                      COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Willis and Senior Judge Hodges
Argued at Richmond, Virginia


JOSEPH LEWIS McCOY
                                          MEMORANDUM OPINION * BY
v.   Record No. 0858-01-2               JUDGE JAMES W. BENTON, JR.
                                               AUGUST 6, 2002
COMMONWEALTH OF VIRGINIA


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

          Brian J. Grossman (Eck, Collins & Marstiller,
          on brief), for appellant.

          Linwood T. Wells, Jr., Assistant Attorney
          General (Randolph A. Beales, Attorney
          General, on brief), for appellee.


     The sole issue presented by this appeal is whether the

evidence was sufficient to prove Joseph Lewis McCoy possessed

heroin found in another person's apartment.   We reverse the

conviction.

                               I.

     A grand jury indicted Joseph Lewis McCoy for possession of

heroin with the intent to distribute in violation of Code

§ 18.2-248.   At trial, the Commonwealth's evidence proved that

several police officers went to a building to execute search

warrants at two apartments.   In the backyard of the building, they


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
encountered two men, one of whom had a walkie-talkie.    No evidence

associated the men with the apartments to be searched.    After

ordering the men to the ground, the officers simultaneously

approached the apartments and gained entry to the downstairs

apartment by battering the rear door, which had been fortified

with a wooden board.    When the officers entered the apartment

through the kitchen, they loudly announced their presence.       An

officer went into a hallway and hesitated because a dog was there.

He then saw McCoy and another man run from the middle room to the

living room.    Entering the living room, the officer saw McCoy and

two men seated on the sofa.    The officer testified that the door

in the living room led to the exterior and to stairs going to the

apartment upstairs.    He also testified that the men did not try to

escape from the apartment.

        In the middle room on a table, the officers found pieces of

heroin and "individually knotted bag corners" containing heroin.

Currency and packaging material were scattered throughout the

room.    In the living room, the officers discovered "a pile of

approximately twenty hits of the heroin . . . partially shoved

under a rug."    Two of the "hits" were in plain view, and the other

eighteen were "under the carpet."    A trail of small knotted bags

went from the middle room to the living room.    One of the men

sitting on the sofa near McCoy had heroin in his pocket.

        When the officers arrested McCoy and searched him, the

officer found no heroin on McCoy's person or in his clothing.

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After the officer advised McCoy of Miranda rights and asked what

he was doing in the apartment, McCoy "said that he was visiting

his girlfriend [in the] upstairs . . . apartment . . . and that he

had made breakfast and had come down to visit the girl that lives

in [the downstairs] apartment . . . , who was not present there."

McCoy said "he had been there . . . approximately a half an hour."

When "asked if he knew what was going on there[, McCoy] . . . said

he didn't."    Later, at the police station, when asked whether he

used drugs, McCoy said "he didn't abuse it but he was using every

day."    The officer did not "recall exactly whether [McCoy]

specified heroin or not" but thought "it was just drugs."

        In the upstairs apartment, the officers discovered a handgun

in a bedroom under a mattress, heroin "in plain view on a dresser"

in that bedroom, and syringes in the top drawer of that dresser.

The only person present in the upstairs apartment was a woman

identified as McCoy's "girlfriend."      When the officers asked McCoy

if he lived upstairs, McCoy said he did not and indicated "he

stayed there off and on but didn't live there."     McCoy also said

he did not know anything about the items the officers seized

upstairs.

        At the conclusion of the evidence, the trial judge granted

McCoy's motion to dismiss the charge of intent to distribute and

denied McCoy's motion to dismiss the possession charge.     The trial

judge convicted McCoy of possession of heroin.     This appeal

followed.

                                 - 3 -
                                II.

     The evidence did not prove McCoy had actual possession of the

heroin.    In addition, no evidence proved McCoy lived in either

apartment.   "To support a conviction based upon constructive

possession, 'the Commonwealth must point to 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 character of the substance and that it was

subject to his dominion and control.'"   Drew v. Commonwealth, 230

Va. 471, 473, 338 S.E.2d 844, 845 (1986) (quoting Powers v.

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

     McCoy was not present in the upstairs apartment when the

officers found heroin in the bedroom.    Only the woman identified

as McCoy's "girlfriend" was present when the heroin was found.     As

in Drew and Garland v. Commonwealth, 225 Va. 182, 300 S.E.2d 783

(1983), this evidence was insufficient to prove McCoy

constructively possessed the heroin in the upstairs apartment.

     Although McCoy was in the downstairs apartment, no evidence

tended to show the heroin was subject to McCoy's dominion and

control.    As the Supreme Court has held, "mere proximity to a

controlled drug is not sufficient to establish dominion and

control."    Drew, 230 Va. at 473, 338 S.E.2d at 845 (citing Wright

v. Commonwealth, 217 Va. 669, 670, 232 S.E.2d 733, 734 (1977);

Fogg v. Commonwealth, 216 Va. 394, 395, 219 S.E.2d 672, 673

(1975)).

                                - 4 -
     In many respects, the facts and circumstances concerning the

heroin in the downstairs apartment resemble those in Huvar v.

Commonwealth, 212 Va. 667, 187 S.E.2d 177 (1972).   There, the

Supreme Court ruled as follows:

                The only evidence which connects
             defendant with the drugs involved here is
             his presence in the apartment when they were
             found, and the fact that he had the
             appearance of one who may have been using
             drugs. There is no evidence that defendant
             owned, possessed or exercised any control
             over these specific drugs.

                It is the theory of the Commonwealth that
             the police interrupted a "pot party." One
             could reasonably reach this conclusion from
             the evidence. However, the mere presence of
             defendant at the party is not sufficient to
             convict him of actual or constructive
             possession of the drugs that were found
             there. It was not his apartment. Those
             present were not shown to have been his
             guests or there at his invitation. None of
             the prescription containers in which some of
             the drugs were found bore his name on their
             labels. He made no statement, committed no
             act and indulged in no conduct from which
             the inference could be fairly drawn that he
             possessed or controlled the drugs which the
             police found.

Id. at 668, 187 S.E.2d at 178.

     Likewise, in Wright, the defendant was in another person's

apartment.    When the police arrived, the defendant was in a

bedroom where heroin was openly displayed and a person was using

heroin.   217 Va. at 669, 232 S.E.2d at 733.   Finding a lack of

evidence to prove the defendant constructively possessed the

heroin, the Court held as follows:


                                 - 5 -
             In the present case, the evidence is
          insufficient to support the conviction.
          Wright did not live in the apartment, no
          heroin was found in his actual possession,
          and there is no evidence that the heroin was
          shared with Carter or that it was under
          Wright's dominion or control. To infer that
          Wright put the heroin under the dresser when
          warned that the police were on the premises
          would be to engage in speculation and
          conjecture. The interval of time between
          the closing of the door to the bedroom by
          Carter's wife and the entrance of the police
          must have been short because Carter had not
          dropped the syringe before the officers
          appeared. Mere proximity of Wright to the
          packages was not sufficient to establish
          constructive possession, and the conviction
          of possession with intent to distribute
          cannot be sustained.

Id. at 670-71, 232 S.E.2d at 734.

     As in those cases, the evidence in this record was

insufficient to prove McCoy exercised dominion and control over

the heroin in the downstairs apartment he was visiting or in the

upstairs apartment where his female friend lived.   Accordingly,

we reverse the conviction and dismiss the indictment.

                                        Reversed and dismissed.




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