                    COURT OF APPEALS OF VIRGINIA


Present: Judges Baker, Coleman and Overton
Argued at Salem, Virginia


JOHN ARTHUR YIAADEY
                                         MEMORANDUM OPINION * BY
v.         Record No. 0025-97-3         JUDGE SAM W. COLEMAN III
                                           DECEMBER 23, 1997
COMMONWEALTH OF VIRGINIA


           FROM THE CIRCUIT COURT OF THE CITY OF STAUNTON
                   Rudolph Bumgardner, III, Judge
           John R. Hooe, III, Assistant Public Defender,
           for appellant.

           John K. Byrum, Jr., Assistant Attorney
           General (Richard Cullen, Attorney General, on
           brief), for appellee.



     John Arthur Yiaadey was convicted for possession of cocaine,

a schedule II controlled substance, in violation of Code

§ 18.2-250.   The issue on appeal is whether the evidence was

sufficient to prove that Yiaadey constructively possessed

cocaine.   We find the evidence sufficient and affirm the

conviction.

     The Commonwealth may prove possession of a controlled

substance by showing either actual or constructive possession of

the contraband.   White v. Commonwealth, 24 Va. App. 446, 452, 482

S.E.2d 876, 879 (1997).    "To support a conviction based on

constructive possession, 'the Commonwealth must point to evidence

of acts, statements, or conduct of the accused or other facts or

     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
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.'"    Id. (quoting McGee v.

Commonwealth, 4 Va. App. 317, 322, 357 S.E.2d 738, 740 (1987)

(other citation omitted)).   A defendant's possession need not be

exclusive; a person may violate Code § 18.2-250 by jointly

possessing or sharing drugs with another.    See Gillis v.

Commonwealth, 215 Va. 298, 300, 208 S.E.2d 768, 770 (1974)

(upholding trial court finding that co-occupants of apartment

jointly possessed hash pipe and marijuana which was found in open

view in area shared by both occupants).
     In order to prove constructive possession, the Commonwealth

may, and frequently must, rely on circumstantial evidence.    See

Burchette v. Commonwealth, 15 Va. App. 432, 434, 425 S.E.2d 81,

83 (1992).   Although the Commonwealth's evidence need not

disprove every remote possibility of innocence, see Cantrell v.

Commonwealth, 7 Va. App. 269, 289, 373 S.E.2d 328, 338 (1988), it

must "'exclude every reasonable hypothesis of innocence.'"
Pemberton v. Commonwealth, 17 Va. App. 651, 655, 440 S.E.2d 420,

422 (1994) (quoting Garland v. Commonwealth, 225 Va. 182, 184,

300 S.E.2d 783, 784 (1983)).

     On appeal, we view the evidence in the light most favorable

to the Commonwealth and grant to it all reasonable inferences

therefrom.   Higginbotham v. Commonwealth, 216 Va. 349, 352, 218

S.E.2d 534, 537 (1975).   So viewed, the evidence was sufficient



                               - 2 -
to support the trial court's finding that Yiaadey constructively

possessed cocaine.

     Staunton Police Investigator Mark Diehl and other officers

went to the apartment of Jaythea Dunson with a warrant to search

the premises.   After knocking and announcing their presence, the

officers entered and in a small back room of the apartment found

Yiaadey, a twenty-eight-year-old man from the District of

Columbia, and Diron Holmes, an eighteen-year-old man from Oxon

Hill, Maryland.    Investigator Diehl observed eleven packets of

cocaine lying in open view on the floor approximately five to six

feet from where Yiaadey had been standing.   Diehl observed

Yiaadey's open wallet, which contained three dollars, lying next

to Holmes on a sofa; an additional twenty-seven dollars on the

sofa near the wallet; and $400 in cash scattered in front of and

behind the sofa.    Additionally, the officers seized $430 in cash

from Holmes' person; a pager found on Yiaadey; and a pager and a

notebook identified as Holmes' containing phone listings, which

were located on a coffee table near the sofa.   At first, Yiaadey

denied knowing either Holmes or Dunson.   However, he later stated

that he had rented a car four days earlier to drive Holmes from

Maryland to Staunton and that he had now returned to drive Holmes

back to Maryland.
     From these facts, the trial court could reasonably conclude

that Yiaadey was aware of the presence and nature of the cocaine

and that he jointly and constructively possessed the cocaine




                                - 3 -
found in Dunson's apartment.   Packets of cocaine were found in

open view a few feet from Yiaadey.     Although proximity to drugs

is not alone sufficient to prove possession, it is "'a factor to

consider when determining whether the accused constructively

possessed [them].'"   White, 24 Va. App. at 452, 482 S.E.2d at 879

(quoting Brown v. Commonwealth, 15 Va. App. 1, 9, 421 S.E.2d 877,

882 (1992) (en banc)).   In addition, Yiaadey gave inconsistent

explanations to the police for his presence with Holmes in

Staunton.
     Furthermore, the evidence shows that Yiaadey drove a long

distance with Holmes to Staunton for no apparent purpose and

returned several days later to take him back.    But, most

important, the drugs were located in plain view where Yiaadey

would know of the obvious presence, nature, and character of the

substance.   Furthermore, the officers found Yiaadey's wallet

lying open next to Holmes with several hundred dollars in

currency scattered around and behind the sofa.    Significantly,

the $3 in Yiaadey's wallet, the $27 next to his wallet, and the

$400 around the sofa totaled the same amount found on Holmes, a

circumstance from which the fact finder could conclude that the

two had evenly divided a sum of money.    The foregoing facts are

sufficient for the fact finder to infer that Yiaadey and Holmes

participated in a drug operation, that they jointly possessed the

cocaine, and that they equally divided the proceeds from the sale

of drugs.



                               - 4 -
     The appellant urges us to accept Holmes' testimony as a

reasonable hypothesis of his innocence.   However, the trial court

was not required to give any weight to his testimony.   In a bench

trial, it is within the province of the trial judge to ascertain

a witness' credibility and to accept or reject a witness'

testimony.   Bridgeman v. Commonwealth, 3 Va. App. 523, 528, 351

S.E.2d 598, 601 (1986).   Although Holmes testified that he alone

possessed the cocaine without Yiaadey's knowledge and that he

took the cocaine from his pocket and threw it on the floor when

the police arrived, the trial court was not required to believe

that testimony or his account of Yiaadey unwittingly bringing him

to Staunton to sell drugs.   The Commonwealth's evidence was

sufficient to exclude every reasonable hypothesis of Yiaadey's

innocence.
     For these reasons, we affirm the conviction.

                                                        Affirmed.




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