                  COURT OF APPEALS OF VIRGINIA



Present: Judges Baker, Fitzpatrick and Annunziata
Argued at Alexandria, Virginia


ADONIS G. HICKS
                                       MEMORANDUM OPINION *
v.   Record No. 1924-96-4           BY JUDGE JOSEPH E. BAKER
                                        NOVEMBER 18, 1997
COMMONWEALTH OF VIRGINIA


            FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
                      J. Howe Brown, Judge
          Crystal A. Meleen, Senior Assistant Public
          Defender (Office of the Public Defender, on
          brief), for appellant.

          Ruth Ann Morken, Assistant Attorney General
          (Richard Cullen, Attorney General, on brief),
          for appellee.



     Adonis G. Hicks (appellant) was convicted in a jury trial

for possession of cocaine with intent to distribute.    On appeal,

he contends that (1) the evidence was insufficient to prove that

he was aware of the presence and character of the cocaine and

that it was subject to his dominion and control, and (2) the

trial court erroneously refused to respond to the jury's question
                                                                 1
regarding the applicability of parole to appellant's sentence.
For the reasons that follow, we affirm appellant's conviction.




     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
     1
      Appellant does not challenge the validity of the entry or
search of the residence.
                      SUFFICIENCY OF THE EVIDENCE

     Under familiar principles of appellate review, we examine

the evidence in the light most favorable to the Commonwealth,

granting to it all reasonable inferences fairly deducible

therefrom.     See Traverso v. Commonwealth, 6 Va. App. 172, 176,

366 S.E.2d 719, 721 (1988).    The jury's verdict will not be

disturbed unless plainly wrong or without evidence to support it.

 See id.     The credibility of a witness, the weight accorded the

testimony, and the inferences to be drawn from proven facts are

matters solely for the fact finder's determination.       See Long v.

Commonwealth, 8 Va. App. 194, 199, 379 S.E.2d 473, 476 (1989).

The fact finder is not required to believe all aspects of a

witness' testimony; it may accept some parts as believable and

reject other parts as implausible.       See Pugliese v. Commonwealth,

16 Va. App. 82, 92, 428 S.E.2d 16, 24 (1993).
          [P]ossession of a controlled substance may be
          actual or constructive. "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)) (other citation omitted).      Possession

"need not always be exclusive.    The defendant may share it with

one or more."     Josephs v. Commonwealth, 10 Va. App. 87, 99, 390



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S.E.2d 491, 497 (1990) (en banc).

     Although mere proximity to the drugs is insufficient to

establish possession, it is a factor that may be considered in

determining whether the accused possessed drugs.     See Brown v.

Commonwealth, 15 Va. App. 1, 9, 421 S.E.2d 877, 882 (1992) (en

banc).   Ownership or occupancy of the premises on which the drugs

are found is also a circumstance probative of possession.     See

Drew, 230 Va. at 473, 338 S.E.2d at 845 (citing Code § 18.2-250).

 Thus, in resolving this issue, the Court must consider "the

totality of the circumstances disclosed by the evidence."     Womack

v. Commonwealth, 220 Va. 5, 8, 255 S.E.2d 351, 353 (1979).

     Circumstantial evidence of possession is sufficient to

support a conviction provided it excludes every reasonable

hypothesis of innocence.     See, e.g., Tucker v. Commonwealth, 18

Va. App. 141, 143, 442 S.E.2d 419, 420 (1994).    However, "[t]he

Commonwealth need only exclude reasonable hypotheses of innocence

that flow from the evidence, not those that spring from the

imagination of the defendant."     Hamilton v. Commonwealth, 16 Va.

App. 751, 755, 433 S.E.2d 27, 29 (1993).    Whether an alternative

hypothesis of innocence is reasonable is a question of fact, see

Cantrell v. Commonwealth, 7 Va. App. 269, 290, 373 S.E.2d 328,

339 (1988), and a determination by the fact finder, therefore, is

binding on appeal unless plainly wrong.     See Traverso, 6 Va. App.

at 176, 366 S.E.2d at 721.

     In this case, the only reasonable hypothesis flowing from



                                 - 3 -
the evidence, viewed in the light most favorable to the

Commonwealth, is that appellant was aware of the presence and

character of the cocaine and exercised dominion and control over

it.   When the police arrived at the residence with the warrant

for appellant's arrest, appellant's mother confirmed that he

resided there but was not at home.      She then led them to a

bedroom she identified as appellant's.     In a closet in that

bedroom, the police found a set of scales with white powder

residue and a piece of crack cocaine weighing 0.195 grams on the

shelf beside the scales.   Appellant's mother "verified that that

was definitely the Defendant's room."
      Appellant telephoned while the officers were present and was

advised that the officers had a warrant for his arrest, to which

appellant responded, "if it's an arrest warrant, you can't look

in my personal papers and you can't search my coat."     After

obtaining a search warrant, the police found a tan winter coat in

appellant's size in the closet in which the scales had been

found.   The coat's pockets contained a bag of 23.669 grams of

cocaine and two pay stubs bearing appellant's name and covering

two pay periods for the month prior to the search.     Elsewhere in

the room, the officers found a variety of personal papers bearing

appellant's name, including multiple job applications, a resume,

other pay stubs, school diplomas, a traffic summons and a

Virginia identification card.

      The trial court correctly concluded that appellant's




                                - 4 -
statement regarding the search of his coat and personal papers

was sufficient to show that appellant was aware of the presence

and character of the cocaine in his coat and on the shelf above

his coat and that he exercised dominion and control over it.    The

jury was likewise entitled to conclude that this was the only

reasonable hypothesis flowing from all the evidence.   Although

appellant's mother testified at trial that others had access to

the room and that appellant stayed there only occasionally, the

jury, as the finder of fact, was free to disregard her testimony

as incredible.    See Pugliese, 16 Va. App. at 92, 428 S.E.2d at

24.

          INSTRUCTING THE JURY ON THE POSSIBILITY OF PAROLE

      Appellant contends that the trial court erroneously refused,

in response to a question from the jury during deliberations, 2 to

instruct them on the inapplicability of parole to appellant's

sentence.   The court responded simply, "You must set the sentence

you find to be appropriate under the circumstances and not

concern yourselves with what may happen afterward."

      This assignment of error is controlled by Mosby v.
Commonwealth, 24 Va. App. 284, 482 S.E.2d 72 (1997), in which we

held that "in non-capital felony cases a trial judge is not

required to instruct the jury that the defendant, if convicted,

will be ineligible for parole."    Id. at 286, 482 S.E.2d at 72;

      2
      The jury asked, "What part of the sentence must be served
before possibility of parole?"




                                - 5 -
see Walker v. Commonwealth, 25 Va. App. 50, 60-67, 486 S.E.2d

126, 131-35 (1997).   A defendant has no due process right under

Simmons v. South Carolina, 512 U.S. 154 (1994), 3 to such an

instruction.   See Mosby, 24 Va. App. at 288-90, 482 S.E.2d at

73-74.   This principle applies equally to formal instructions

given prior to jury deliberation and questions asked by the jury

after deliberations have begun.

     For these reasons, we affirm appellant's conviction.
                                                         Affirmed.




     3
      Simmons requires such an instruction only when the
Commonwealth argues future dangerousness in capital cases.     See
Mosby, 24 Va. App. at 286, 290, 482 S.E.2d at 72, 74.




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