                       COURT OF APPEALS OF VIRGINIA


Present: Judges Annunziata, Bumgardner and Frank
Argued at Salem, Virginia


KENNETH JAMES HUNTER
                                          MEMORANDUM OPINION * BY
v.   Record No. 1483-01-3                  JUDGE ROBERT P. FRANK
                                              OCTOBER 1, 2002
COMMONWEALTH OF VIRGINIA


            FROM THE CIRCUIT COURT OF CAMPBELL COUNTY
                 J. Samuel Johnston, Jr., Judge

          Jesse W. Meadows III, for appellant.

          Leah A. Darron, Assistant Attorney General
          (Jerry W. Kilgore, Attorney General, on
          brief), for appellee.


     Kenneth James Hunter (appellant) was convicted in a bench

trial of possession of cocaine, in violation of Code § 18.2-250.

On appeal, he contends the trial court erred in finding the

evidence was sufficient to convict him.   More particularly, he

maintains the evidence did not show he exercised dominion and

control over the cocaine.   Appellant further contends, since he is

not guilty of this offense, the trial court erred in revoking a

previously suspended sentence, based on the present conviction.

For the reasons stated, we affirm the conviction and revocation.

     "On appeal, 'we review the evidence in the light most

favorable to the Commonwealth, granting to it all reasonable

     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
inferences fairly deducible therefrom.'"   Archer v. Commonwealth,

26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997) (quoting Martin v.

Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987)).

     In his brief, appellant concedes the evidence was sufficient

to show he was aware of the presence and character of the cocaine.

Our sufficiency analysis, therefore, is limited to whether the

evidence proved the cocaine was subject to appellant's dominion

and control.

          To convict a person of possession of illegal
          drugs "the Commonwealth must prove that the
          defendant was aware of the presence and
          character of the drugs and that he
          intentionally and consciously possessed
          them." Andrews v. Commonwealth, 216 Va.
          179, 182, 217 S.E.2d 812, 814 (1975).
          Possession may be actual or constructive.
          Peterson v. Commonwealth, 5 Va. App. 389,
          402, 363 S.E.2d 440, 448 (1987).
          Constructive possession exists when "an
          accused has dominion or control over the
          drugs." Andrews, 216 Va. at 182, 217 S.E.2d
          at 814. Such "possession may be proved by
          'evidence of acts, declarations or conduct
          of the accused from which the inference may
          be fairly drawn that he knew of the
          existence of narcotics at the place where
          they were found.'" Id. (citations omitted).

Castaneda v. Commonwealth, 7 Va. App. 574, 583, 376 S.E.2d 82,

86 (1989) (en banc).

     "Proof of constructive possession necessarily rests on

circumstantial evidence; thus, '"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,

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425 S.E.2d 81, 83 (1992) (quoting Garland v. Commonwealth, 225

Va. 182, 184, 300 S.E.2d 783, 784 (1983) (quoting Carter v.

Commonwealth, 223 Va. 528, 532, 290 S.E.2d 865, 867 (1982))).

           However, "the 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 a
           hypothesis of innocence is reasonable is a
           question of fact, Cantrell v. Commonwealth,
           7 Va. App. 269, 290, 373 S.E.2d 328, 339
           (1988), and a finding by the trial court is
           binding on appeal unless plainly wrong,
           Martin v. Commonwealth, 4 Va. App. 438, 443,
           358 S.E.2d 415, 418 (1987).

Glasco v. Commonwealth, 26 Va. App. 763, 773-74, 497 S.E.2d 150,

155 (1998), aff'd, 257 Va. 433, 513 S.E.2d 137 (1999).

     "The credibility of the witnesses and the weight accorded

the evidence are matters solely for the fact finder who has the

opportunity to see and hear that evidence as it is presented."

Sandoval v. Commonwealth, 20 Va. App. 133, 138, 455 S.E.2d 730,

732 (1995).   The trier of fact is not required to accept a

party's evidence in its entirety, Barrett v. Commonwealth, 231

Va. 102, 107, 341 S.E.2d 190, 193 (1986), but is free to believe

or disbelieve in part or in whole the testimony of any witness,

Rollston v. Commonwealth, 11 Va. App. 535, 547, 399 S.E.2d 823,

830 (1991).   "The trial court was entitled to disbelieve

[appellant's] explanation and conclude he lied to conceal his

guilt."   Dunbar v. Commonwealth, 29 Va. App. 387, 394, 512

S.E.2d 823, 827 (1999).

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     We agree with appellant that proximity alone is not

sufficient to prove possession.   However, proximity "is a

circumstance which may be probative in determining whether an

accused possessed such drugs.   Ownership or occupancy of the

[location] in which drugs are found is likewise a circumstance

probative of possession."   Glasco, 26 Va. App. at 774, 497

S.E.2d at 155 (citations omitted).      To determine possession, the

court considers the totality of the circumstances.      White v.

Commonwealth, 24 Va. App. 446, 454, 482 S.E.2d 876, 879-80

(1997).

     The record belies appellant's argument that the only

evidence suggesting the cocaine was under his dominion and

control was his proximity to the drug.     The police found

appellant in a closet in the spare room of an apartment leased

by his girlfriend, Tabitha Dawson. 1    They found a book bag

approximately three inches from his feet and cocaine on the

shelf no more than two feet from his head.     The book bag

contained two handguns, a box of ammunition, several pairs of

latex gloves, a pair of black nylon stockings that were cut in

two, a roll of duct tape, and scales commonly used to weigh small

amounts of marijuana.   Digital scales and more cocaine were found

in the other bedroom where Quentin Haskins was apprehended.     Other


     1
       Appellant and Dawson were married prior to the trial.
Dawson testified as a defense witness.



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small baggies of cocaine and $100 in cash were found in the

kitchen.   Appellant had $531 in cash and three baggies of

marijuana on his person.

     The fact that the evidence proved Haskins likely possessed

the same cocaine that was found in the closet does not preclude

appellant from also possessing the drug.     The possession of

drugs need not be exclusive, but may be shared with another.

Archer v. Commonwealth, 225 Va. 416, 418, 303 S.E.2d 863, 863-64

(1983); Gillis v. Commonwealth, 215 Va. 298, 301-02, 208 S.E.2d

768, 771 (1974).   The trial court, sitting as the fact finder,

found appellant jointly possessed the drugs with Haskins.

     Further, the trial court could conclude appellant occupied

the premises, given his characterization of the apartment as

"our apartment."   Some of his personal property was also in the

room where police found appellant.      Also, appellant had $531 on

his person.    See White, 24 Va. App. at 453, 482 S.E.2d at 879

(possession of a significant sum of cash supports a finding of

possession).

     Given the testimony, the fact finder could properly infer

appellant and Haskins, jointly, sold drugs at a hotel.

Appellant told the police that he knew Haskin had cocaine when

they drove to the hotel, and he saw Haskins sell drugs to "an

unknown white male."   Upon completion of the transaction, they

returned to the apartment together.     Haskins handled the drugs,



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and the trial court could conclude appellant maintained the cash

proceeds of the sale.

     The trial court could infer further that, when the police

arrived, both appellant and Haskins attempted to hide and to

protect the drugs from seizure by the police.   They jointly

controlled the drugs to avoid detection and seizure.

     While appellant and Dawson testified the $531 in his pocket

was her salary, the trial court was free to, and did, disbelieve

that testimony.   The trial court could also consider appellant's

conflicting accounts, given to the police and in court.      He told

the police officer that Haskins threw the book bag and the

cocaine into the closet, then he testified at trial that he did

not see Haskins put anything in the closet.   Appellant's prior

felony convictions and his misdemeanor conviction for stealing

also affected his credibility as a witness.   Newton v.

Commonwealth, 29 Va. App. 433, 449, 512 S.E.2d 846, 853 (1999).

     "If there is evidence to support the conviction," we will

not substitute our judgment for that of the trier of fact, even

were our opinion to differ.   Commonwealth v. Presley, 256 Va.

465, 466, 507 S.E.2d 72, 72 (1998).    The totality of the

circumstances here is sufficient to support the trial court's

finding that appellant exercised dominion and control over the

cocaine to constitute joint constructive possession.

     Appellant also contends the trial court erred in finding he

violated the terms of a previously suspended sentence.    However,

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a trial court has broad discretion to revoke a suspended

sentence, based on Code § 19.2-306, which allows a court to do

so "for any cause deemed by it sufficient."     See also Hamilton

v. Commonwealth, 217 Va. 325, 326, 228 S.E.2d 555, 556 (1976).

The court's revocation will not be reversed unless an abuse of

discretion is clearly shown.     Id. at 327, 228 S.E.2d at 556;

Davis v. Commonwealth, 12 Va. App. 81, 86, 402 S.E.2d 684, 687

(1991).

     Appellant argues on appeal that the revocation was without

cause because the evidence was not sufficient to prove he

possessed cocaine. 2   As we have determined the evidence was

sufficient, his argument fails.    We find the trial court did not

abuse its discretion in finding appellant violated the terms of

the suspended sentence.

     For the reasons stated above, we affirm both the conviction

for possession of cocaine and the revocation of appellant's

previously suspended sentence.

                                                           Affirmed.




     2
       The Commonwealth, in the probation violation hearing, did
not rely solely on the possession of cocaine charge. The
Commonwealth also relied upon evidence that appellant had
attempted to escape from custody and had not cooperated with his
probation officer.


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