                    COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Annunziata and Senior Judge Duff
Argued at Richmond, Virginia


ROY CARLTON DAVIS
                                        MEMORANDUM OPINION * BY
v.   Record No. 0494-96-3             JUDGE ROSEMARIE ANNUNZIATA
                                            APRIL 22, 1997
COMMONWEALTH OF VIRGINIA


         FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG
                   Mosby G. Perrow, III, Judge
          Clinton R. Shaw, Jr., for appellant.

          Ruth Ann Morken, Assistant Attorney General
          (James S. Gilmore, III, Attorney General, on
          brief), for appellee.



     Following a bench trial, appellant, Roy Carlton Davis, was

convicted of possession of cocaine with intent to distribute.

Appellant contends the evidence was insufficient to support his

conviction.   We disagree and affirm his conviction.

                                 I.

     At approximately 8:00 p.m. on August 21, 1995, Officer Hise

conducted drug surveillance in an area of Lynchburg known for

drug trafficking.   At 8:35 p.m., Hise noticed appellant approach

a pedestrian on the sidewalk near 409 Harrison Street.    The two

engaged in a brief conversation before appellant walked to the

downspout of the house at 409 Harrison, retrieved a small object

and returned to the pedestrian on the sidewalk with the object

concealed in the palm of his hand.    Hise saw appellant and the
     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
pedestrian exchange objects in a manner which he did not mistake

for a handshake.   The pedestrian left, and appellant returned to

the downspout where he again picked up an object and then

returned it to the ground.    Appellant then sat on the porch steps

of 409 Harrison Street.

     At 8:37 p.m., Hise observed appellant return to the

downspout and, after looking each direction, pick up an object

and then place it down.   At 8:39 p.m., Hise observed appellant

whistle at a passing vehicle.   At 8:50 p.m., Hise saw appellant

return to the downspout, retrieve an object from the ground and

approach another individual across Harrison Street.   Hise's view

was obstructed by a fence, but within a few seconds he saw

appellant return to the porch steps.    At 8:56 p.m., Hise heard

appellant whistle and yell, "yo," at a passing vehicle which then

stopped.   Hise saw appellant return to the downspout, pick up an

object, handle it, place an object back down and approach the

vehicle.   Appellant and the vehicle's occupant engaged in a brief

conversation before the two returned to the porch steps.    Hise

stated that as many as four other people sat on the porch during

the course of these events.   Hise testified, however, that

appellant was the only person to approach the downspout area of

the house.   Hise testified that appellant's activity was

consistent with his past experience observing drug transactions

and that he believed appellant was selling cocaine.
     Hise conveyed his suspicion and a description of appellant




                                - 2 -
to Officers Poindexter, Duff and King, who arrived within

minutes.   Officer Poindexter noticed appellant on the porch steps

and observed him make a sweeping motion with his hand between his

legs as the officers approached.   She did not see an object

discarded.   Poindexter could not recall whether appellant sat

alone as the officers approached; Hise testified that appellant

sat with one other person when he contacted the officers.

Poindexter approached the downspout area but found nothing out of

the ordinary.   She then shined her flashlight under the porch and

found a baggie containing what would prove to be 1.1 grams of

cocaine resting directly beneath appellant.    Appellant stated

that the cocaine was not his.
     Officer Duff searched appellant and discovered a pager, $5

in his pocket, and $92 in his shoe.     Testifying as an expert in

drug transactions, Duff stated that the street value of a gram of

crack cocaine was between $150 and $175 and that crack was

typically purchased in ten, twenty or forty dollar units.    Duff

further testified that pagers are often used to facilitate drug

transactions, and he described that street level crack cocaine

deals often involve a brief conversation between buyer and seller

to determine a price, followed by an exchange of drugs for money.

He further stated that drug dealers often keep their drugs in a

"stash," away from the transaction, rather than on their person.

     Appellant testified in his defense and essentially refuted

the Commonwealth's case, stating, inter alia, that he used a $100




                                - 3 -
bill to purchase $3 worth of beer and carried the remaining $97

in change and that he only once walked near the downspout on the

side of the house to place a beer bottle in a trash can.     He

stated that he did not signal or approach any vehicles and that

he left the porch only to greet a friend with a handshake.    He

further maintained that the pager was not his own.

                                II.

     When considering the sufficiency of the evidence on appeal

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

favorable to the Commonwealth, granting to it all reasonable

inferences fairly deducible therefrom.     Higginbotham v.

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

review, this Court does not substitute its own judgment for that

of the trier of fact.   Cable v. Commonwealth, 243 Va. 236, 239,

415 S.E.2d 218, 220 (1992).   The trial court's judgment will not

be set aside unless it appears that the judgment is plainly wrong

or without evidence to support it.     Code § 8.01-680; Josephs v.
Commonwealth, 10 Va. App. 87, 99, 390 S.E.2d 491, 497 (1990) (en

banc).   "It is fundamental that `the credibility of witnesses and

the weight accorded their testimony are matters solely for the

fact finder who has the opportunity of seeing and hearing the

witnesses.'"   Collins v. Commonwealth, 13 Va. App. 177, 179, 409

S.E.2d 175, 176 (1991) (quoting Schneider v. Commonwealth, 230

Va. 379, 382, 337 S.E.2d 735, 736-37 (1985)).

     In this case the Commonwealth relied wholly on



                               - 4 -
circumstantial evidence to prove that appellant possessed the

cocaine found under the porch and that he intended to distribute

it.    As such, "`all necessary circumstances proved must be

consistent with guilt and inconsistent with innocence and exclude

every reasonable hypothesis of innocence.'"    Moran v.

Commonwealth, 4 Va. App. 310, 314, 357 S.E.2d 551, 553 (1987)

(citation omitted); see also Dukes v. Commonwealth, 227 Va. 119,

122, 313 S.E.2d 382, 383 (1984); Wilkins v. Commonwealth, 18 Va.

App. 293, 298, 443 S.E.2d 440, 444 (1994).    The Commonwealth,

however, "`is not required to disprove every remote possibility

of innocence, but is, instead, required only to establish guilt

of the accused to the exclusion of a reasonable doubt.'"
Cantrell v. Commonwealth, 7 Va. App. 269, 289, 373 S.E.2d 328,

338 (1988), cert. denied, 496 U.S. 911 (1990) (quoting Bridgeman

v. Commonwealth, 3 Va. App. 523, 526-27, 351 S.E.2d 598, 600

(1986)).   "The hypotheses which the prosecution must reasonably

exclude are those `which flow from the evidence itself, and not

from the imagination of defendant's counsel.'"    Id. at 289-90,

373 S.E.2d at 338-39 (quoting Black v. Commonwealth, 222 Va. 838,

841, 284 S.E.2d 608, 609 (1981)).   Whether an alternative

hypothesis is a "reasonable hypothesis of innocence" is a

question of fact.    Cantrell, 7 Va. App. at 290, 373 S.E.2d at

339.   Unless plainly wrong, a trial court's factual finding is

binding on appeal.    E.g., Naulty v. Commonwealth, 2 Va. App. 523,

527, 346 S.E.2d 540, 542 (1986).



                                - 5 -
     As appellant concedes, "[t]he Commonwealth is not required

to prove that there is no possibility that someone else may have

planted, discarded, abandoned or placed the drugs [where they are

found near an accused]."     See, e.g., Brown v. Commonwealth, 15

Va. App. 1, 10, 421 S.E.2d 877, 883 (1992).
          "To support a conviction based upon
          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 dominion and control.'"

McGee v. Commonwealth, 4 Va. App. 317, 322, 357 S.E.2d 738, 740

(1987) (quoting Drew v. Commonwealth, 230 Va. 471, 473, 338

S.E.2d 844, 845 (1986)).    Neither proximity to contraband nor

presence on the premises where it is found are alone sufficient

to establish constructive possession.       E.g., Brown, 15 Va. App.

at 9, 421 S.E.2d at 882-83.    However, both proximity and presence

are factors the trial court may consider in evaluating the

totality of circumstances.     Lane v. Commonwealth, 223 Va. 713,

716, 292 S.E.2d 358, 360 (1982); Brown, 15 Va. App. at 10, 421
S.E.2d at 883; Castaneda v. Commonwealth, 7 Va. App. 574, 584,

376 S.E.2d 82, 87 (1989).    An accused's knowledge of the presence

of contraband "may be proved by evidence of acts, declarations or

conduct of the accused from which the inference may be fairly

drawn that [the accused] knew of the existence of narcotics at

the place where they were found.'"       Hairston v. Commonwealth, 5

Va. App. 183, 186, 360 S.E.2d 893, 895 (1987) (quoting People v.



                                 - 6 -
Pigrenet, 26 Ill. 2d 224, 227, 186 N.E.2d 306, 308 (1962)).

     In light of these principles, we find that the record

contains sufficient evidence to support the trial court's finding

beyond a reasonable doubt that appellant possessed the cocaine

found under the porch and that he intended to distribute it.    The

record supports only one explanation for appellant's activity in

relation to the downspout and his engagement with passing

motorists and pedestrians: appellant was dealing drugs.    Officer

Hise testified that appellant engaged numerous passers-by in

conjunction with his repeated trips to retrieve objects near a

downspout.   Hise witnessed a transaction between appellant and a

pedestrian that he did not mistake for a handshake.   Hise

testified that appellant's activity was consistent with other

drug transactions he had witnessed.    The activity described by

Hise was consistent with Officer Duff's generic description of a

drug transaction and his description of a drug dealer's use of a

"stash."   No reasonable, contrary hypothesis to explain

appellant's activity flows from the evidence.   Appellant's

testimony, that he left the porch only once to discard a beer

bottle and that he engaged no motorists and greeted only one

pedestrian with a handshake, was wholly contradicted by the

testimony of the officer.   The trial court was entitled to

conclude that appellant's conflicting testimony concerning his

activity was untruthful and to infer from that determination that

appellant was concealing his guilt.    See Speight v. Commonwealth,




                               - 7 -
4 Va. App. 83, 88, 354 S.E.2d 95, 98 (1987).

     The evidence of appellant's drug dealing is a significant

circumstance establishing both that he possessed the cocaine

found under the porch and that he intended to distribute it.     The

conclusion that appellant constructively possessed the cocaine

found under the porch is further supported by Officer

Poindexter's testimony.   Poindexter observed appellant make a

sweeping motion with his hand as if to discard something between

his legs as the officers approached him; she then found the

cocaine lying directly beneath appellant's seat on the porch.

See Collins, 13 Va. App. at 178-79, 409 S.E.2d at 175-76.      The

testimony of the officers established that appellant shared the

porch steps with at most one other person at the time the

officers approached, not six as appellant described.    Moreover,

Poindexter testified that she saw no one other than appellant

make a sweeping motion with his hand as if to discard something

under the porch.   The conclusion that appellant intended to

distribute the cocaine is further supported by the presence of an

unusual amount of money, reflecting, by inference, profit from

sales, and the quantity of cocaine found, exceeding by nearly

four times the amount typically purchased in an individual

transaction.   See Servis v. Commonwealth, 6 Va. App. 507, 524,

371 S.E.2d 156, 165 (1988).

     The decision of the trial court is accordingly affirmed.

                                                          Affirmed.




                               - 8 -
Benton, J., dissenting.

     The Supreme Court of Virginia has consistently held that

convictions may not be based upon speculation, surmise, or

conjecture.
          It is, of course, a truism of the criminal
          law that evidence is not sufficient to
          support a conviction if it engenders only a
          suspicion or even a probability of guilt.
          Conviction cannot rest upon conjecture. The
          evidence must be such that it excludes every
          reasonable hypothesis of innocence.


Smith v. Commonwealth, 192 Va. 453, 461, 65 S.E.2d 528, 533

(1951); see also Hyde v. Commonwealth, 217 Va. 950, 955, 234

S.E.2d 74, 78 (1977).   That holding is grounded in the

constitutional principle that "the Due Process Clause protects

the accused against conviction except upon proof beyond a

reasonable doubt of every fact necessary to constitute the crime

with which [the accused] is charged."   In re Winship, 397 U.S.

358, 364 (1970).

     "To support a conviction based upon 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

dominion and control.'"   Drew v. Commonwealth, 230 Va. 471, 473,

338 S.E.2d 844, 845 (1986) (citation omitted).   Where the

Commonwealth relies upon circumstantial evidence to prove guilt,

that circumstantial evidence must be "wholly inconsistent with




                               - 9 -
the innocence of [the] defendant."       Foster v. Commonwealth, 209

Va. 326, 330, 163 S.E.2d 601, 604 (1968).      In other words,

"'[w]here inferences are relied upon to establish [a factual

element of the offense], they must point to [that fact] so

clearly that any other conclusion would be inconsistent

therewith.'"     Dotson v. Commonwealth, 171 Va. 514, 518, 199 S.E.

471, 473 (1938) (citation omitted).      Thus, "circumstances of

suspicion, no matter how grave or strong, are not proof of guilt

sufficient to support a [guilty] verdict" beyond a reasonable

doubt.   Powers v. Commonwealth, 182 Va. 669, 676, 30 S.E.2d 22,

25 (1944).

     The officer who was conducting the surveillance that evening

testified that before Roy Carlton Davis sat on the steps, Davis

walked several times to the drain pipe at the corner of the

house, picked up something, and gave it to other people.

However, the officer could not identify the item.      Although the

surveillance officer was watching Davis as Davis sat on the

steps, he did not see Davis holding any item.      Moreover, when the

surveillance officer commanded the other officers to enter the

area, he directed them to search the area by the drain pipe.

When they searched the area of the drain pipe they found no drugs

or contraband.

     Davis was sitting on the steps when the officers arrived and

went to the drain pipe.    Another person was also sitting on the

steps.   Indeed, two to four people had earlier sat on the steps



                                - 10 -
at various times.   The surveillance officer was unsure of the

conduct of those other people because his attention was primarily

drawn to Davis.

     Although the officer who went to search the drain pipe

testified that she saw Davis make a "sweeping" motion with his

hands between his legs while he was sitting on the steps, she saw

nothing in Davis' hand.    After she went to the drain pipe and

found nothing there, she returned to the steps of the house,

shone her flashlight under the steps and discovered a plastic

baggie of cocaine on the ground.
     This evidence failed to prove that Davis was aware of the

presence of the cocaine under the steps or that he had dominion

and control of the cocaine.   Davis' presence on the steps does

not prove constructive possession of the cocaine found under the

steps.   "Mere proximity to a controlled drug is not sufficient to

establish dominion and control."    Drew, 230 Va. at 473, 338

S.E.2d at 845.

     The majority's conclusion that Davis must have thrown the

drugs on the ground under the steps is merely conjecture and

based only on the suspicion that he was hiding drugs near the

drain pipe.   However, none of the officers who testified saw

anything in Davis' hand.   The majority speculates that Davis had

something in his hands.    From that speculation, it then infers

that he threw that something under the steps.   The principle is

well established, however, that a conclusion that an accused is



                               - 11 -
guilty "cannot rest upon conjecture or suspicion."    Dixon v.

Commonwealth, 162 Va. 798, 801, 173 S.E. 521, 522 (1934).

Indeed, the evidence must do more than suggest even a

"'probability of guilt[;] . . . the evidence must go further and

exclude every reasonable hypothesis except that of guilt.'"      Id.

 (citation omitted).

     The evidence proved a reasonable hypothesis that explained

the presence of the cocaine under the steps.    The uncontradicted

evidence established that the house and the steps were located in

a "high drug area."   Two to four other people were on the steps

that night and other people were in the area.   In addition, the

officer testified as follows:
          A lot of times drug dealers will keep their
          drugs away from their person actually
          stashing the drugs at a separate location,
          sometimes under a rock. Some open air drug
          markets are heavily trashed with litter.
          Narcotics are kept in chip bags, brown pieces
          of paper that can be balled up and dropped
          with the trash so it doesn't look suspicious
          or out of the ordinary. That is to keep the
          narcotics off of the person while they
          conduct business. They can then go to the
          stash as they need the cocaine.


Thus, the presence of drugs that appeared to be unattended was

explained.

     When the speculation is excluded, the evidence does not even

make it more likely that Davis, rather than the other individuals

on the steps or in the area, used the space under the steps to

hide the drugs.   The possibility that Davis discarded the cocaine

is merely one of several hypotheses.   However, "[w]henever


                              - 12 -
'evidence leaves indifferent which of several hypotheses is true,

or merely establishes only some finite probability in favor of

one hypothesis, such evidence does not amount to proof of guilt

beyond a reasonable doubt.'"   Pemberton v. Commonwealth, 17 Va.

App. 651, 654, 440 S.E.2d 420, 422 (1994) (citation omitted); see

also Hairston v. Commonwealth, 5 Va. App. 183, 186-87, 360 S.E.2d

893, 895 (1987).   "The guilt of a party is not to be inferred

because the facts are consistent with his guilt, but they must be

inconsistent with his innocence."   Cameron v. Commonwealth, 211

Va. 108, 110-11, 175 S.E.2d 275, 276 (1970).

     Because the evidence in this case creates only a suspicion

of guilt, I would reverse the conviction.   Therefore, I dissent.




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