                  COURT OF APPEALS OF VIRGINIA


Present: Judges Bray, Bumgardner and Frank
Argued at Chesapeake, Virginia


WILLIE F. WILSON, S/K/A
 WILLIE FRANK WILSON
                                           MEMORANDUM OPINION * BY
v.   Record No. 0597-01-1                   JUDGE ROBERT P. FRANK
                                               FEBRUARY 5, 2002
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF THE CITY OF SUFFOLK
                    Westbrook J. Parker, Judge

          Barrett R. Richardson (Richardson &
          Rosenberg, on brief), for appellant.

          Kathleen B. Martin, Assistant Attorney
          General (Randolph A. Beales, Attorney
          General; Virginia B. Theisen, Assistant
          Attorney General, on brief), for appellee.


     Willie F. Wilson, s/k/a Willie Frank Wilson (appellant) was

convicted in a bench trial of possession of cocaine, in violation

of Code § 18.2-250.    On appeal, he contends the evidence was

insufficient to convict.    For the reasons stated herein, we affirm

the conviction.

     When considering the issue of sufficiency on appeal, we

view the evidence in the light most favorable to the

Commonwealth, granting to it all reasonable inferences fairly

deducible therefrom.    See Higginbotham v. Commonwealth, 216 Va.


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
349, 352, 218 S.E.2d 534, 537 (1975).    "In so doing we must

'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 therefrom.'"     Norman v. Commonwealth, 2 Va. App. 518,

520, 346 S.E.2d 44, 45 (1986) (quoting Parks v. Commonwealth,

221 Va. 492, 498, 270 S.E.2d 755, 759 (1980) (quoting Wright v.

Commonwealth, 196 Va. 132, 137, 82 S.E.2d 603, 606 (1954))).

The trial court's judgment will not be set aside unless plainly

wrong or without evidence to support it.     See Josephs v.

Commonwealth, 10 Va. App. 87, 99, 390 S.E.2d 491, 497 (1990)

(en banc).

     Possession of a controlled substance may be actual or

constructive.   Archer v. Commonwealth, 225 Va. 416, 418, 303

S.E.2d 863, 863 (1983).    "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 appellant 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)).   See Eckhart v. Commonwealth, 222 Va. 447,

450, 281 S.E.2d 853, 855 (1981); McGee v. Commonwealth, 4 Va.

App. 317, 322, 357 S.E.2d 738, 740 (1987).

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             Proof by circumstantial evidence "is not
             sufficient . . . if it engenders only a
             suspicion or even a probability of guilt.
             Conviction cannot rest upon conjecture."
             Littlejohn v. Commonwealth, 24 Va. App. 401,
             414, 482 S.E.2d 853, 859 (1997) (citing Hyde
             v. Commonwealth, 217 Va. 950, 955, 234
             S.E.2d 74, 78 (1977)). "'All necessary
             circumstances proved must be consistent with
             guilt and inconsistent with innocence and
             exclude every reasonable hypothesis of
             innocence.'" Stover v. Commonwealth, 222
             Va. 618, 623, 283 S.E.2d 194, 196 (1981)
             (quoting Inge v. Commonwealth, 217 Va. 360,
             366, 228 S.E.2d 563, 567 (1976)). "When,
             from the circumstantial evidence, 'it is
             just as likely, if not more likely,' that a
             'reasonable hypothesis of innocence'
             explains the accused's conduct, the evidence
             cannot be said to rise to the level of proof
             beyond a reasonable doubt." Littlejohn, 24
             Va. App. at 414, 482 S.E.2d at 859 (quoting
             Haywood v. Commonwealth, 20 Va. App. 562,
             567-68, 458 S.E.2d 606, 609 (1995)). The
             Commonwealth need not "'exclude every
             possible theory or surmise,'" but it must
             exclude those hypotheses "'which flow from
             the evidence itself.'" Cantrell v.
             Commonwealth, 7 Va. App. 269, 289-90, 373
             S.E.2d 328, 338-39 (1988) (citations
             omitted).

Betancourt v. Commonwealth, 26 Va. App. 363, 373-74, 494 S.E.2d

873, 878 (1998).    Thus, in resolving this issue, we must

consider "the totality of the circumstances disclosed by the

evidence."     Womack v. Commonwealth, 220 Va. 5, 8, 255 S.E.2d

351, 353 (1979).

     The drugs were found in the driver's side console, no more

than one foot from where appellant had been sitting.    While mere

proximity to drugs is insufficient by itself to establish

possession, such a circumstance is probative in determining

                                 - 3 -
whether an accused possessed the drugs.     Lane v. Commonwealth,

223 Va. 713, 716, 292 S.E.2d 358, 360 (1982).

     In addition, appellant was the sole occupant and driver of

the vehicle, although he did not own the car.    The car was

licensed in Michigan, and appellant had a Michigan

identification card. 1   These facts suggest appellant's use was

continuous and exclusive rather than a quick, momentary

borrowing of the vehicle.    "Ownership or occupancy of the

vehicle in which the drugs are found is likewise a circumstance

probative of possession."     Glasco v. Commonwealth, 26 Va. App.

763, 774, 497 S.E.2d 150, 155 (1998), aff'd, 257 Va. 433, 513

S.E.2d 137 (1999).

     Appellant argues that our decisions in Jones v.

Commonwealth, 17 Va. App. 572, 439 S.E.2d 863 (1994), and

Scruggs v. Commonwealth, 19 Va. App. 58, 448 S.E.2d 663 (1994),

control the outcome of this case.    We disagree.   The facts in

those cases differ significantly from the case at hand.

     In Jones, there were two occupants of the vehicle, Jones

and the driver.     17 Va. App. at 573, 439 S.E.2d at 863.   A small

quantity of cocaine was found in a small tray between Jones and

the driver.   Id.    We held, since the evidence showed only "mere

proximity" to the drugs, the conviction could not stand.       Id. at

574, 439 S.E.2d at 864.


     1
       Appellant's license to drive in Virginia had been revoked
previously.

                                 - 4 -
      In Scruggs, Scruggs was the driver of a car, and Ross was

the passenger.     19 Va. App. at 59, 448 S.E.2d at 664.    The

officer observed a shirt covering the front passenger seat where

Ross had been sitting.      Id. at 60, 448 S.E.2d at 664.   Under the

shirt, the passenger seat was damaged with "numerous slits and

holes."     Id.   In one slit, the police found a plastic bag

containing eighteen rocks of cocaine and keys belonging to Ross.

Id.   We reversed Scruggs' conviction because we could not

exclude the reasonable hypothesis, arising from the evidence,

that Ross placed the cocaine and his keys in the slit.       Id. at

61-63, 448 S.E.2d at 665-66.

      Here, in contrast to Scruggs, the drugs 2 were found within

appellant's reach in the console of the driver's side door.

This circumstance is probative of his guilt.      See Brown v.

Commonwealth, 5 Va. App. 489, 491-93, 364 S.E.2d 773, 774-75

(1988) (finding the evidence was sufficient to support a

conviction for possession of cocaine found in plain view and

within an arm's reach of the accused, even though others were

present).

      More importantly, evidence of appellant's behavior supports

the trial court's finding that he was aware of the presence and

character of a drug.     He began to yell, scream, and act "very

erratic" as Bryant began the inventory search of his car.         Such


      2
       The certificate of analysis indicated the cocaine weighed
0.07 grams.

                                  - 5 -
circumstantial evidence can be an important factor in a case.

For example, in Hardy v. Commonwealth, this Court found:

          Hardy was the sole occupant of the vehicle
          in which the drugs were found. Hardy had
          given his car keys to his girlfriend after
          seeing the police. When Hardy's girlfriend
          spoke with the police, Hardy yelled to her,
          "don't give them the keys." His actions and
          the words directed to her bespeak a guilty
          knowledge that drugs were present in the
          vehicle's trunk.

17 Va. App. 677, 682-83, 440 S.E.2d 434, 437-38 (1994).     See

also Burke v. Commonwealth, 30 Va. App. 89, 93, 515 S.E.2d 777,

779 (1999) (concluding "[t]he defendant's actions together with

his physical possession of the drug support the finding that he

knew its nature and character," where the defendant "became

belligerent, began cursing, and tried to push past the guard" as

well as attempted to take off the jacket in which the drugs were

found).

     Here, during his arrest for trespassing on park property,

appellant had remained calm when handcuffed and placed in the

police car.    These facts belie appellant's argument that he

acted in an extreme fashion because he was upset by being

detained on the trespassing charge.     Only when he learned that

his car would be searched and towed did he attempt to distract

the officer.   This behavior, when viewed within the totality of

the circumstances, supports the trial court's finding that

appellant was aware of the presence and the character of the



                                - 6 -
drugs and that the drugs were subject to his dominion and

control.

     While each factor, occupancy, proximity, and behavior,

individually may not be sufficient to show knowledge, dominion,

and control, these factors converge in this case, allowing the

trial court to convict appellant of possession of cocaine.     See

Gregory v. Commonwealth, 28 Va. App. 393, 398-99, 504 S.E.2d

886, 888-89 (1998) ("A person's ownership or occupancy of

premises on which the subject item is found, proximity to the

item, and statements or conduct concerning the location of the

item are probative factors to be considered in determining

whether the totality of the circumstances supports a finding of

possession.").

     From the evidence presented, the trial court could properly

conclude appellant was guilty of possession of cocaine.   We

affirm the conviction.

                                                          Affirmed.




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