                       COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Annunziata and Humphreys
Argued at Richmond, Virginia


SEAN CHRISTOPHER BOEHRINGER
                                          MEMORANDUM OPINION * BY
v.   Record No. 1219-01-2               JUDGE ROSEMARIE ANNUNZIATA
                                            NOVEMBER 12, 2002
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                      Thomas N. Nance, Judge

          William P. Irwin, V (Bowen, Bryant, Champlin
          & Carr, on brief), for appellant.

          Steven A. Witmer, Assistant Attorney General
          (Randolph A. Beales, Attorney General, on
          brief), for appellee.


     Sean Christopher Boehringer was convicted by a jury of

possession of cocaine, in violation of Code § 18.2-250, and

possession of a firearm while in possession of cocaine, in

violation of Code § 18.2-308.4.   The jury fixed his sentences at

thirty days and five years in prison, respectively, which the

trial court imposed.   Boehringer appeals from the decision of

the court, contending 1) the court erroneously denied his

request to question members of the jury panel about the range of

punishment applicable in his case, and 2) the evidence was not




     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
sufficient to establish guilt beyond a reasonable doubt.     We

find no error and affirm.

                                I.

                            Background

     On December 28, 2000, Officers Steve Durham and Brian

Hixson patrolled the Midlothian Village Apartments in an

unmarked police car.   The apartments are in a high-crime,

high-drug area.   The management had posted a "no trespassing"

sign, which they asked the Richmond police to enforce.

     At about 3:25 p.m., the officers saw a blue minivan drive

into the complex.   As they drove through the complex, Officer

Durham saw two men on the stairs between the second and third

floor landings of one of the buildings.   When the men noticed

Officer Durham, they started towards the third floor. The

officers exited their vehicle and followed them.   Officer Durham

climbed the rear stairs of the building, and Officer Hixson

climbed the front stairs.   Durham saw Robert Rodriguez knocking

on an apartment door and Boehringer in the stairwell at the

front of the building, a few steps below the top of the stairs.

Boehringer kneeled and moved his right hand as though he were

placing an item on one of the steps.

     Officer Hixson arrived at the top of the stairs and asked

Boehringer what he was doing on the property.   Boehringer

responded that he was looking for "Paul," but could not provide



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a last name, address, or apartment location for "Paul."     Hixson

arrested him for trespassing.

     Officer Durham directed Officer Hixson to the area where

Boehringer had made the hand motion.     Hixson recovered a folded

dollar bill wrapped around a substance he believed to be crack

cocaine.   The item was later determined to be cocaine.    Hixson

led Boehringer to the bottom of the stairs and read him his

Miranda rights.   Upon searching him incident to his arrest,

Hixson found a set of keys in Boehringer's pants pocket.

     After Officer Hixson found a Plymouth key in Boehringer's

pocket, he asked Boehringer if the Plymouth van he had observed

earlier belonged to him.   The defendant did not respond.

Officer Hixson asked if the keys fit the van.     Boehringer said,

"Maybe."   Hixson then asked if Boehringer had anything of value

in the van.   He responded, "Yeah, I have some tools in there.

Can you lock it up?"

     When Officer Hixson approached the van, through the window,

he saw a crushed aluminum can, which he believed had been

manipulated into a cocaine smoking device.     He also observed ash

and residue on the top of the can.      Based on his observations,

Officer Hixson decided to search the van for other contraband.

First, he verified that the keys found in Boehringer's pocket

fit the door lock and the vehicle's ignition.     While searching,

he found a gray plastic tarp under a camouflage jacket.     He

opened the tarp and found a twelve-gauge pistol-grip shotgun

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with the barrel removed from the stock.     He also found an

assault rifle wrapped in a jacket, as well as a thirty-round

magazine with ammunition for the rifle.

     Officer Hixson took Boehringer to the station for

processing.   On the way, Boehringer asked, "What did you find in

the van?   Just the can?"     Hixson responded, "Yes.   And you know

what else I found?"   In response, the defendant nodded.     The

defendant later told Hixson the van belonged to his girlfriend.

                                   II.

                                Analysis

              A.   Informing Jury of Sentencing Ranges

     Boehringer contends that the trial court erred by

prohibiting questions to the jury panel during voir dire about

the mandatory minimum penalty for possession of a firearm while

in possession of cocaine. 1    He reasons that the jury's

determination of guilt in a bifurcated trial could be improperly

effected by their uninformed beliefs about the sentence that

could be imposed. The issue Boehringer raises is controlled by

the decision of the Virginia Supreme Court in Commonwealth v.

Hill, 264 Va. 315, 568 S.E.2d 673 (2002).




     1
       Defendant also presents the question that the jury should
have been informed of the sentencing range for possession of
cocaine. However, because he does not support this contention
with argument or authority, we do not address it. See Buchanan
v. Buchanan, 14 Va. App. 53, 56, 415 S.E.2d 237, 239 (1992).

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     In Hill, the Court held:

          [I]n a non-capital case, neither the
          defendant nor the Commonwealth has a
          constitutional or statutory right to
          question a jury panel about the range of
          punishment that may be imposed upon the
          defendant. Questions about the range of
          punishment are not relevant to any of the
          factors prescribed in Code § 8.01-358, those
          factors being relationship to the parties,
          interest in the cause, the formation of any
          opinions about the cause or bias, or
          prejudice therein. [Such] questions . . .
          will only result in speculation by jury
          panel members.

Hill, 264 Va. at 319, 568 S.E.2d at 676.   We, accordingly, find

the trial court did not err in prohibiting questions relating to

punishment during voir dire.

                  B.   Sufficiency of the Evidence

     When the sufficiency of the evidence is challenged on

appeal, "[w]e view the evidence in the light most favorable to

the Commonwealth, granting to it all reasonable inferences

fairly deducible from the evidence."    Cooper v. Commonwealth, 31

Va. App. 643, 646, 525 S.E.2d 72, 73 (2000).   The appellate

court must, therefore, "discard the evidence of the accused in

conflict with that of the Commonwealth, and regard as true all

the credible evidence favorable to the Commonwealth and all fair

inferences that may be drawn" from the credible evidence.

Watkins v. Commonwealth, 26 Va. App. 335, 348, 494 S.E.2d 859,

866 (1998).   The credibility of the witnesses and the weight of

the evidence are matters to be determined solely by the trier of


                                - 5 -
fact.     See Swanson v. Commonwealth, 8 Va. App. 376, 378-79, 382

S.E.2d 258, 259 (1989).    Furthermore, the findings of the trial

court will not be disturbed unless plainly wrong or without

evidence to support them.     See McGee v. Commonwealth, 25 Va.

App. 193, 197-98, 487 S.E.2d 259, 261 (1997) (en banc).

        Constructive possession of contraband may be established by

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 the character of the
             [contraband] and that it was subject to his
             dominion and control.

Logan v. Commonwealth, 19 Va. App. 437, 444, 452 S.E.2d 364,

368-69 (1994) (en banc) (citation omitted); see also Andrews v.

Commonwealth, 216 Va. 179, 182, 217 S.E.2d 812, 814 (1975).

Furthermore,

             occupancy of a vehicle . . . where
             [contraband is] found is a circumstance that
             may be considered together with other
             evidence tending to prove that the owner or
             occupant exercised dominion and control over
             items in the vehicle or on the premises in
             order to prove that the owner or occupant
             constructively possessed the contraband
             . . . . [P]roof that a person is in close
             proximity to contraband is a relevant fact
             that, depending on the circumstances, may
             tend to show that, as an owner or occupant
             of property or of a vehicle, the person
             necessarily knows of the presence, nature
             and character of [the contraband] that is
             found there.

Burchette v. Commonwealth, 15 Va. App. 432, 435, 425 S.E.2d 81,

83 (1992) (citation omitted); see also Grier v. Commonwealth, 35

                                 - 6 -
Va. App. 560, 570, 546 S.E.2d 743, 747 (2001) (citation

omitted).

     "Circumstantial evidence of possession is sufficient to

support a conviction provided it excludes every reasonable

hypothesis of innocence."   Spivey v. Commonwealth, 23 Va. App.

715, 724, 479 S.E.2d 543, 548 (1997).   Moreover, "[t]he

Commonwealth is not required to prove that there is no

possibility that someone else may have planted, discarded,

abandoned, or placed the [contraband in the location in

question]."   Brown v. Commonwealth, 15 Va. App. 1, 10, 421

S.E.2d 877, 883 (1992).

     In this case, Boehringer's proximity and relationship to

the contraband, his occupancy of a vehicle in which drug

paraphernalia and firearms were found, his conduct when pursued

and then questioned by the police, and his demonstrated guilty

knowledge when questioned about the firearms in his vehicle

concur in establishing his guilt beyond a reasonable doubt.

When the officers first observed Boehringer, he distanced

himself from them.   When they approached him, Boehringer knelt

and discarded an item on the step where he was located, which

subsequently was found to be cocaine wrapped in a dollar bill.

When questioned about his presence at the apartment complex,

Boehringer lied about his reasons for being there.   When Officer

Hixson asked if the keys from Boehringer's pocket fit the

Plymouth van, Boehringer responded, less than candidly, "Maybe."

                               - 7 -
Finally, Boehringer's affirmative nod in response to Officer

Hixson's comment,"you know what else I found [in the van],"

supports the inference that he was aware the firearms were in

the van.   "[T]he combined force of [these] concurrent and

related circumstances . . . lead[s] a reasonable mind

inescapably to [the] conclusion [that Boehringer possessed the

cocaine and firearms]."   Shurbaji v. Commonwealth, 18 Va. App.

415, 423, 444 S.E.2d 549, 553 (1994) (internal quotation and

citation omitted); see also Glasco v. Commonwealth, 26 Va. App.

763, 774, 497 S.E.2d 150, 155 (1998) (holding that appellate

court reviewing the sufficiency of the evidence of a defendant's

awareness of the presence and character of a controlled

substance and his dominion over it must consider the totality of

the circumstances).   For the foregoing reasons, the convictions

are affirmed.

                                                          Affirmed.




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