                     COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Lemons and Senior Judge Cole
Argued at Richmond, Virginia


REGINALD D. HAYSPELL, SOMETIMES KNOWN AS
 REGINALD DARRELL HAYSPELL
                                       MEMORANDUM OPINION * BY
v.        Record No. 2541-97-2         JUDGE DONALD W. LEMONS
                                          FEBRUARY 9, 1999
COMMONWEALTH OF VIRGINIA


              FROM THE CIRCUIT COURT OF BRUNSWICK COUNTY
                         James A. Luke, Judge
             H. Benjamin Vincent (Vincent Law Firm, on
             brief), for appellant.

             Linwood T. Wells, Jr., Assistant Attorney
             General (Mark L. Earley, Attorney General, on
             brief), for appellee.



     Reginald Darrell Hayspell appeals his convictions for

possession of cocaine and possession of marijuana with intent to

distribute.    On appeal, he argues that the evidence was

insufficient to support his convictions.    We disagree and affirm

both convictions.
                              BACKGROUND

     On December 4, 1996, members of the Meherrin Drug Task Force

in the Brunswick County Sheriff's Department, including

Investigator Anthony Gibbs, executed a search warrant at a

residence owned by the parents of Reginald D. Hayspell,

appellant.    The search warrant instructed Gibbs to search

Hayspell's person as well as his parents' residence.
     *
      Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
     When Gibbs entered the residence, he saw Hayspell and his

mother walking down the stairs.    Hayspell's sister, aunt and a

male cousin were also present, and his father arrived during the

execution of the warrant.   Gibbs climbed the stairs and entered a

bedroom, the only room on the left side of the hallway.      Gibbs

observed a dresser, a nightstand, a baby crib, a shoebox located

by the doorway, men's shoes, jewelry including a "men's fashion

type" gold chain, and men's clothing.      On the dresser, Gibbs

noticed crack cocaine lying in plain view.      On the nightstand

next to the bed, Gibbs saw a class ring engraved with the name

"Reginald" on the outside, and a "financial binder" with some

forms and documents.   In the shoebox located by the door

approximately six feet from the nightstand and dresser, Gibbs

found marijuana and electronic scales.      Gibbs testified that the

scales were of the type used to weigh narcotics.
     After the marijuana was discovered, Hayspell's cousin stated

to Gibbs that it belonged to him.       Gibbs stated that Hayspell's

cousin was taken to the sheriff's office, where he recanted his

admission stating that he would "not tak[e] the blame for nobody"

and that "he was told to take the blame."      On August 28, 1997,

Hayspell was found guilty in a bench trial of possession of

cocaine and possession of marijuana with intent to distribute.

                   SUFFICIENCY OF THE EVIDENCE

     "When the sufficiency of the evidence is an issue on appeal,

an appellate court must view the evidence and all reasonable



                                  -2-
inferences fairly deducible therefrom in the light most favorable

to the Commonwealth."   Cheng v. Commonwealth, 240 Va. 26, 42, 393

S.E.2d 599, 608 (1990) (citing Stockton v. Commonwealth, 227 Va.

124, 145-46, 314 S.E.2d 371, 385 (1984)).   On appeal, the

decision of a trial court sitting without a jury is afforded the

same weight as a jury's verdict and will not be disturbed unless

plainly wrong or without evidence to support it.   King v.

Commonwealth, 217 Va. 601, 604, 231 S.E.2d 312, 315 (1977).
     To prove ownership of a controlled substance, the

Commonwealth may prove either actual or constructive possession.

 See Barlow v. Commonwealth, 26 Va. App. 421, 494 S.E.2d 901

(1998); White v. Commonwealth, 24 Va. App. 446, 452, 482 S.E.2d

876, 879 (1997) (citations omitted).
          To establish "possession" in the legal sense,
          it is not sufficient to simply show actual or
          constructive possession of the drug by the
          defendant. The Commonwealth must also
          establish that the defendant intentionally
          and consciously possessed it with knowledge
          of its nature and character.


Burton v. Commonwealth, 215 Va. 711, 713, 213 S.E.2d 757, 758-59
(1975) (citations omitted).   "Knowledge of the presence and

character of the controlled substance may be shown by evidence of

the acts, statements or conduct of the accused."   Eckhart v.

Commonwealth, 222 Va. 447, 450, 281 S.E.2d 853, 855 (1981).
          To support a conviction based on 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



                                -3-
          dominion and control.



Glasco v. Commonwealth, 26 Va. App. 763, 774, 497 S.E.2d 150, 155

(1998) (citations omitted).

     Although proximity alone is insufficient to establish

possession, it may be considered as a factor in determining if a

defendant possessed narcotics.    See Glasco, 26 Va. App. at 774,

497 S.E.2d at 155; Anderson v. Commonwealth, 26 Va. App. 1, 12,

492 S.E.2d 826, 832 (1997).   The fact finder must look to the

"totality of the circumstances" in its determination of whether

the accused constructively possessed the object in question.     See
Glasco, 26 Va. App. at 774, 497 S.E.2d at 155.

     In Spivey v. Commonwealth, 23 Va. App. 715, 479 S.E.2d 543

(1997), the defendant appealed her convictions for possession of

narcotics and possession of narcotics with intent to distribute,

arguing in part that the evidence was insufficient to prove

possession.   The trial court's consideration of the "totality of

the circumstances disclosed by the evidence" included:

          (1) The defendant ran from the living room
          to the kitchen as police entered the home.

          (2) "Contemporary documents, personal to the
          defendant and addressed to the subject
          premises, were discovered on a desk in the
          living room, together with cocaine."

          (3)   A "big piece" of crack cocaine was
          visible "in plain view on a dresser located
          in a bedroom, together with woman's clothing,
          underwear, and jewelry."

          (4) Numerous bags of marijuana were
          discovered in the bedroom, living room, and


                                  -4-
          kitchen.


Id. at 725, 479 S.E.2d at 548.   Holding that "[t]he only

reasonable hypothesis arising from such evidence is that

defendant constructively possessed the cocaine and marijuana

found in plain view and stashed throughout her residence, aware

of the nature and character of the drugs," we affirmed her

convictions.   Id. at 725, 479 S.E.2d at 548.

     In Shurbaji v. Commonwealth, 18 Va. App. 415, 444 S.E.2d 549

(1994), the defendant appealed his conviction for possession of

cocaine with intent to distribute, arguing in part that the

evidence was insufficient to prove that he constructively

possessed cocaine.   The defendant denied that he resided in the

house, and argued that the Commonwealth was precluded from

proving possession because he was not present during the search.

     In Shurbaji, the Commonwealth's case of constructive
possession was necessarily based on circumstantial evidence.    See

id. at 423, 444 S.E.2d at 553.   We noted that "[c]ircumstantial

evidence is as competent and is entitled to as much weight as

direct evidence, provided it is sufficiently convincing to

exclude every reasonable hypothesis except that of guilt."    Id.
at 423, 444 S.E.2d at 553 (citations omitted).   We examined the

evidence considered by the fact finder in Shurbaji's case:
          (1) that the defendant often paid the
          mortgage on the residence and was usually at
          the residence early in the morning;

          (2) solely men's clothing found in the
          master bedroom, and the defendant's sister's
          testimony that he kept personal belongings



                                 -5-
          there;

          (3) his sister's testimony that he
          "periodically stayed overnight and slept in
          the master bedroom";

          (4) "in plain view or on readily accessible
          dresser drawers and night stands, the police
          found a significant amount of cocaine and
          drug paraphernalia," along with the
          defendant's passport, his wallet containing
          his credit and bank cards, personal checks
          signed by him, and "current personal papers
          and envelopes addressed to him at the
          searched residence";

          (5) a jacket in the closet which contained a
          prescription bottle bearing his name, and a
          "snow-seal" filled with cocaine powder;
          (6) the presence of the key to a safety
          deposit box registered in the defendant's
          name, and used solely by him;

          (7) and "nothing in the room [to] indicate[]
          that anyone other than the [defendant] had
          any interest in the items found."

Id. at 424, 444 S.E.2d at 554.


     In affirming his conviction, we held, "[w]e agree with the

Commonwealth that the evidence in this case clearly proved that

[Shurbaji] owned and constructively possessed the cocaine and

paraphernalia seized by the police from the master bedroom of the

residence, and that such possession was with the intent to

distribute."   Id. at 424, 444 S.E.2d at 554.
     In support of his argument that the Commonwealth failed to

prove that he constructively possessed the cocaine found in the

bedroom, Hayspell cites Torian v. Commonwealth, No. 1770-96-2

(Va. Ct. App. May 27, 1997), and Norton v. Commonwealth, No.



                                 -6-
1897-95-2 (Va. Ct. App. June 25, 1996) (two unpublished opinions

of this Court); Burchette v. Commonwealth, 15 Va. App. 432, 425

S.E.2d 81 (1992); Drew v. Commonwealth, 230 Va. 471, 338 S.E.2d

844 (1986); Behrens v. Commonwealth, 3 Va. App. 131, 348 S.E.2d

430 (1986); Garland v. Commonwealth, 225 Va. 182, 300 S.E.2d 783

(1983); and Clodfelter v. Commonwealth, 218 Va. 619, 230 Va. 471

(1977).    However, each may be distinguished from the instant

case.    In Clodfelter, Norton and Behrens, each defendant was

convicted of possession of narcotics in a rented hotel room

rather than where any one of the defendants resided.    In each of

these three cases, the defendant's conviction was reversed

because the reviewing court held that there was insufficient

evidence for the trial court to find that drugs found in the

hotel rooms were constructively possessed by the individual

defendant.    Clodfelter, 218 Va. at 623-24, 238 S.E.2d at 822;
Norton, No. 1897-95-2, slip op. at 2; Behrens, 3 Va. App. at

136-38, 348 S.E.2d at 433-34.

        Similarly, in Drew, Garland, Burchette and Torian, the
reviewing court held that there was insufficient evidence to

support the defendant's drug possession convictions.    In Drew,

the Supreme Court of Virginia held that the defendant's mere

proximity to the residence on the night of the search and his

occupancy of it were insufficient to prove that he possessed

cocaine found inside.    Drew, 230 Va. at 473-74, 338 S.E.2d at

845.    In Garland, the Court reversed the defendant's conviction



                                  -7-
of possession of cocaine.   The Court held that the presence of

men's clothing, an expired motor vehicle operator's license, and

a lease agreement naming him and another person as lessors was

insufficient to sustain his conviction where there was no

testimony offered to show that the defendant currently lived at

the residence.   Garland, 225 Va. at 184, 300 S.E.2d at 784-85.

In Torian, we reversed defendant's conviction for possession of

cocaine, holding that the defendant's mere presence in the house,

but not in any of the bedrooms where the cocaine was found, was

insufficient to show that she possessed the cocaine.   Torian, No.
1770-96-2, slip op. at 2.   In Burchette, we reversed the

defendant's conviction for possession of marijuana, holding that

ownership of a car in which marijuana was found was alone

insufficient to show that the defendant exercised dominion and

control over its contents at the time the contraband was

discovered.   Burchette, 15 Va. App. at 437-38, 425 S.E.2d at 85.

     In this case, the trial court found that a reasonable

inference could be drawn from the evidence that the bedroom where

the drugs were discovered was Hayspell's.   When Gibbs entered the

home of Hayspell's parents, Hayspell and his mother were

descending the staircase.   In the bedroom at the top of the

stairs, Gibbs found articles of men's clothing, shoes, and

jewelry, including a class ring engraved with the name "Reginald"

on the nightstand.   The room also contained pictures of Hayspell

and a folder of personal financial papers identified to him and



                                -8-
to his girlfriend, Kelly Gregory.     Based upon all of the items

found in the bedroom and described by Gibbs, we hold that it was

reasonable for the fact finder to infer that the bedroom belonged

to Hayspell.   The fact finder could also reasonably infer that

Hayspell had knowledge of the contents of the room he occupied




                                -9-
and that he exercised dominion and control over the items found

within the room.   His convictions are affirmed.

                                                        Affirmed.




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