                      COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Bumgardner and Clements
Argued at Richmond, Virginia


ROSALIND M. MABRY
                                           MEMORANDUM OPINION * BY
v.   Record No. 1069-01-2               JUDGE JEAN HARRISON CLEMENTS
                                              OCTOBER 22, 2002
COMMONWEALTH OF VIRGINIA


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

          Ali J. Amirshahi for appellant.

          Jennifer R. Franklin, Assistant Attorney
          General (Jerry W. Kilgore, Attorney General,
          on brief), for appellee.


     Rosalind M. Mabry was convicted in a bench trial of

possession of cocaine. 1   On appeal, he contends the evidence was

insufficient to sustain the conviction.    We disagree and affirm

the conviction.

     As the parties are fully conversant with the record in this

case and because this memorandum opinion carries no precedential

value, this opinion recites only those facts and incidents of the


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
     1
       We note that Mabry was originally charged with possession
of cocaine with intent to distribute, in violation of Code
§ 18.2-248. At trial, the court struck the evidence "as to the
intent" and entered an order finding Mabry guilty of possession
of cocaine. However, the sentencing order erroneously recited
the offense as a violation of Code § 18.2-248 rather than Code
§ 18.2-250.
proceedings as necessary to the parties' understanding of the

disposition of this appeal.

     When the sufficiency of the evidence is challenged on appeal,

we review the evidence "in the light most favorable to the

Commonwealth, granting to it all reasonable inferences fairly

deducible therefrom."   Bright v. Commonwealth, 4 Va. App. 248,

250, 356 S.E.2d 443, 444 (1997).   We will not disturb the

conviction unless it is plainly wrong or unsupported by the

evidence.   Sutphin v. Commonwealth, 1 Va. App. 241, 243, 337

S.E.2d 897, 898 (1985).

     Mabry claims the Commonwealth failed to prove beyond a

reasonable doubt that he constructively possessed the cocaine

found in a suitcase inside the home by the police.   Specifically,

he argues the evidence presented at trial was insufficient to show

he was aware of the presence and character of the cocaine or that

he exercised dominion and control over it.   Furthermore, he adds,

no drugs were found on him, and he made no statements

acknowledging the presence of the cocaine.   Thus, he concludes,

the Commonwealth's evidence, which was merely circumstantial, did

not exclude the reasonable hypothesis of innocence that the man

the officer saw outside in the yard had discarded the cocaine in

the suitcase in the bedroom without Mabry's knowledge.

     "In order to convict a person of illegal possession of an

illicit drug, the Commonwealth must prove beyond a reasonable

doubt that the accused was aware of the presence and character of

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the drug and that the accused consciously possessed it."   Walton

v. Commonwealth, 255 Va. 422, 426, 497 S.E.2d 869, 871 (1998).

"[P]roof of actual possession is not required; proof of

constructive possession will suffice."   Id. at 426, 497 S.E.2d

at 872.   Constructive possession may be established by "evidence

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

circumstances which tend to show that the [accused] was aware of

both the presence and the character of the substance and that it

was subject to his dominion and control."    Powers v.

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

     Occupancy or ownership of the premises where the illegal

drug is found is a factor that may be considered in deciding

whether the accused was in possession of the illegal drug.     See

Walton, 255 Va. at 426, 497 S.E.2d at 871.   Possession need not

be exclusive; it may be shared.   See Gillis v. Commonwealth, 215

Va. 298, 301-02, 208 S.E.2d 768, 771 (1974) (noting that

occupancy of premises as a cotenant is a factor to be considered

with other evidence in determining whether accused had

constructive possession of illegal drugs).   Thus, in resolving

the issue of constructive possession, "the Court must consider

'the totality of the circumstances disclosed by the evidence.'"

Archer v. Commonwealth, 26 Va. App. 1, 12, 492 S.E.2d 826, 832

(1997) (quoting Womack v. Commonwealth, 220 Va. 5, 8, 255 S.E.2d

351, 353 (1979)).



                               - 3 -
     "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 (1993) (quoting Garland v. Commonwealth, 225

Va. 182, 184, 300 S.E.2d 783, 784 (1983) (quoting Carter v.

Commonwealth, 223 Va. 528, 532, 290 S.E.2d 865, 867 (1982))).

"However, the Commonwealth need only exclude reasonable

hypotheses of innocence that flow from the evidence, not those

that spring from the imagination of the defendant."     Hamilton v.

Commonwealth, 16 Va. App. 751, 755, 433 S.E.2d 27, 29 (1993).

"Whether an alternative hypothesis of innocence is reasonable is

a question of fact and, therefore, is binding on appeal unless

plainly wrong."     Archer, 26 Va. App. at 12-13, 492 S.E.2d at 832

(citation omitted).    "While no single piece of evidence may be

sufficient, the 'combined force of many concurrent and related

circumstances, each insufficient in itself, may lead a

reasonable mind irresistibly to a conclusion.'"     Stamper v.

Commonwealth, 220 Va. 260, 273, 257 S.E.2d 808, 818 (1979)

(quoting Karnes v. Commonwealth, 125 Va. 758, 764, 99 S.E. 562,

564 (1919)).

     Here, the evidence established that Officer John Barkley of

the Richmond Police Department responded to a dispute call from

Ms. Wallace at a residence on Swanson Road in Southside

                                 - 4 -
Richmond.   Mabry and Ms. Wallace met Officer Barkley at the

doorway of the residence.   Mabry told Barkley that "he just

wanted to leave and he just want[ed] to go in and get his

suitcase and his things and just leave and didn't want to have

any more problems."   Because the call had indicated that

firearms were involved, Barkley would not let either Wallace or

Mabry go back in the house.   While the officer was there, he saw

a "gentleman . . . outside of the residence in the yard who

left."

     Barkley, after obtaining permission to search the

residence, entered the house and conducted a search for

firearms.   In the bedroom, he saw an open suitcase with men's

clothing in it on the floor at the foot of the bed.    In the

suitcase, Barkley found a pair of men's white socks that had a

substance later determined to be cocaine inside.   In that same

room, Barkley also found a wallet containing Mabry's

identification on a nightstand next to the bed.    The officer

further observed men's and women's clothes scattered about the

room, as well as in a dresser in the room and in the room's

closet.   Barkley also found three digital scales in the room,

one of which was in plain view on top of a dresser.    He also

recovered sandwich baggies from atop another dresser and two

handguns from between the mattress and box spring of the bed.

In the course of his search, Officer Barkley observed no other

men in the house or any other suitcases.

                               - 5 -
     Viewed in the light most favorable to the Commonwealth,

such evidence, considered in its totality, clearly supports the

finding that Mabry knew of the presence and character of the

cocaine and that he intentionally and consciously had

constructive possession of it.    Not only was Mabry's wallet

found along with drug paraphernalia in the bedroom where the

cocaine was hidden in a suitcase containing men's clothes, no

other suitcases were found in the house.   Mabry specifically

told Barkley, upon the officer's arrival at the house, that he

wanted to retrieve his suitcase from inside the house and leave.

Likewise, the police officer observed no other men in the house.

The only reasonable conclusion is that the one suitcase found in

the house belonged to Mabry.

     Officer Barkley did see a man in the yard outside the house

who left, but nothing even remotely connected that man to the

suitcase or cocaine found inside the house.   "The Commonwealth

is not required to prove that there is no possibility that

someone else may have planted, discarded, abandoned or placed

the drugs . . . [where they are found by the police]."    Brown v.

Commonwealth, 15 Va. App. 1, 10, 421 S.E.2d 877, 883 (1992) (en

banc).

     Hence, we hold that the evidence was sufficient to support

Mabry's conviction for possession of cocaine and that the




                                 - 6 -
conviction is not plainly wrong.   Accordingly, we affirm the

conviction.

                                                         Affirmed.




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