circumstances"

which excluded any "reasonable" hypotheses of innocence.      See

Turner v. Commonwealth, 218 Va. 141, 146-47, 235 S.E.2d 357, 360

(1977); see also Clagett v. Commonwealth, 252 Va. 79, 93, 472

S.E.2d 263, 271 (1996) ("A defendant's hypothesis negating the

Commonwealth's theory of the case must be supported by some

evidence in the record and may not arise from the imagination of

the defendant or his counsel alone.").

     For these reasons, we affirm the decision of the trial

court.

                                                            Affirmed.




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