                   COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Moon, Judges Coleman and Bray
Argued at Norfolk, Virginia


ROBERT LEE BOLEY
                                         MEMORANDUM OPINION * BY
v.         Record No. 1943-95-1           JUDGE RICHARD S. BRAY
                                              JULY 23, 1996
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
                   William F. Rutherford, Judge
          Michael D. Eberhardt for appellant.

          John K. Byrum, Jr., Assistant Attorney
          General (James S. Gilmore, III, Attorney
          General, on brief), for appellee.



     Robert Lee Boley (defendant) was convicted in a bench trial

for possessing (1) cocaine with intent to distribute, (2)

marijuana with intent to distribute, (3) a firearm, and (4) a

firearm by a convicted felon.   On appeal, defendant contends that

the evidence was insufficient to support the convictions.    We

agree and reverse each.

     The parties are fully conversant with the record, and we

recite only those facts necessary to a disposition of this

appeal.

     In accordance with well established principles, we assess

the sufficiency of the evidence viewing the record in the light

most favorable to the Commonwealth, granting to it all reasonable

inferences fairly deducible therefrom.    Martin v. Commonwealth, 4
     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
Va. App. 438, 443, 358 S.E.2d 415, 418 (1987).    The judgment of a

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

weight as a jury verdict and will be disturbed only if plainly

wrong or without evidence to support it.    Id.

     The record discloses that on November 18, 1994, Norfolk

police found defendant, undressed and showering, in the hall

bathroom of an apartment being searched pursuant to a warrant. 1

Three additional persons, including defendant's brother, were in

various rooms of the apartment.    The search revealed two

revolvers, a semiautomatic pistol, a plastic bag containing

marijuana, several boxes of ammunition, approximately $760 in

cash, and a plastic bag containing 73 empty plastic bags located

in bedrooms and closets.   Additionally, on or near a "speaker"

resting on the living room floor, police found cocaine, a digital

pager, and approximately 140 "color-coded" plastic bags.     On the

floor beside the speaker, police discovered a "vinyl case" for

electronic scales, $90 in cash, two cellular telephones and

batteries, a key ring with several keys (one of which unlocked

the apartment door), and a shoe containing thirteen individual

plastic bags of marijuana.   A pager and "some jewelry" were also

found "on a box in the hallway."
     Defendant was advised of his Miranda rights, and admitted
ownership of a "cellular phone, money, keys, and some

jewelry . . . laying on the floor next to the speaker in the
     1
      The validity of this search warrant is not at issue.




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front room."   These articles had been found to the "left of the

speaker," a "foot or less" from the cocaine and "six or seven

feet" from the closeted guns.

     Tameka Ellis, the lessee of the apartment, was not present

during the search.   Various papers, including identification

documents, and personal belongings located in a bedroom,

suggested that defendant's brother resided in the apartment.      A

Commonwealth witness had observed defendant in the apartment on

two separate occasions over a period of six months.
          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) (quoting Powers v. Commonwealth, 227 Va. 474, 476, 316

S.E.2d 739, 740 (1984)).   "Suspicious circumstances, including

proximity to a controlled drug, are insufficient to support a

conviction."   Behrens v. Commonwealth, 3 Va. App. 131, 135, 348

S.E.2d 430, 432 (1986).    However, while "mere proximity to the

drugs is insufficient to establish possession, and occupancy of

the [premises] does not give rise to a presumption of possession,

Code § 18.2-250, both are factors which may be considered in

determining whether a defendant possessed drugs."    Josephs v.
Commonwealth, 10 Va. App. 87, 100, 390 S.E.2d 491, 498 (1990) (en

banc).   These principles of constructive possession are also



                                - 3 -
applicable in prosecutions for offenses related to firearm

possession.   Blake v. Commonwealth, 15 Va. App. 706, 708-09, 427

S.E.2d 219, 221 (1993).

     When the Commonwealth relies wholly on circumstantial

evidence to prove constructive possession, "'all necessary

circumstances proved must be consistent with guilt and

inconsistent with innocence and exclude every reasonable

hypothesis of innocence.'"   Burchette v. Commonwealth, 15 Va.

App. 432, 434, 425 S.E.2d 81, 83 (1992) (citations omitted).
     Here, defendant was found showering in a bath accessed by a

hallway in the apartment, and the evidence established only that

he entered the living room and bathroom.    No drugs or firearms

were found on or near his person, and he engaged in no conduct

suggestive of an awareness that contraband was present on the

premises.   No evidence proved that he had an ownership or

possessory interest in the apartment.   Thus, save defendant's

presence, the proximity of his property to contraband, and a key

to the apartment on his key ring, nothing in the record related

him to the offenses.   While highly suspicious, these

circumstances are insufficient to prove, to the exclusion of

every reasonable hypothesis of innocence, that the drugs and

weapons were subject to defendant's dominion and control.
     Accordingly, we reverse the convictions.

                                           Reversed and dismissed.




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