                  COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Willis and Bray
Argued at Richmond, Virginia


KENNETH CHARLES CLEVELAND

v.        Record No. 1551-94-3          MEMORANDUM OPINION * BY
                                     JUDGE JERE M. H. WILLIS, JR.
COMMONWEALTH OF VIRGINIA                  FEBRUARY 13, 1996


         FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG
                   Mosby G. Perrow, III, Judge
          James Hingeley, Public Defender (Office of
          the Public Defender, on brief), for
          appellant.

          Robert H. Anderson, III, Assistant Attorney
          General (James S. Gilmore, III, Attorney
          General, on brief), for appellee.



     On appeal from his convictions of possession of cocaine and

possession of a firearm while possessing cocaine, Kenneth Charles

Cleveland contends that the evidence is insufficient to support

his conviction of possession of cocaine and, thus, his conviction

for possession of a firearm while possessing cocaine.     We agree

and reverse the judgment of the trial court.

     On February 3, 1994, Lynchburg police officers executed a

search warrant at the home of Carroll Turner and Charles Snead.

When the police entered the house, they found Cleveland and Steve

Mavilia in the kitchen.    Neither man lived at the residence.

Both were standing with their backs to the police.   Cleveland

stood "maybe a little bit further than arm's length away from" a
     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
bar area in the kitchen and Mavilia stood behind him.   The

officers saw, in plain view, a beer can on the counter about four

feet from Cleveland.   "[The can] was crimped in the center and it

had holes poked into it," and smoke was rising from it.

Subsequent analysis showed residue on the can was cocaine.

      The officers ordered Cleveland and Mavilia onto the floor.

As Cleveland got down on the floor, one of the officers saw him

pull what appeared to be a weapon from his waistband and lie on

it.   The officer seized the weapon, a 9 mm. handgun.
      Vickie Matthews testified that Cleveland had accompanied her

to Turner's house to recover money that she had previously lent

to Susan Cash, who was then living with Turner.    Ms. Matthews

testified that Cleveland left Turner's house to get change and

had returned only a few minutes before the police executed the

search warrant.

      Cleveland testified that he had purchased the handgun

several days earlier "for target practice and stuff."   He

testified that he was armed at the time of his arrest because he

had been "target practicing" earlier in the day.   He testified

that the beer can was not on the counter when he first entered

the house, but when he returned from the store, he saw it

"smoking" on the countertop.   He denied that the beer can was his

and that he had used it to inhale cocaine.

      "Where the sufficiency of the evidence is challenged on

appeal, the court must consider the evidence in the light most




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favorable to the Commonwealth, giving to it all reasonable

inferences fairly deducible therefrom."     Brown v. Commonwealth, 5

Va. App. 489, 491, 364 S.E.2d 773, 774 (1988).    The "judgment of

a trial court sitting without a jury is entitled to the same

weight as a jury verdict and will not be disturbed on appeal

unless plainly wrong or without evidence to support it."     Id.

(citations omitted).
     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.' While proximity to a controlled
     substance is insufficient alone to establish
     possession, it is a factor to consider when determining
     whether the accused constructively possessed drugs.

Pemberton v. Commonwealth, 17 Va. App. 651, 654, 440 S.E.2d 420,

422 (1994) (citations omitted).

     Although the evidence proved that the residue on the beer

can was cocaine and that Cleveland was in the room with the

"smoking" can, it was insufficient to prove that Cleveland

constructively possessed the can or the cocaine.    He asserted no

"dominion and control" over the can.    No cocaine was found on his

person.   Another person was essentially as close to the can as

Cleveland.   No evidence proved that Cleveland was aware of the

contents of the can or of its use.     Thus, the Commonwealth failed

to carry its burden of proving beyond a reasonable doubt that

Cleveland was aware of the "presence and character " of the

cocaine, and that it was subject to his "dominion and control."


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Id.

      The judgment of the trial court is reversed and the charges

are ordered dismissed.

                                         Reversed and dismissed.




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