                     COURT OF APPEALS OF VIRGINIA


Present: Judges Willis, Humphreys and Senior Judge Overton
Argued at Chesapeake, Virginia


JOHN RONALD DeVAUL
                                           MEMORANDUM OPINION * BY
v.   Record No. 1345-00-1                 JUDGE ROBERT J. HUMPHREYS
                                                JUNE 5, 2001
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF THE CITY OF SUFFOLK
                    Rodham T. Delk, Jr., Judge

          Christopher P. Reagan, Assistant Public
          Defender (Office of the Public Defender, on
          brief), for appellant.

          Robert H. Anderson, III, Senior Assistant
          Attorney General (Mark L. Earley, Attorney
          General, on brief), for appellee.


     John Ronald DeVaul appeals his conviction, after a bench

trial, for possession of cocaine.   DeVaul argues that the trial

court erred in finding the evidence sufficient to establish that

he constructively possessed the drug.   Because this opinion has no

precedential value and because the parties are conversant with the

facts, we do not recite them in detail here.

     "Where the sufficiency of the evidence is challenged after

conviction, it is our duty to consider it in the light most

favorable to the Commonwealth and give it all reasonable

inferences fairly deducible therefrom."     Higginbotham v.


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975).

Furthermore, the judgment of a trial court will be disturbed on

appeal only if plainly wrong or unsupported by the evidence.

See Code § 8.01-680.

       During trial, the trial court overruled DeVaul's motions to

strike and ultimately convicted him of the offense finding the

evidence sufficient to support a "reasonable inference that

[DeVaul] had knowledge of that which was in plain view in the

room."

       "In order to convict a person of illegal possession of an

illicit drug, the Commonwealth must prove beyond a reasonable

doubt that the accused was aware of the presence and character

of the drug and that the accused consciously possessed it."

Walton v. Commonwealth, 255 Va. 422, 426, 497 S.E.2d 869, 871

(1998).    "[P]roof of actual possession, [however,] is not

required; proof of constructive possession will suffice.

Constructive possession may be established when there are acts,

statements, or conduct of the accused or other facts or

circumstances which tend to show that the [accused] was aware of

both the presence and character of the substance and that it was

subject to his dominion and control."      Id. at 426, 497 S.E.2d at

872.    "Mere proximity to the controlled substance, however, is

insufficient to establish possession.     Nevertheless, the

possession need not be exclusive."      Eckhart v. Commonwealth, 222

Va. 447, 450, 281 S.E.2d 853, 855 (1981).

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     "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) (citations omitted).    "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).

     Here, DeVaul contends that the Commonwealth merely proved

his proximity to the drugs, which he alleges is insufficient to

establish constructive possession.       To the contrary, unlike the

situation in Haskins v. Commonwealth, 31 Va. App. 145, 151, 521

S.E.2d 777, 780 (1999), the Commonwealth also proved that DeVaul

was the sole person in the room at the time Officer Joseph

DeStefano arrived.   Furthermore, the Commonwealth proved that

DeVaul had been sleeping in the room, a factor from which the

trial court could reasonably infer that DeVaul was at least in

joint possession and control over the room.       See Gillis v.

Commonwealth, 215 Va. 298, 301, 208 S.E.2d 768, 771 (1974)

(occupancy of premises as a co-tenant is a factor to be

considered with other evidence in determining whether a

defendant had constructive possession of contraband).      Moreover,

the drugs were found in the bathroom on top of the toilet seat.

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Although the bathroom light was not on, the foyer light was on,

and the drug paraphernalia was in the plain view of someone

standing at or near the doorway to the room.   Viewed in the

light most favorable to the Commonwealth, this evidence supports

the reasonable inference that DeVaul was aware of the presence

and character of the paraphernalia and contraband.

     Based on the totality of the circumstances, we do not find

that the trial court was "plainly wrong" in finding the evidence

sufficient to establish that DeVaul constructively possessed the

contraband.   See Eckhart, 222 Va. at 451, 281 S.E.2d at 855

(evidence sufficient to establish that defendant was aware of

drugs found in a bedroom she shared with her husband, when she

was seated outside the room in a location from which the drugs

were visible).

                                                         Affirmed.




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