                       COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Fitzpatrick, Judges Bumgardner and Felton
Argued at Salem, Virginia


JIMMY DALE ADKINS
                                           MEMORANDUM OPINION * BY
v.     Record No. 3267-01-3       CHIEF JUDGE JOHANNA L. FITZPATRICK
                                              OCTOBER 29, 2002
COMMONWEALTH OF VIRGINIA


            FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE
                     Joseph W. Milam, Jr., Judge

            Robert W. Williams, Jr., Assistant Public
            Defender (S. Jane Chittom, Appellate
            Defender; Public Defender Commission, on
            brief), for appellant.

            Eugene Murphy, Assistant Attorney General
            (Jerry W. Kilgore, Attorney General, on
            brief), for appellee.


       Jimmy Dale Adkins (appellant) was convicted in a bench

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

On appeal, he contends that the evidence was insufficient to

prove he possessed the drugs that were found in clothing near

him.    For the following reasons, we affirm the judgment of the

trial court.




     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
                          I.    BACKGROUND

     Under familiar principles of appellate review, we examine the

evidence in the light most favorable to the Commonwealth, the

prevailing party below, granting to it all reasonable inferences

fairly deducible therefrom.    See Juares v. Commonwealth, 26

Va. App. 154, 156, 493 S.E.2d 677, 678 (1997).

     So viewed, the evidence established that on January 10,

2001, at approximately 9:30 a.m., Deputy Sheriff Michael Hill

(Hill), Deputy Sheriff Barry Breakley (Breakley) and Officer

Christopher Tillman (Tillman) arrived at appellant's home to

serve an emergency commitment order (ECO) obtained by

appellant's mother earlier that morning.     The officers found

appellant naked and asleep on the living room couch.     The

officers were told that he slept with a knife and were concerned

about his use of a weapon.     There was a pile of male clothing on

the floor next to the couch and close to appellant's head.

There were no other clothes in the area.     Hill explained that

appellant had to go with the officers because they had an ECO,

and appellant said, "Well, let me get some clothes on."

Breakley testified

          When I told [appellant] to get up . . . that
          he had to go with me, I noticed he didn't
          have any clothes on, so I immediately
          reached down and picked up the clothes in
          front of him on the floor, and started to
          frisk 'em [sic] for to see [sic] if it was a



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          weapon in 'em [sic], before I gave 'em [sic]
          to him.

Breakley found a vial in the shirt pocket that contained 13

rocks of cocaine with a weight of 1.35 grams and smoking devices

on the floor directly under the clothes.    After the vial was

removed, appellant dressed in the clothes.    Appellant conceded

that the clothes belonged to him.

     Although appellant's mother left the home for a brief

period to obtain the ECO and take her grandchildren to school,

she testified that there "wasn't anybody [else] there that day."

The trial court found the evidence proved the clothes and the

drugs found in them belonged to appellant.

          I would agree that . . . the defendant never
          made an affirmative statement to the effect
          of "These clothes are mine." However, I
          think by his words and actions, he clearly
          established the clothes as belonging to him
          . . . .

     Appellant appeals from that decision.

                     II.   STANDARD OF REVIEW

     In reviewing the sufficiency of the evidence, "the judgment

of the trial court sitting without a jury is entitled to the

same weight as a jury verdict."     Saunders v. Commonwealth, 242

Va. 107, 113, 406 S.E.2d 39, 42, cert. denied, 502 U.S. 944

(1991).

     "[T]he trial court's judgment will not be set aside unless

plainly wrong or without evidence to support it."     Hunley v.


                              - 3 -
Commonwealth, 30 Va. App. 556, 559, 518 S.E.2d 347, 349 (1999).

"The credibility of a witness and the inferences to be drawn

from proven facts are matters solely for the fact finder's

determination."   Marable v. Commonwealth, 27 Va. App. 505,

509-10, 500 S.E.2d 233, 235 (1998) (internal citation omitted).

                   III.   CONSTRUCTIVE POSSESSION

     Appellant contends the trial court erred in finding the

evidence sufficient to prove that he constructively possessed

the drugs found in the clothing.   Specifically, he argues that

the evidence at trial failed to show that he was aware of the

presence and character of the cocaine.    We disagree.

     "The Commonwealth may prove possession of a controlled

substance by showing either actual or constructive possession."

Barlow v. Commonwealth, 26 Va. App. 421, 429, 494 S.E.2d 901,

904 (1998).

     "To establish 'possession' in the legal sense, not only

must the Commonwealth show actual or constructive possession of

the drug by the defendant, it must also establish that the

defendant intentionally and consciously possessed the drug with

knowledge of its nature and character."    Williams v.

Commonwealth, 14 Va. App. 666, 669, 418 S.E.2d 346, 348 (1992)

(internal citation omitted).

          To support a conviction based on
          constructive possession, the Commonwealth
          must point to evidence of acts, statements,


                               - 4 -
          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.

Glasco v. Commonwealth, 26 Va. App. 763, 774, 497 S.E.2d 150,

155 (1998) (internal citation omitted).

     "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, 425 S.E.2d 81,

83 (1992) (internal citations omitted).   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).

          Although mere proximity to drugs is
          insufficient to establish possession, it 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. In resolving this issue, the
          court must consider the totality of the
          circumstances disclosed by the evidence.

Glasco, 26 Va. App. at 774, 497 S.E.2d at 155 (internal

citations omitted).




                             - 5 -
     The circumstantial evidence clearly supports the trial

court's findings that the clothes containing the drugs belonged

to appellant and that he knew their nature and character.    The

clothing was found next to the couch where appellant was

sleeping naked.   It was the only clothing in the area.    Once the

cocaine was removed from the clothing, appellant dressed in the

clothes and conceded at argument that the evidence established

the clothes to be his.   The fact that appellant made no

statement about the drugs does not require the fact finder to

disregard the other circumstantial evidence linking him to the

drugs.   His close proximity to the clothes containing the drugs;

the smoking devices located under the clothes; the lack of any

other male with access to the clothes or drugs were all properly

considered by the trial court.   For the foregoing reasons, we

affirm the conviction.

                                                           Affirmed.




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