                    COURT OF APPEALS OF VIRGINIA


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


DERRICK O. RAMSEY
                                           MEMORANDUM OPINION * BY
v.   Record No. 2958-98-2                   JUDGE LARRY G. ELDER
                                              OCTOBER 19, 1999
COMMONWEALTH OF VIRGINIA


           FROM THE CIRCUIT COURT OF THE CITY OF HOPEWELL
                    James F. D'Alton, Jr., Judge

           Brad P. Butterworth (Butterworth & Waymack,
           on brief), for appellant.

           Shelly R. James, Assistant Attorney General
           (Mark L. Earley, Attorney General; Ruth M.
           McKeaney, Assistant Attorney General, on
           brief), for appellee.


     Derrick O. Ramsey (appellant) appeals from his bench trial

conviction for distribution of cocaine pursuant to Code

§ 18.2-248. 1   On appeal, he contends the evidence was

insufficient to prove he distributed cocaine or possessed it

with an intent to distribute.    We agree, and we reverse his

conviction and remand for conviction and sentencing on the

lesser offense of possession of cocaine.



     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
     1
       Appellant also was convicted for possession of marijuana
pursuant to Code § 18.2-250.1. He does not challenge that
conviction on appeal.
                                I.

                               FACTS

     On February 25, 1998, Detective Michael Whittington met

with a confidential informant, searched him and gave him a

marked twenty-dollar bill.   At about 7:15 p.m., the informant

proceeded to 614 Victoria Street, Apartment 57.    Whittington saw

the informant go to the door of Apartment 57 but did not see

whether he entered it.   When the informant returned about ten

minutes later, he gave Whittington "[s]uspected crack cocaine in

a plastic bag."   Whittington again searched the informant and

did not find the marked twenty-dollar bill.    With this

information, Whittington sought and obtained a search warrant

for Apartment 57.

     At about 3:36 a.m., Whittington and other officers arrived

at the apartment to execute the warrant and discovered the door

had been barricaded with two foot lockers.    In a back bedroom,

Whittington found Shatisha Monroe, appellant's girlfriend, on

the right side of the bed; appellant, dressed only in shorts or

sweatpants, was "hanging out the [bedroom] window."    Police

later learned that appellant was "a fugitive from Petersburg."

     On the headboard on the left side of the bed, the officers

saw in plain view two clear plastic baggies, one containing five

rocks of crack cocaine totaling 1.094 grams and the other

containing 3.4 grams of marijuana.     Appellant said the cocaine

and marijuana were his and that Monroe "didn't have anything to

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do with it."    In a closet in the bedroom, the officers found a

man's black leather jacket in a size that would have fit

appellant.   In the pocket of the jacket, they found $313 in

five-, ten- and twenty-dollar bills.    Among the bills was the

marked twenty-dollar bill Whittington had given to the informant

several hours earlier.   From the dresser in the bedroom, the

officers seized two functional electronic pagers and a Sears

credit card bearing appellant's name.   The credit card had

expired in 1996 and had never been signed by appellant.     Current

bills on the dresser bore only Monroe's name.   In the kitchen,

the officers found a small electronic scale with powder residue

on it and "boxes of . . . sandwich bags that had the corners cut

off of them."   Whittington testified that the scale and baggie

corners were indicative of drug distribution.

     The officers found a child and Monroe's brother, a young

male juvenile, asleep in a second bedroom.

     Appellant offered evidence that Monroe lived in the

apartment with Monroe's and appellant's four-year-old son and

Monroe's two brothers, ages sixteen and eighteen.   Monroe's son

and one of her brothers occupied the other bedroom, and the

other brother slept on the couch.   Monroe testified that

appellant did not live there.   On February 25, appellant paged

her, said he needed to talk to her because he was going to turn

himself in, and arrived at her apartment at about 1:00 or

1:30 a.m.    Monroe said that the black jacket belonged to her

                                - 3 -
brother, Orlando, who "used to stay with [her] sometimes," and

that the money in the jacket, which totaled no more than $290,

belonged to her.    She said the credit card in appellant's name

was one appellant gave to her so that she could get things for

their child.    She kept the card in her room on the mirror and

had never used it.

     Appellant took the stand and testified that he and Monroe

were in the bedroom with the television on.    He heard banging at

the front door but never heard the police identify themselves,

and said he was merely looking out the window to see who was

there.   He admitted he was a convicted felon but denied knowing

the drugs were in the room and denied being in the apartment or

selling drugs from the apartment earlier in the day.    Appellant

claimed he never admitted the drugs were his and asked

Whittington to charge him rather than Monroe with the drug

offense because he was concerned about what would happen to his

son if Monroe was arrested.    He denied owning the jacket in

which the marked bill was found.    His testimony about the other

events of that night roughly paralleled Monroe's.

                                  II.

                               ANALYSIS

     Under familiar principles of appellate review, we examine

the evidence in the light most favorable to the Commonwealth,

granting to it all reasonable inferences fairly deducible

therefrom.     See Martin v. Commonwealth, 4 Va. App. 438, 443, 358

                                 - 4 -
S.E.2d 415, 418 (1987).   In its role of judging witness

credibility, the fact finder is entitled to disbelieve the

self-serving testimony of the accused and to conclude that the

accused is lying to conceal his guilt.     See Speight v.

Commonwealth, 4 Va. App. 83, 88, 354 S.E.2d 95, 98 (1987) (en

banc).

     Appellant was convicted for violating Code § 18.2-248,

which provides that "it shall be unlawful for any person to

manufacture, sell, give, distribute, or possess with intent to

manufacture, sell, give or distribute a controlled substance or

an imitation controlled substance."    Any element of a

crime--such as distribution or intent to distribute--may be

proved by circumstantial evidence.     See, e.g., Servis v.

Commonwealth, 6 Va. App. 507, 524, 371 S.E.2d 156, 165 (1988).

Such 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."

Coleman v. Commonwealth, 226 Va. 31, 53, 307 S.E.2d 864, 876

(1983).

     Here, the evidence, viewed in the light most favorable to

the Commonwealth, establishes that appellant constructively

possessed the cocaine found on the headboard in the master

bedroom, for he admitted to Detective Whittington that the

cocaine was his.   However, assuming without deciding that the

evidence also is sufficient to establish that the informant

                               - 5 -
purchased cocaine in Apartment 57 at 7:15 p.m. on February 25, 2

insufficient evidence links appellant to that sale or

establishes that he intended to distribute the cocaine in his

possession.   The evidence establishes, at best, that appellant

was present in the apartment with cocaine in his possession at

least five hours after the sale.   Even if the trial court

rejected the testimony of appellant and Monroe and concluded

that appellant was lying to conceal his guilt, such a conclusion

does not constitute affirmative evidence of guilt, and the

remaining evidence was insufficient to exclude all reasonable

hypotheses of appellant's innocence.

     No evidence proved that appellant owned or constructively

possessed the coat, its contents or the items found in the

kitchen.   The mere presence of the baggies and scales in the

kitchen and the marked twenty-dollar bill in the coat in the

bedroom closet while appellant possessed the cocaine in plain

view in the bedroom does not exclude the reasonable hypothesis

that the paraphernalia and the coat containing the marked bill

belonged to someone other than appellant.   First, both Monroe

and Monroe's teenaged brother were present in the apartment when

the police executed the warrant.   Second, the only items in the

bedroom linking appellant to the premises did not exclude the


     2
       The record contains no indication that the substance was
ever tested and no evidence explaining Whittington's basis for
suspecting the substance was crack cocaine. The informant did
not testify.

                               - 6 -
reasonable hypothesis that he did not reside there and arrived,

as he and Monroe testified, only after the sale of cocaine had

occurred at least five hours earlier.   Other than his presence,

the only evidence affirmatively linking appellant to the

premises was a credit card in his name which had expired over a

year earlier and had never been signed by him.   No evidence

established that he kept clothes, important papers or other

personal possessions there, and all recent bills were in

Monroe's name.

     Third, evidence that the front door of the apartment had

been barricaded with footlockers and that appellant may have

attempted to flee through the bedroom window when the police

entered also does not exclude all reasonable hypotheses of

innocence.   Although attempted flight is a circumstance which

may be probative of guilt, see, e.g., Hope v. Commonwealth, 10

Va. App. 381, 386, 392 S.E.2d 830, 833 (1990) (en banc), it had

little probative value in this case; the evidence here

establishes that appellant both was guilty of possessing cocaine

and marijuana and was a fugitive wanted by the Petersburg

police, so any attempt at flight could reasonably have been

related to one of these offenses and not to any fear of being

apprehended for distributing or intending to distribute cocaine.

Finally, the Commonwealth offered no evidence that the quantity

of cocaine appellant possessed was consistent with distribution

and inconsistent with personal use.    Therefore, although the

                               - 7 -
evidence established that appellant possessed the cocaine, it

failed to exclude all reasonable hypotheses of appellant's

innocence on the distribution or intent to distribute charge.

     For these reasons, we hold the evidence was insufficient to

support appellant's conviction for distributing cocaine or

possessing it with the intent to distribute pursuant to Code

§ 18.2-248.   Therefore, pursuant to appellant's request, we

reverse his conviction and remand to the trial court for

conviction and sentencing for the lesser offense of possession

of cocaine.   See Fierst v. Commonwealth, 210 Va. 757, 762-63,

173 S.E.2d 807, 812 (1970) (reversing bench trial conviction for

"possession of more than 25 grains of illegally acquired

narcotic drugs" and remanding for "new sentencing" for

possessing no more than 25 grains).

                                            Reversed and remanded.




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