                      COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Elder and Senior Judge Coleman
Argued at Chesapeake, Virginia


JAMES DOUGLAS GRAVES, JR.
                                           MEMORANDUM OPINION * BY
v.   Record No. 3348-01-1                   JUDGE LARRY G. ELDER
                                              JANUARY 14, 2003
COMMONWEALTH OF VIRGINIA


        FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
                     Randolph T. West, Judge

          Thomas W. Carpenter (Thomas W. Carpenter,
          P.C., on brief), for appellant.

          Kathleen B. Martin, Assistant Attorney
          General (Jerry W. Kilgore, Attorney General,
          on brief), for appellee.


     James Douglas Graves, Jr., (appellant) appeals from his

bench trial conviction for possession of cocaine in violation of

Code § 18.2-250.   On appeal, he contends the evidence was

insufficient to prove he constructively possessed cocaine found

in a pair of boots which he was not wearing at the time but

which he subsequently admitted were his.    We hold the evidence

was sufficient, and we affirm.

     When considering the sufficiency of the evidence on appeal

of a criminal case, this Court views the evidence in the light

most favorable to the Commonwealth, granting to the evidence all


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
reasonable inferences fairly deducible therefrom.    Higginbotham

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

     "To convict a person of possession of illegal drugs, 'the

Commonwealth must prove that the defendant was aware of the

presence and character of the drugs and that he intentionally

and consciously possessed them.'"    Castaneda v. Commonwealth, 7

Va. App. 574, 583, 376 S.E.2d 82, 86 (1989) (en banc) (quoting

Andrews v. Commonwealth, 216 Va. 179, 182, 217 S.E.2d 812, 814

(1975)).   Possession need not be actual, exclusive or lengthy in

order to support a conviction under Code § 18.2-250; instead,

the statute criminalizes possession of illegal drugs of any

duration that is constructive or joint.    Gillis v. Commonwealth,

215 Va. 298, 302, 208 S.E.2d 768, 771 (1974); Josephs v.

Commonwealth, 10 Va. App. 87, 99, 390 S.E.2d 491, 497 (1990) (en

banc).

     Constructive possession of illegal drugs may be proven by

"evidence of acts, statements, or conduct of the accused or

other facts or circumstances which tend to show that the

[accused] was aware of both the presence and character of the

substance and that it was subject to his dominion and control."

Drew v. Commonwealth, 230 Va. 471, 473, 338 S.E.2d 844, 845

(1986).    Neither close proximity to illegal drugs nor occupancy

of the premises on which they are found, standing alone, amounts

to "possession" of such drugs under Code § 18.2-250; however,

both are factors that may be considered in determining whether
                              - 2 -
possession occurred in a particular case.   Castaneda, 7 Va. App.

at 583-84, 376 S.E.2d at 87.   Such circumstantial evidence may

be sufficient to prove possession, as long as it excludes all

reasonable hypotheses of innocence flowing from the evidence.

Higginbotham, 216 Va. at 352-53, 218 S.E.2d at 537.

     We hold the evidence, viewed in the light most favorable to

the Commonwealth, was sufficient to prove appellant exercised at

least joint constructive possession of the cocaine residue on

the spoon.   Police discovered the spoon in a sock located in a

pair of men's work boots they found beneath a chest at the foot

of the bed in the upstairs master bedroom of appellant's

residence.   Appellant admitted the boots were his, and he wore

them to the police station following his arrest.

     When police arrived to execute the search warrant for

appellant's residence, they found appellant "at the foot of

. . . the staircase" of his two-story residence.   Appellant had

no shoes or boots on at the time, and no evidence established

that a pair of shoes or boots was near appellant when the police

entered.

     Although appellant's wife and another man were inside the

residence with appellant when the police first arrived, all

three were on the first floor when the police entered the

residence, and no one had an opportunity to place anything in

the boot after the police arrived.   Thus, no evidence supported

a hypothesis that someone placed the spoon there out of fear
                              - 3 -
that the police entering to execute the search warrant would

find it on his or her person, and the only reasonable hypothesis

was that appellant placed the spoon in the shoes, which he

admitted were his, at some time prior to the arrival of the

police.

     Further, appellant implicitly indicated an awareness of the

presence of the spoon and residue in his boot.   The evidence

established that when Detective D.E. Flythe took the boots

downstairs, the following exchange took place:

          APPELLANT:   Where are you going with my
          boots?

          DETECTIVE FLYTHE:    These are your boots?

          APPELLANT:   Yeah.

          DETECTIVE FLYTHE: You know you're under
          arrest for possession of cocaine?

          APPELLANT:   Those aren't my boots.

Appellant, when told he was under arrest for possession of

cocaine, immediately disclaimed ownership of the boots, showing

an awareness of the fact that it was the cocaine residue inside

the boots that led to his arrest for possessing cocaine.

     For these reasons, we hold the only hypothesis flowing from

the evidence is that appellant exercised constructive possession

of the cocaine residue on the spoon found inside his boot.

Thus, we affirm the challenged conviction.

                                                           Affirmed.


                               - 4 -
Benton, J., dissenting.

     The trial judge convicted Graves on circumstantial evidence

of constructive possession.   To prove that an accused

constructively possessed a controlled substance, "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 [accused] was aware of both the presence

and 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).   Furthermore, Code § 18.2-250

could not be clearer:    "Upon the prosecution of a person [for

possession of a controlled substance], ownership or occupancy of

premises . . . upon or in which a controlled substance was found

shall not create a presumption that such person either knowingly

or intentionally possessed such controlled substance."

          [W]ell established principles apply to
          testing the sufficiency of circumstantial
          evidence . . . .

             "[I]f the proof relied upon by the
          Commonwealth is wholly circumstantial, as it
          here is, then to establish guilt beyond a
          reasonable doubt all necessary circumstances
          proved must be consistent with guilt and
          inconsistent with innocence. They must
          overcome the presumption of innocence and
          exclude all reasonable conclusions
          inconsistent with that of guilt. To
          accomplish that, the chain of necessary
          circumstances must be unbroken and the
          evidence as a whole must satisfy the guarded
          judgment that both the corpus delicti and
          the criminal agency of the accused have been
          proved to the exclusion of any other
                               - 5 -
           rational hypothesis and to a moral
           certainty."

              But, circumstances of suspicion, no
           matter how grave or strong, are not proof of
           guilt sufficient to support a verdict of
           guilty. The actual commission of the crime
           by the accused must be shown by evidence
           beyond a reasonable doubt to sustain his
           conviction.

Clodfelter v. Commonwealth, 218 Va. 619, 623, 238 S.E.2d 820,

822 (1977) (citations omitted).

     The evidence failed to prove which of the three persons in

the downstairs living room had been in the upstairs bedroom

where Graves's work boots were located.   No evidence established

when Graves arrived home or when he had last worn his work

boots.   No evidence proved the sock found in the boots was

Graves's sock.   Although, as the majority notes, none of the

three individuals had the opportunity to hide the spoon in the

boots after the police arrived, no evidence proved one of them

could not have put the spoon in the boots before the police

arrived.   Furthermore, we cannot naively presume drug users

attempt to hide their drug paraphernalia only from the police.

The evidence failed to exclude the possibility that Graves's

wife or the visitor possessed the cocaine residue found on the

spoon.

     I do not agree that Graves's statements implicitly

indicated an awareness of the existence of the cocaine.   The

detective who seized the boots testified that other officers

                              - 6 -
removed the spoon and sock from the boots before he took the

boots downstairs where Graves, Graves's wife, and the other man

were detained.   The detective testified that he carried the

boots downstairs "[t]o get [Graves] to say that they were his

boots."   The detective further testified as follows:

           Q Did you at any point inform him that you
           had found anything in the boots?

           A   Yes, sir.

           Q   Okay.   When was that?

           A Right after he said, "Where are you going
           with my boots?"

           Q Had he been shown the object prior to
           that?

           A   No, sir.

           Q Had the group been shown the object prior
           to that?

           A   No, sir.

           Q Had the group or Mr. Graves individually
           been shown any objects recovered in this
           search?

           A As I said, no, sir, not that I recall,
           sir.

           Q When you came downstairs with the boots,
           would it be fair to characterize Mr. Graves'
           reaction as one of surprise that you had his
           boots?

           A Mr. Graves was a little hostile that day,
           so he was probably mad at us.

     Within the context of these events, the evidence merely

proved that Graves attempted to disassociate himself from the

boots after the detective informed him they found a spoon with
                                - 7 -
cocaine residue in the boots.    Furthermore, the only link that

potentially connects Graves and the cocaine is his ownership of

the boots.    That link, however, is insufficient to prove he

possessed the cocaine.

                [I]n order for ownership or occupancy of
             property . . . to be sufficient to support
             the inference that the owner or occupant
             also possessed contraband that was located
             on the property or in the [property], the
             owner or occupant must be shown to have
             exercised dominion and control over the
             premises and to have known of the presence,
             nature, and character of the contraband at
             the time of such ownership or occupancy.

Burchette v. Commonwealth, 15 Va. App. 432, 435, 425 S.E.2d 81,

83-84 (1992).    The evidence did not prove Graves was aware of

the spoon with the cocaine residue before the detective informed

him of it.

        While suspicious, the evidence in the record fails to

exclude the reasonable hypothesis that Graves's wife or friend

used the cocaine in the bedroom and deposited the spoon in the

sock.    "While a conviction may be properly based upon

circumstantial evidence, suspicion or even probability of guilt

is not sufficient."     Gordon v. Commonwealth, 212 Va. 298, 300,

183 S.E.2d 735, 737 (1971).

        For these reasons, I would reverse the conviction




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