                     COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Annunziata and Overton
Argued at Norfolk, Virginia


ALFONZA WYCHE, JR.
                                          MEMORANDUM OPINION * BY
v.   Record No. 2729-97-1               JUDGE ROSEMARIE ANNUNZIATA
                                             JANUARY 26, 1999
COMMONWEALTH OF VIRGINIA


         FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
                       Randolph T. West, Judge
           Robert W. Jones, Jr. (Jones & Jones, P.C., on
           brief), for appellant.

           H. Elizabeth Shaffer, Assistant Attorney
           General (Mark L. Earley, Attorney General, on
           brief), for appellee.



     Alfonza Wyche ("appellant") appeals his convictions under

Code §§ 18.2-250 and 18.2-308.4 for:    (1) possession of cocaine,

and (2) possession of a firearm while in possession of cocaine,

respectively.   Appellant contends the evidence was insufficient

to establish his guilt beyond a reasonable doubt.   We disagree

and affirm.

     When the sufficiency of evidence is challenged on appeal, we

must view the evidence undergirding a conviction in the light

most favorable to the Commonwealth.    Higginbotham v.

Commonwealth, 216 Va. 349, 352, 318 S.E.2d 534, 537 (1975).     "An

appellate court must discard all evidence of the accused that

conflicts with that of the Commonwealth and regard as true all

     *
      Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
credible evidence favorable to the Commonwealth and all fair

inferences reasonably deducible therefrom."       Lea v. Commonwealth,

16 Va. App. 300, 303, 429 S.E.2d 477, 479 (1993).

     Viewed in this light, the following facts were established

by the evidence.   On April 7, 1997, officers of the Newport News

police department executed a search warrant at 1120 23rd Street

in Newport News, which authorized them to search the premises and

all persons found there.   Police described the premises as "the

largest open air drug market in the city," and the constant

source of drug-related incidents.       Appellant resided in the

one-bedroom, downstairs apartment of 1120 23rd Street.      Appellant

had lived in the apartment for about three or four months.         As

police approached the premises, they observed several individuals

seated on the front porch; appellant was seated on a stool just

inside the front screen door.   Three juveniles were also found in

the downstairs apartment's living room.
     In the course of the search of the premises, Detective Best

found six "packs" of heroin wrapped in a piece of white paper on

top of an open toolbox a few feet away from where appellant sat

at the doorway.    In the downstairs bedroom, Best also found a

rock of cocaine lying unwrapped and in plain view on the bed's

flat headboard and various amounts of cash in three separate
           1
drawers.

     1
      Best found $38 in one drawer, $126 in another, and an
unidentified amount in a third.




                                - 2 -
     Another officer, Detective Stevenson, seized appellant at

the doorway and directed him to the downstairs bedroom, which

appellant had identified as his.    While searching appellant in

the bedroom, Stevenson asked if he kept any weapons or drugs

there.    Appellant directed Stevenson to a loaded .357 caliber

revolver under his bed.   Appellant claimed that a brother,

engaged in a domestic dispute, had placed the gun there for

safekeeping.   Stevenson found approximately $300 of cash in

appellant's wallet, $65 of cash in a front pocket of appellant's

pants, and a pager.
     At trial, appellant testified that he knew nothing about the

drugs found in the bedroom, stating that the downstairs apartment

belonged to a brother, that he was staying there with him, and

that he slept on the couch in the living room, but kept clothes

in the bedroom where the cocaine was found.   Appellant further

testified that two of the juveniles found in the downstairs

living room were a nephew and niece, that they were visiting him

at the time, and that they had access to the entire house.     There

was no evidence regarding how long these individuals had been in

the apartment or what they were doing prior to the arrival of

police.

     We will not reverse the trial court's judgment unless it is

plainly wrong or without evidence to support it.   Code

§ 8.01-680.    To obtain a conviction of possession of a controlled

substance, the Commonwealth may prove either actual or




                                - 3 -
constructive possession.   White v. Commonwealth, 24 Va. App. 446,

452, 482 S.E.2d 876, 879 (1997).     Under a constructive possession

theory, "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."     Powers v. Commonwealth,

227 Va. 474, 476, 316 S.E.2d 739, 740 (1984).    Proof of the

presence of contraband on premises owned or occupied by an

accused is insufficient, standing alone, to prove constructive

possession.   Code § 18.2-250.   Although such evidence is

probative, it is only a circumstance that may be considered with

the other evidence.   Tucker v. Commonwealth, 18 Va. App. 141,

144, 442 S.E.2d 419, 421 (1994).     Further, the duration of

possession is immaterial, and the defendant need not be in

exclusive possession to sustain a conviction.     Clodfelter v.

Commonwealth, 218 Va. 619, 622, 238 S.E.2d 820, 822 (1977);
Archer v. Commonwealth, 26 Va. App. 1, 12, 492 S.E.2d 826, 832

(1997).

     "Circumstantial evidence is sufficient to support a

conviction as long as it excludes every reasonable hypothesis of

innocence."   Tucker, 18 Va. App. at 143, 442 S.E.2d at 420.

"When, from the circumstantial evidence, 'it is just as likely,

if not more likely,' that a 'reasonable hypothesis of innocence'

explains the accused's conduct, the evidence cannot be said to




                                 - 4 -
rise to the level of proof beyond a reasonable doubt."

Littlejohn v. Commonwealth, 24 Va. App. 401, 414, 482 S.E.2d 853,

859 (1997) (quoting Haywood v. Commonwealth, 20 Va. App. 562,

567-68, 458 S.E.2d 606, 609 (1995)).    The Commonwealth need not

"exclude every possible theory or surmise," but only those

hypotheses "which flow from the evidence itself, and not from the

imagination of defendant's counsel."    Cantrell v. Commonwealth, 7

Va. App. 269, 289-90, 373 S.E.2d 328, 338-39 (1988) (citations

omitted).
     We find the evidence is sufficient to sustain appellant's

conviction beyond a reasonable doubt.   Police found a rock of

unwrapped cocaine lying in plain view on the headboard of

appellant's bed while executing a search warrant in the

apartment, which was located in a house described as the largest

open air drug market in Newport News.   Indeed, police also found

a quantity of heroin on the premises.   Appellant kept his

personal property in the room where police found the drugs and

readily identified the hidden location of a gun, evidencing his

familiarity with the room and its contents.   There was no

evidence that anyone other than appellant had been in the bedroom

prior to the discovery of drugs within it.    Police also found

several bundles of cash in appellant's bedroom, and two bundles

of cash and a pager on appellant's person, evidence generally

associated with drug-distribution activities.    See Glasco v.
Commonwealth, 26 Va. App. 763, 775, 497 S.E.2d 150, 156 (1998);




                              - 5 -
White v. Commonwealth, 25 Va. App. 662, 668, 492 S.E.2d 451, 454

(1997) (en banc).   Finally, the trial court was entitled to

reject appellant's testimony professing ignorance of the

existence of the drugs in his bedroom and infer that appellant

lied to conceal his guilt.   Price v. Commonwealth, 18 Va. App.

760, 768, 446 S.E.2d 642, 647 (1994).   See Speight v.

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

(stating that the trial court's finding as to the credibility of

a witness stands on the same footing as the verdict of a jury and

cannot be disturbed unless plainly wrong or without evidence to

support it).
     We accordingly affirm the convictions.

                                                         Affirmed.




                               - 6 -
Benton, J., dissenting.

     To support on appeal a conviction based upon constructive

possession of 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).   Based upon evidence that proved only that cocaine was

found in the room "identified as . . . [Alfonza] Wyche's

bedroom," the majority upholds the convictions for possession of

cocaine and possession of cocaine while simultaneously possessing

a firearm.    However, the legislature has unequivocally determined

that in Virginia "ownership or occupancy of premises . . . in

which a controlled substance was found shall not create a

presumption that such person either knowingly or intentionally

possessed such controlled substance."       Code § 18.2-250.
     The officer who obtained the search warrant described the

building as follows:
          Q: And the house that you're talking about
          there, 1120 - 23rd Street, it has -- when you
          come in the foyer, you come in the main door,
          the front door of the apartment, where you
          found Mr. Wyche, there's a stairway leading
          upstairs into what has been made into an
          apartment?

             A:   That's correct.

             Q: And you go down, I guess a hallway beside
             the stairwell to get to the back apartment?



                                    - 7 -
             A:    That's correct.

             Q: And with the exception of what you read
             in the affidavit, you don't know whose
             apartment the upstairs apartment and
             downstairs apartment belong to, from your own
             personal knowledge?

             A: Based on information that I received from
             the informant, I knew who both of the
             individuals were, but I did not have any
             personal knowledge.


The Commonwealth's evidence does not prove who was the

leaseholder of the first floor apartment that was searched.

Although the officer who obtained the search warrant testified

that, "[b]ased on the information in the [search warrant]

affidavit, [he] was able to ascertain it was the apartment of

. . . Wyche's girlfriend," the trial judge ruled that this "was

hearsay evidence" and disregarded it.
     The evidence is undisputed, however, that when the officers

arrived to search the apartment, Wyche was sitting on a stool at

the front door of the building which contained the two

apartments.       Wyche was not inside the apartment; he was in the

foyer at the building's entrance in full view of the officers.

The officers initially detained Wyche in the foyer where he was

sitting.

     Other officers entered the apartment on the first floor of

the building and detained three juveniles who were inside the

apartment.    During the search of the apartment, one of the

officers found a "rock" of cocaine in plain view on the headboard

of a double bed.      The officer testified that the room was



                                     - 8 -
"identified as . . . Wyche's bedroom."    The apartment contained

only one bedroom.

     Even if the room was Wyche's bedroom, no evidence proved

when Wyche was last in the bedroom.     Wyche made no statements

that indicated he was aware of the presence of the cocaine in the

bedroom.   At trial, he testified that "it's my brother's

apartment.   I was just staying with him."   Wyche further

testified that he "slept in the living room on the couch" and

kept his clothes in the bedroom.    He denied knowing the cocaine

was in the bedroom.
     The Supreme Court has consistently ruled that an accused may

not be convicted of possessing narcotics found in a place that

the accused occupies where the evidence proved (1) that the

accused was not present in the place where the narcotics were

found and (2) that other persons had access to the premises.

See, e.g., Drew v. Commonwealth, 230 Va. 471, 338 S.E.2d 844

(1986); Powers v. Commonwealth, 227 Va. 474, 316 S.E.2d 739

(1984); Garland v. Commonwealth, 225 Va. 182, 300 S.E.2d 783
(1983); Clodfelter v. Commonwealth, 218 Va. 619, 238 S.E.2d 820

(1977); Huvar v. Commonwealth, 212 Va. 667, 187 S.E.2d 177

(1972); Crisman v. Commonwealth, 197 Va. 17, 87 S.E.2d 796

(1955).    See also Burchette v. Commonwealth, 15 Va. App. 432, 425

S.E.2d 81 (1992).

     Wyche was arrested outside the apartment.     In failing to

prove beyond a reasonable doubt when Wyche was in the bedroom,




                                - 9 -
the evidence does not otherwise establish that Wyche was aware of

the presence and character of the cocaine and that he

intentionally and consciously possessed it or exercised dominion

and control over it.     See Drew, 230 Va. at 473, 338 S.E.2d at

845; Powers, 227 Va. at 476, 316 S.E.2d at 740.     Failing to prove

that Wyche had exclusive access to the bedroom and failing to

account for all those who may have had access to the location

where the cocaine was found, the Commonwealth cannot rely on an

inference from these circumstances that Wyche knew of the

presence of the cocaine.     See Best v. Commonwealth, 222 Va. 387,

389, 282 S.E.2d 16, 17 (1981) (per curiam).

        No presumption that Wyche possessed the drugs arises from

the officer's testimony that the drugs were found in the bedroom

that someone identified to the officer as Wyche's bedroom.     Code

§ 18.2-250.    Furthermore, although the majority notes that

opinions of this Court have considered an accused's possession of

cash and pagers as factors in judging whether an accused intended

to distribute a controlled substance found in his or her

possession, that proposition is irrelevant to the facts of this

case.    Wyche did not actually possess the cocaine.   More

significant, however, the trial judge ruled that the evidence was

insufficient to prove Wyche intended to distribute cocaine, and

the judge convicted Wyche of simple possession.    The majority

cites no authority, and the Commonwealth produced no evidence,

which suggests that Wyche's possession of cash and a pager tends



                                - 10 -
to prove that he possessed the cocaine found in the bedroom.
             It is well settled in Virginia that to
          justify conviction of a crime, it is not
          sufficient to create a suspicion or
          probability of guilt, but the evidence must
          establish the guilt of an accused beyond a
          reasonable doubt. It must exclude every
          reasonable hypothesis except that of guilt.
          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).   "'[C]ircumstances of suspicion, no matter how grave or

strong, are not proof . . . sufficient to support a verdict of

guilty.'"   Crisman, 197 Va. at 21, 87 S.E.2d at 799 (citation

omitted); see also Stover v. Commonwealth, 222 Va. 618, 624, 283

S.E.2d 194, 197 (1981).    The evidence in this record creates only

a mere suspicion and does not exclude the reasonable hypothesis

that someone other than Wyche placed the cocaine in the room and

possessed it.

     For these reasons, I would reverse the convictions and

dismiss the prosecution.




                               - 11 -
