                    COURT OF APPEALS OF VIRGINIA


Present: Judges Coleman, Annunziata and Bumgardner
Argued at Norfolk, Virginia


KALIEK LAMONT SUBER
                                         MEMORANDUM OPINION * BY
v.   Record No. 0842-98-1              JUDGE ROSEMARIE ANNUNZIATA
                                              MAY 11, 1999
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE
                      E. Preston Grissom, Judge

           David W. Bouchard (Bouchard & Smith, on
           brief), for appellant.

           Jeffrey S. Shapiro, Assistant Attorney
           General (Mark L. Earley, Attorney General,
           on brief), for appellee.


     Kaliek Lamont Suber (“appellant”) appeals his bench trial

conviction of possession of heroin under Code § 18.2-250 on the

ground that the evidence was insufficient to sustain the

conviction.   Specifically, he contends the evidence does not

establish beyond a reasonable doubt that he had dominion and

control over the substance in question.   We find no error and

affirm.

     We state the relevant facts in the light most favorable to

the Commonwealth based on the evidence adduced at trial and the

inferences that may reasonably be drawn from it.     See


     *
      Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
Commonwealth v. Jenkins, 255 Va. 516, 521, 499 S.E.2d 263, 265

(1998).     On December 14, 1996, police officers searched the

residence of Alberta Armstrong, appellant’s grandmother,

pursuant to her lawfully-obtained consent.     Appellant was living

in the house at the time.     When the police entered appellant’s

bedroom, appellant was seated on his bed ironing a shirt; two

other individuals were seated on another bed in the room.        Under

appellant’s bed, the police found twenty-seven individual

packets of heroin hidden in a white sneaker. 1       The heroin had the

stamp "kick ass” on it.

     After his arrest, appellant gave the police a statement in

which he stated that a friend had brought the bags of heroin

stamped “ass kicker” into his room and sometimes hid drugs

within the room. 2    Appellant was charged with possession of

heroin with the intent to distribute.

     At trial, Sergeant Tony Torez, one of the officers that

spoke with appellant during the search, testified that appellant



     1
      Police also found six rocks of cocaine in a pocket of a
suit inside appellant’s room, an empty bag of marijuana behind
appellant’s bed, and appellant’s wallet on a television inside
the room.
     2
         Appellant’s full statement is as follows:

             In my room, we played video games and
             watched movies. One of the guys come in
             with dope stamped ass kicker. Sometimes he
             hides it around – sometimes he hides it
             around my room. The bags hold heroin.


                                 - 2 -
acknowledged people were storing drugs in his room and “had

knowledge that drugs were in [the] room.”   At the conclusion of

the Commonwealth's evidence, the court reduced the charge to

possession of heroin.

     Testifying in his defense, appellant acknowledged that the

heroin was found in his bedroom and stated that he shared the

room with Keith Spence and a cousin named “D.C.”   Appellant

testified that he did not know the drugs were in his room on the

day in question, did not know who put the drugs in his room, and

did not know to whom the drugs belonged.    However, appellant

admitted telling the police that Spence was bringing drugs into

the room and storing them there.   Appellant also admitted that

he knew Spence was selling drugs in the neighborhood and that he

knew the drugs in the room were heroin because he had seen the

stamp “ass kicker.”

     The judgment of the trial court is entitled to the same

weight as a jury verdict and will not be set aside unless it

appears from the evidence that it is plainly wrong or without

evidence to support it.   See Barlow v. Commonwealth, 26 Va. App.

421, 429, 494 S.E.2d 901, 904 (1998); Martin v. Commonwealth, 4

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

concedes that the evidence in this case is sufficient to

establish beyond a reasonable doubt that he knew the nature of




                               - 3 -
the drugs in question but contends that the evidence failed to

establish that he knew of the precise location of the drugs and

that he had dominion and control over them.   We disagree.

     To prove constructive possession, the Commonwealth must

establish “‘that the defendant was aware of both the presence

and character of the substance and that it was subject to his

dominion and control.’”   Brown v. Commonwealth, 5 Va. App. 489,

491-92, 364 S.E.2d 773, 774 (1988) (quoting Powers v.

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

"Such ‘possession may be proved by evidence of acts,

declarations or conduct of the accused from which an inference

may be fairly drawn that he knew of the existence of narcotics

at the place where they were found.’"   Josephs v. Commonwealth,

10 Va. App. 87, 99, 390 S.E.2d 491, 497 (1990) (en banc)

(quoting Andrews v. Commonwealth, 216 Va. 179, 182, 217 S.E.2d

812, 814 (1975)).   It is not necessary that possession be

exclusive.   See Archer v. Commonwealth, 225 Va. 416, 418, 303

S.E.2d 863, 863 (1983); Blake v. Commonwealth, 15 Va. App. 706,

708, 427 S.E.2d 219, 220 (1993).

     Although ownership or occupancy of the premises on which

drugs are found does not give rise to a presumption of

possession, “this factor may be considered with other evidence

[of the acts, statements, or conduct of the accused] in

determining whether [the accused] constructively possessed

drugs.”   Garland v. Commonwealth, 225 Va. 182, 184, 300 S.E.2d

                               - 4 -
783, 784 (1983).     See Tucker v. Commonwealth, 18 Va. App. 141,

144, 442 S.E.2d 419, 421 (1994).    Similarly, “[w]hile mere

proximity to a controlled substance is insufficient to establish

possession, it is a factor when determining whether the accused

constructively possessed drugs.”     Brown, 5 Va. App. at 492, 364

S.E.2d at 774 (finding that the defendant’s close proximity to

the drugs at issue, “combined with his knowledge of their

presence and the fact that he was in the house about an hour,”

was sufficient to prove they were subject to his dominion and

control).     See also Minor v. Commonwealth, 6 Va. App. 366,

371-72, 369 S.E.2d 206, 209 (1988) (affirming a conviction of

possession of cocaine based on evidence showing the defendant’s

residence in a house where the drugs at issue were found, his

knowledge of the presence of the drugs in his brother’s bedroom,

and his close proximity to the drugs). 3

     Viewing the evidence in the light most favorable to the

Commonwealth, the evidence establishes that appellant had

constructive possession of the heroin in his room at the time of

the search.    Upon arrest, appellant told police that he was in

his room, playing video games and watching movies with friends,

when one friend, who “sometimes [hid drugs] around [his] room,”



     3
      In both Minor and Brown, when police entered a residence to
search for drugs, the respective defendants were sitting on or
around a bed in another person’s room, within arm’s reach of two
pounds of cocaine. See Minor, 6 Va. App. at 367-68, 369 S.E.2d
at 207; Brown, 5 Va. App. at 492, 364 S.E.2d at 774.

                                 - 5 -
brought in the “dope” stamped “ass kicker.”   Although appellant

later denied knowledge of the drugs under his bed at trial, in

its role of judging credibility, the trier of fact is not

required to accept in toto an accused’s statement but may rely

on it in whole, in part, or reject it completely.    See Rollston

v. Commonwealth, 11 Va. App. 535, 547, 399 S.E.2d 823, 830

(1991).    Thus, the trial court was entitled to reject

appellant’s denial of knowledge on the witness stand and

interpret that portion of his testimony as “mere fabrication[]

to conceal guilt . . . .”    Id. at 547, 399 S.E.2d at 830.   Based

on appellant’s residence in the bedroom, appellant’s presence

inside his room at the time someone brought in the heroin at

issue, appellant’s knowledge of the nature and presence of the

heroin, the location of the heroin underneath appellant’s bed,

appellant’s close proximity to the heroin at the time of the

search, and the trial court’s permitted inferences based upon

its credibility determinations, we find that the court had

sufficient evidence to conclude appellant exercised dominion and

control.

     For the foregoing reasons, we affirm appellant’s

conviction.

                                                          Affirmed.




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