                     COURT OF APPEALS OF VIRGINIA


Present: Judges Baker, Annunziata and Overton
Argued at Norfolk, Virginia


CARZELL BENTON, S/K/A
 CARZELLE BENTON
                                          MEMORANDUM OPINION * BY
v.   Record No. 1510-96-1               JUDGE ROSEMARIE ANNUNZIATA
                                               MAY 13, 1997
COMMONWEALTH OF VIRGINIA


         FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
                       Thomas S. Shadrick, Judge
             Theresa B. Berry (Samford & Berry, P.C., on
             brief), for appellant.

             Daniel J. Munroe, Assistant Attorney General
             (James S. Gilmore, III, Attorney General, on
             brief), for appellee.



     Following a bench trial, appellant, Carzell Benton, was

convicted of possessing a fire bomb in violation of Code

§ 18.2-85.    He contends the evidence is insufficient to support

his conviction.    We disagree and affirm his conviction.

                                  I.

     The pertinent facts follow.       Officer Phillips approached

appellant and his companion, Eric Kennerly, in a Virginia Beach

convenience store parking lot.    Phillips asked who owned the

vehicle appellant and Kennerly stood near; Kennerly responded

that it belonged to his fiancee.       Kennerly informed Phillips that

he was the driver of the vehicle and that the two men were headed

to New York.    Appellant, who sat on the sidewalk at the front of
     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
the vehicle, told Phillips that the two men had been robbed in

Norfolk earlier that evening, and he inquired of Phillips what

action to take.   During the conversation, Phillips noticed a

white plastic, cylindrical object, eight or ten inches long,

resting on the vehicle's passenger side floorboard.    Kennerly

became nervous when Phillips asked about the object.   To

Phillips, the object appeared to be drug paraphernalia.     Kennerly

retrieved the object, and Phillips placed it in his belt.    Based

on information provided by Kennerly, Phillips removed the object

from his belt, placed it on the ground and contacted the bomb

squad.   Sergeant Batten testified as an explosives expert that

the object was a military artillery simulator and that the

labelling and tracking number on the device had been removed.

The device was later detonated safely.
     Captain Foster of the Virginia Beach Fire Department

interviewed appellant with respect to the incident.    Appellant

told Foster he was aware of the presence of the device in the

vehicle.   Appellant stated that Kennerly had found the object on

the ground at a Norfolk gas station earlier that evening and that

appellant believed it to be a can of hair spray or a fire

extinguisher.   Appellant told Foster that he did not realize the

object was an explosive device and that the men had taken it

because they were curious.   Appellant stated that the men had

been staying with friends in Norfolk for two or three days and

had gotten lost in Virginia Beach on their way back to New York.




                               - 2 -
He also told Foster that his wallet had been stolen when the men

were robbed in Norfolk earlier that evening and that he did not

report the robbery because he did not know the location of the

police station.   Foster testified that Kennerly's account of the

evening's events was inconsistent with that of appellant.

     Appellant testified in his defense.     He stated he had come

to Norfolk to show his line of designer clothes.    He stated he

had been staying with a friend of his in Norfolk, but he could

not remember the individual's name because he knew "a lot of

people."   Appellant acknowledged that he was aware of the

presence of the fire bomb in the vehicle but stated he thought it

was trash that Kennerly had picked up and put in the car.

Concerning the robbery, he testified that only Kennerly had been

robbed, that he had been a half-block away at the time.    He

stated he did not take a wallet with him when he left New York.

Appellant testified he and Kennerly stopped at the convenience

store to get directions to the Chesapeake Bay Bridge, after

driving around lost for over an hour.    Appellant stated that,

intending to return to New York, he and Kennerly did not attempt

to report the robbery; they were concerned with the vehicle's

malfunctioning and did not want to stop for fear of being robbed

again.   Appellant stated that he intended to report the robbery

when the two men reached New York.     Appellant testified that,

following the robbery, he and Kennerly had only $10 between them.

When confronted with the proposition that $10 would not get the



                               - 3 -
men back to New York, appellant stated that $10 was enough to get

to his aunt's house in Richmond.   Appellant stated he never

contacted his aunt because he panicked after the robbery.

     With respect to appellant's testimony, the trial court made

the following observation:
          I would venture to say that if [appellant]
          had just testified on the stand and the next
          witness was sitting in the courtroom
          listening to his testimony, the next witness
          still could not give consistent testimony
          with [appellant's] testimony.
                I've had lots of people give false
           testimony in this courtroom; and,
           [appellant], I've got to tell you that you
           rank right up there with the worst. Your
           testimony is totally incredible -- totally.


The court convicted appellant of possession of the fire bomb.

                                II.

     When considering the sufficiency of the evidence on appeal

in a criminal case, this Court views the evidence in a light most

favorable to the Commonwealth, granting to it all reasonable

inferences fairly deducible therefrom.     Higginbotham v.
Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975).     On

review, this Court does not substitute its own judgment for that

of the trier of fact.   Cable v. Commonwealth, 243 Va. 236, 239,

415 S.E.2d 218, 220 (1992).   The trial court's judgment will not

be set aside unless it appears that the judgment is plainly wrong

or without evidence to support it.     Code § 8.01-680; Josephs v.

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

banc).   "It is fundamental that `the credibility of witnesses and



                               - 4 -
the weight accorded their testimony are matters solely for the

fact finder who has the opportunity of seeing and hearing the

witnesses.'"   Collins v. Commonwealth, 13 Va. App. 177, 179, 409

S.E.2d 175, 176 (1991) (quoting Schneider v. Commonwealth, 230

Va. 379, 382, 337 S.E.2d 735, 736-37 (1985)).    Where the court

finds a defendant's testimony to be incredible, it is entitled to

infer that the defendant lied to conceal his guilt.     Speight v.

Commonwealth, 4 Va. App. 83, 88, 354 S.E.2d 95, 98 (1987) (en

banc).
     The Commonwealth's case was built on circumstantial evidence

of constructive possession.   "Circumstantial evidence is

sufficient to support a conviction as long as it excludes every

reasonable hypothesis of innocence."     Price v. Commonwealth, 18

Va. App. 760, 767, 446 S.E.2d 642, 646 (1994).
          "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 [contraband] and that it was
          subject to his dominion and control.'"

McGee v. Commonwealth, 4 Va. App. 317, 322, 357 S.E.2d 738, 740

(1987) (quoting Drew v. Commonwealth, 230 Va. 471, 473, 338

S.E.2d 844, 845 (1986)).   Neither proximity to contraband nor

presence on the premises where it is found is alone sufficient to

establish constructive possession.     E.g., Brown v. Commonwealth,

15 Va. App. 1, 9, 421 S.E.2d 877, 882-83 (1992).    However, both

proximity and presence are factors the trial court may consider


                               - 5 -
in evaluating the totality of circumstances.     Lane v.

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

Brown, 15 Va. App. at 10, 421 S.E.2d at 883; Castaneda v.

Commonwealth, 7 Va. App. 574, 584, 376 S.E.2d 82, 87 (1989).      An

accused's knowledge of the presence of contraband "may be proved

by evidence of acts, declarations or conduct of the accused from

which the inference may be fairly drawn that [the accused] knew

of the existence of [contraband] at the place where [it was]

found.'"     Hairston v. Commonwealth, 5 Va. App. 183, 186, 360

S.E.2d 893, 895 (1987) (quoting People v. Pigrenet, 26 Ill. 2d

224, 227, 186 N.E.2d 306, 308 (1962)).

     We find sufficient evidence to support the trial court's

finding beyond a reasonable doubt that appellant possessed the

fire bomb.    Appellant was a passenger in Kennerly's vehicle, and

the fire bomb was found on the vehicle's passenger side

floorboard.    Appellant was aware of the object's presence in the

vehicle.   Although appellant denied knowledge that the object was

a fire bomb, the trial court found his testimony to be totally

incredible.    That finding is supported by the record.    Appellant

gave conflicting accounts concerning his belief about the nature

of the object, the alleged robbery, his presence in the Tidewater

area and the "friend" with whom he had been staying but whose

name he could not recall.    Appellant also offered an

incomprehensible explanation of his and Kennerly's plan to travel

to New York when they were arrested.     The trial court was



                                 - 6 -
entitled to infer from appellant's "totally incredible" testimony

that appellant had lied about his knowledge of the nature of the

fire bomb, as well as the events surrounding his arrest, to

conceal his guilt.

     The decision of the trial court is accordingly affirmed.

                                                        Affirmed.




                              - 7 -
