                   COURT OF APPEALS OF VIRGINIA


Present: Judges Coleman, Elder and Senior Judge Cole
Argued at Richmond, Virginia


RONALD CASTANEDA RAMIREZ, A/K/A
 RONALD CASTANADA, S/K/A
 RONALD CASTANADA-RAMIREZ                   MEMORANDUM OPINION * BY
                                             JUDGE MARVIN F. COLE
v.   Record No. 2971-95-2                      JANUARY 14, 1997

COMMONWEALTH OF VIRGINIA


            FROM THE CIRCUIT COURT OF NOTTOWAY COUNTY
                     Thomas V. Warren, Judge

          Michael Morchower (Morchower, Luxton &
          Whaley, on brief), for appellant.

          Monica S. McElyea, Assistant Attorney General
          (James S. Gilmore, III, Attorney General, on
          brief), for appellee.



     Ronald Castaneda Ramirez (defendant) was convicted in a

bench trial for transportation of one or more ounces of cocaine

into the Commonwealth with the intent to sell or distribute it in

violation of Code § 18.2-248.01 and for distribution of cocaine

in violation of Code § 18.2-248.     On appeal, he contends that the

trial court erred in failing to suppress statements he made to an

officer because the statements were made in violation of Miranda
v. Arizona, 384 U.S. 436 (1966). 1   We affirm the convictions.

     On review, we examine the evidence "in the light most

     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
     1
      This appeal was granted on April 22, 1996, on the sole
issue of whether the defendant's statements were voluntary and
properly introduced into evidence.
favorable to the Commonwealth, granting to it all reasonable

inferences fairly deducible therefrom."       Martin v. Commonwealth,

4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987).       The judgment of

a trial court, sitting without a jury, is entitled to the same

weight as a jury verdict and will be disturbed only if plainly

wrong or without evidence to support it.       Id.   The credibility of

a witness, the weight accorded the testimony, and the inferences

to be drawn from proven facts are matters solely within the

province of the fact finder.   Long v. Commonwealth, 8 Va. App.

194, 199, 379 S.E.2d 473, 476 (1989).

     The parties are fully conversant with the record, and this

memorandum opinion recites only those facts necessary to a

disposition of the issues on appeal.

     On January 26, 1995, Special Agent Timothy Reibel of the

Virginia State Police negotiated a sale of cocaine outside the

Weston Motel in Crewe, Virginia.       Reibel gave the defendant two

thousand seventy-five dollars ($2,075) and the defendant reached

under the front seat of the car he was in, pulled out two clear

plastic baggies containing cocaine and delivered them to the

officer.   Police officers located in an adjacent motel room came

out and physically took control of the defendant.       Special Agent

Steve Berry, who was Reibel's supervisor, arrested the defendant

for distribution of cocaine.   According to the testimony of

Special Agent Reibel, Berry immediately advised the defendant of

his Miranda rights.



                                   2
     The defendant was escorted into one of the motel rooms where

he was interviewed by Special Agent Steve Berry of the Virginia

State Police and Investigator John Rutledge of the Nottoway

County Sheriff's Office.    Before any interrogation commenced,

Berry read the defendant his Miranda rights from a card.     One

right read to him was that he had "the right to talk to a lawyer

and have him present while [he was] being questioned. . . ."

Berry testified that he asked Ramirez if he understood his rights

and he said he did.   Berry also testified that he did not have

any problem conversing with Ramirez in English.
     During the interview, Ramirez admitted he sold two ounces of

cocaine to the undercover officer.    When asked where the rest of

the cocaine was, Ramirez stated that was all he brought with him.

Berry inquired further and said, "[A]re you telling me that's

all the cocaine that you brought up from Florida to sell?"    The

defendant replied, "Yes."   Berry then questioned, "[A]re you

telling me you transported two ounces of cocaine from Florida to

Virginia, obtained a motel room, sold the cocaine to the

undercover officer and made enough money to pay for your

expenses?"   The defendant responded, "Yes."

     After Berry commenced questioning the defendant about a

hotel room key in his pocket, the defendant said he would like to

talk to a lawyer.   Berry then stopped the interrogation and did

not question the defendant further.

     Berry did not record the defendant's statement.    He made



                                  3
notes of his questions and answers during the interview and

subsequently dictated his police report from the notes.     Berry

testified that upon reviewing his notes the next day, he added

"Miranda" and the date to them because he had neglected to

include this information when he was originally writing them.

        Investigator John Rutledge did not personally question the

defendant.    He testified that he was in and out of the motel room

and did not pay any attention to the conversation between the

police and the defendant.    He stated that he did not hear any of

it.
        Ramirez testified only upon the suppression issue and not

upon guilt or innocence.    He stated that he did not "remember

that [Berry said] anything about" Miranda rights because he spoke

fast and there were several other officers speaking at the same

time.    He testified that he was first advised of his rights by

Reibel at the Sheriff's office.    He did not sign anything

indicating that he understood his rights.

        The defendant testified that his native language was

Spanish, that he attended school through the twelfth grade in

Costa Rica, and that he received a GED in Spanish while living in

New York.    At the time of the trial, he had lived in the United

States for fourteen years and had been speaking English about

four years.

        The trial judge reviewed the evidence.   He stated that he

had no difficulty understanding the defendant and he did not



                                   4
believe he had "particular difficulty with communication."   The

trial judge stated that he believed Berry's testimony that he

gave defendant his Miranda warnings and that he did not believe

that Berry had falsely altered his notes to indicate that Miranda

rights were given.

     We are confronted with two questions:   (1) the standard of

review concerning the validity of a waiver of Miranda rights; and

(2) the standard of review concerning the voluntariness of a

confession.
     Upon the first question, the Supreme Court has established

the standard:
          [T]he inquiry whether a waiver of Miranda
          rights was made knowingly and intelligently
          is a question of fact, and the trial court's
          resolution of that question is entitled on
          appeal to a presumption of correctness.

                [The trial court] evaluates the
                credibility of the witnesses,
                resolves any conflicts in the
                testimony, and weighs the evidence
                as a whole. The court must decide
                whether the defendant knowingly and
                intelligently relinquished and
                abandoned his rights. The court's
                determination is a question of fact
                based upon the totality of
                circumstances. This factual
                finding will not be disturbed on
                appeal unless plainly wrong.

Harrison v. Commonwealth, 244 Va. 576, 581, 423 S.E.2d 160, 163

(1992) (citation omitted).

     "An express written or oral statement of waiver of rights is

not required.   Waiver can be inferred from the actions and words




                                 5
of the person interrogated."    Cheng v. Commonwealth, 240 Va. 26,

35, 393 S.E.2d 599, 604 (1990).   In Cheng, the Supreme Court held

that Cheng's decision to talk with the police officer, after

having been advised of his Miranda rights, constituted an implied

waiver of the Miranda rights.

     In this case, the trial judge stated in the record that he

believed Special Agent Berry and that the Miranda warnings were

given prior to the defendant's statements.   He also stated that

he had no difficulty communicating with the defendant.    There is

credible evidence in the record to support the trial court's

determination that the defendant waived his Miranda rights, and
we so find.

     Second, although the defendant may have waived his rights,

it must be shown that "the waiver is made voluntarily, knowingly

and intelligently."   Miranda, 384 U.S. at 444.   The Supreme Court

of Virginia has established the standard of review as follows:
          "Whether a statement is voluntary is
          ultimately a legal rather than factual
          question. Subsidiary factual questions,
          however, are entitled to a presumption of
          correctness.

               The test to be applied in determining
          voluntariness is whether the statement is the
          'product of an essentially free and
          unconstrained choice by its maker,' or
          whether the maker's will 'has been overborne
          and his capacity for self-determination
          critically impaired.' In determining whether
          a defendant's will has been overborne, courts
          look to 'the totality of all the surrounding
          circumstances,' including the defendant's
          background and experience and the conduct of
          the police."



                                  6
Roach v. Commonwealth, 251 Va. 324, 341, 468 S.E.2d 98, 108

(citations omitted), cert. denied, 117 S. Ct. 365 (1996).

     The argument advanced by the defendant is that Spanish was

his primary language and that he did not speak the best English.

He testified that the officer was speaking so fast that he did

not hear him because there were other "guys" in the room

speaking.   He does not contend that he was threatened or coerced

in any way.   The interview lasted about five minutes and was

terminated when the defendant stated he wanted to consult an

attorney.
     The Commonwealth presented evidence that the defendant was

read the Miranda warnings from a card and he stated that he

understood them.   This is corroborated by the fact that after a

short period of interrogation, he did in fact request an

attorney.   The record also disclosed that Ramirez obtained a GED

in New York in Spanish, and has been in this country for fourteen

years.   Splecial Agents Reibel and Berry both testified that they

had no difficulty in communicating with him.   The trial judge

commented that the testimony before him convinced him that the

defendant did not have any "particular difficulty with

communication."    The evidence does not disclose any threats or

coercion on the part of the police.

     Based upon our independent examination of the record, we

conclude that the defendant's will was not overborne, that his

capacity for self-determination was not critically impaired, and



                                  7
that his confession was the product of a free and unconstrained

choice.

     For the foregoing reasons we affirm the convictions.

                                             Affirmed.




                                8
