                       COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Bray and Bumgardner
Argued at Salem, Virginia


RODNEY ARZAN COBBS
                                           MEMORANDUM OPINION * BY
v.   Record No. 1692-99-2                   JUDGE RICHARD S. BRAY
                                                JUNE 27, 2000
COMMONWEALTH OF VIRGINIA


           FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                     James B. Wilkinson, Judge

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

           (Mark L. Earley, Attorney General, Amy L.
           Marshall, Assistant Attorney General, on
           brief), for appellee. Appellee submitting on
           brief.


     Rodney Arzan Cobbs (defendant) was convicted in a bench trial

for possessing cocaine with intent to distribute.       On appeal, he

complains that the evidence was insufficient to support the

conviction. 1   We agree and reverse the trial court.

     The parties are fully conversant with the record, and this

memorandum opinion recites only those facts necessary to a

disposition of the appeal.




     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
     1
       Defendant also challenges a conviction in the trial court
for possession of heroin with intent to distribute. However, an
appeal was granted only "as to appellant's cocaine conviction."
                                   I.

     "On appeal, 'we review the evidence in the light most

favorable to the Commonwealth, granting to it all reasonable

inferences fairly deducible therefrom.'"    Archer v. Commonwealth,

26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997) (citation omitted).

The credibility of the witnesses, the weight accorded their

testimony, and the inferences drawn from the proven facts are

matters to be determined by the fact finder.     See Long v.

Commonwealth, 8 Va. App. 194, 199, 379 S.E.2d 473, 476 (1989).

The judgment of the trial court will not be disturbed unless

plainly wrong or unsupported by evidence.   See Code § 8.01-680.

     Viewed accordingly, the evidence disclosed that, on

January 29, 1999, Richmond Police Officers Michael Musselwhite and

David Nauroz executed a search warrant at 10 East 19th Street, the

"downstairs apartment" of a duplex residence.    Police found the

entry door to the building unlocked and entered a "common foyer,"

which provided access, through separate doors, to the apartment, a

"storage area" and the "upstairs apartment." 2

     The entry door into the downstairs apartment was ajar and

Nauroz observed defendant "laying on the couch" and a "female"


     2
       In the foyer, beneath a sweater "at the base" of the door
into the storage area, police found a "black nylon pouch" that
contained two grams of heroin, packaged in 31 individual "glassine
envelopes," 2.326 grams of cocaine wrapped in seven "plastic bag
corners," razorblades, and "numerous unused syringes." However,
the trial court found the evidence insufficient to establish that
defendant possessed such items.


                               - 2 -
"sitting in a chair," both in the "living room."   Entering the

apartment, police observed "one long room," divided by open

doorways into a living room, bedroom and adjacent bath, and

kitchen.   A search was immediately undertaken, resulting in the

discovery and seizure of a "nylon bag containing a rock-like

substance," later identified as .137 grams of cocaine, "lying on

the [bedroom] floor in plain view," a syringe under the couch,

three cellular phones, a pager under the refrigerator, "numerous

[plastic] baggies with corners cut out," 3 an empty sandwich bag

box in the kitchen trash can, and $166 on defendant's person.

Also in a trash can "at the rear door outside [the apartment],"

police found "numerous . . . glassine envelopes that appear[ed] to

have been used and discarded."

     Christine Hilton, an admitted "drug addict" then "going with"

defendant, was found inside the bathroom, together with her purse,

which contained .302 grams of heroin, a syringe, and a "rental

agreement" for a television, executed by both Hilton and

defendant, naming the two as "Renter," at the apartment address.

During trial, Hilton denied she and defendant resided in the

apartment, but admitted ownership of the heroin and cocaine seized

during the search.



     3
       Richmond Police Officer Thomas Lloyd, qualified as an
"expert in street level distribution," testified that "[d]rug
dealers often . . . cut out" the corners of "plastic sandwich
bags" and package "an individual sale unit of crack cocaine
. . . inside [the] corner."

                                 - 3 -
                                 II.

     In challenging the sufficiency of the evidence to support his

conviction, defendant addresses only the possession element of the

offense.

            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)

(citation omitted).   "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).

Circumstantial evidence probative of an intent to distribute drugs

"cannot be used to 'bootstrap' proof of the predicate fact that

[an accused] actually or constructively possessed" the contraband.

Scruggs v. Commonwealth, 19 Va. App. 58, 62, 448 S.E.2d 663, 665

(1994).    "[O]wnership or occupancy of the premises where the drug

is found does not create a presumption of possession[,]" but "may

be considered in deciding whether an accused possessed the drug."

Walton v. Commonwealth, 255 Va. 422, 426, 497 S.E.2d 869, 872

(1998).


                                - 4 -
        Here, evidence suggested that cocaine was both consumed and

packaged for distribution at the apartment, but failed to prove

beyond a reasonable doubt that defendant, resting on a couch in

the living area, was aware of both the presence and character of

the drug found on the bedroom floor, secreted within a "nylon

bag."    The record established only that defendant, while sharing

the apartment with an admitted user of both cocaine and heroin,

was on the premises with a third person when police discovered the

offending drug in an adjoining room.     Such circumstances support

the reasonable hypothesis that defendant did not consciously

possess cocaine that belonged to Hilton or, perhaps, another,

notwithstanding his awareness of Hilton's habits and related

activity.    See generally Huvar v. Commonwealth, 212 Va. 667, 668,

187 S.E.2d 177, 178 (1972) (presence in apartment that smelled of

marijuana, with substantial quantities of drugs in plain view, was

insufficient proof that Huvar "owned, possessed or exercised any

control over these specific drugs").

        Accordingly, we find the evidence insufficient to support the

conviction and reverse the trial court.

                                           Reversed and dismissed.




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