                   COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Fitzpatrick, Judges Elder and Clements
Argued at Richmond, Virginia


OMAR RASHAR CARRINGTON
                                           MEMORANDUM OPINION * BY
v.   Record No. 1909-00-2                   JUDGE LARRY G. ELDER
                                             SEPTEMBER 18, 2001
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
                    William R. Shelton, Judge

          Craig S. Cooley for appellant.

          Eugene Murphy, Assistant Attorney General
          (Mark L. Earley, Attorney General, on brief),
          for appellee.


     Omar Rashar Carrington (appellant) appeals from his bench

trial convictions for conspiring to distribute cocaine and

possessing cocaine with intent to distribute.     On appeal, he

contends the evidence was insufficient to support his

convictions.   We hold the evidence, viewed in the light most

favorable to the Commonwealth, was sufficient to support

appellant's convictions.    Thus, we affirm.

     Under familiar principles of appellate review, we must

examine the evidence in the light most favorable to the

Commonwealth, granting to its evidence all reasonable inferences

fairly deducible therefrom.    Martin v. Commonwealth, 4 Va. App.

     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
438, 443, 358 S.E.2d 415, 418 (1987).    Any element of a crime

may be proved by circumstantial evidence, e.g., Servis v.

Commonwealth, 6 Va. App. 507, 524, 371 S.E.2d 156, 165 (1988),

provided the evidence as a whole "is sufficiently convincing to

exclude every reasonable hypothesis except that of guilt,"

Coleman v. Commonwealth, 226 Va. 31, 53, 307 S.E.2d 864, 876

(1983).

     In assessing witness credibility, the fact finder may

accept the parts of a witness' testimony it finds believable and

reject other parts as implausible.     Moyer v. Commonwealth, 33

Va. App. 8, 28, 531 S.E.2d 580, 590 (2000) (en banc).    "The fact

that a witness makes inconsistent statements . . . does not

render his testimony . . . unworthy of belief. . . .    It is

firmly imbedded in the law of Virginia that the credibility of a

witness who makes inconsistent statements on the stand is a

question . . . for the . . . trier of the facts . . . ."

Swanson v. Commonwealth, 8 Va. App. 376, 378-79, 382 S.E.2d 258,

259 (1989).   Similarly, "[d]etermining the credibility of

witnesses who give conflicting accounts is within the exclusive

province of the [fact finder], which has the unique opportunity

to observe the demeanor of the witnesses as they testify."      Lea

v. Commonwealth, 16 Va. App. 300, 304, 429 S.E.2d 477, 479

(1993).




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                                A.

                 CONSPIRACY TO DISTRIBUTE COCAINE

     "A conspiracy is defined as 'an agreement between two or

more persons by some concerted action to commit an offense.'"

Wright v. Commonwealth, 224 Va. 502, 505, 297 S.E.2d 711, 713

(1982) (quoting Falden v. Commonwealth, 167 Va. 542, 544, 189

S.E. 326, 327 (1937)).   "In order to establish the existence of

a conspiracy, as opposed to mere aiding and abetting, the

Commonwealth must prove 'the additional element of preconcert

and connivance not necessarily inherent in the mere joint

activity common to aiding and abetting.'"     Zuniga v.

Commonwealth, 7 Va. App. 523, 527, 375 S.E.2d 381, 384 (1988)

(quoting United States v. Peterson, 524 F.2d 167, 174 (4th Cir.

1975)).   "The agreement is the essence of the conspiracy

offense," and "'the Commonwealth must prove beyond a reasonable

doubt that an agreement existed.'"     Id. at 527-28, 375 S.E.2d at

384 (quoting Floyd v. Commonwealth, 219 Va. 575, 580, 249 S.E.2d

171, 174 (1978)).

     Here, the evidence, viewed in the light most favorable to

the Commonwealth, established that Sherod Harrison and appellant

conspired to distribute cocaine to A.J. Starke, an undercover

police detective.   When Starke contacted Harrison to purchase

"an eight-ball" of cocaine, Harrison did not have enough cocaine

in his possession to make such a sale.    Harrison had a smaller

amount of cocaine in his possession, but he had obtained that

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cocaine from appellant and had not yet paid appellant for it.

Harrison then spoke to appellant "about whether . . . [he] could

get" the eight-ball of cocaine Starke wished to purchase, and

appellant said, "[W]e can do that."     Thereafter, both appellant

and Harrison spoke to Starke on appellant's cellular telephone

to confirm their ability to make the sale, to negotiate the

price, and to make arrangements to meet to complete the

transaction.   Harrison testified that he and appellant were "in

it together" and that appellant "knew that . . . [appellant was

the one who] was going to get the money [from the sale] . . .

because [Harrison] didn't have that type of product."

     That portions of the testimony of Sherod Harrison, a

witness for the Commonwealth, may have conflicted with the

testimony of Detective Starke and Antonio Connor, who also were

witnesses for the Commonwealth, was not dispositive.     The trial

court, as the finder of fact, was entitled to conclude Harrison

was testifying truthfully and to rely on Harrison's direct

testimony regarding his agreement with appellant in convicting

appellant of the conspiracy offense.

                                B.

         POSSESSION OF COCAINE WITH INTENT TO DISTRIBUTE

     "To convict a person of possession of illegal drugs 'the

Commonwealth must prove that the defendant was aware of the

presence and character of the drugs and that he intentionally

and consciously possessed them.'"      Castaneda v. Commonwealth, 7

                               - 4 -
Va. App. 574, 583, 376 S.E.2d 82, 86 (1989) (en banc) (quoting

Andrews v. Commonwealth, 216 Va. 179, 182, 217 S.E.2d 812, 814

(1975)).

            Possession need not be actual, exclusive, or
            lengthy in order to support a conviction;
            instead, the statute criminalizes
            constructive or joint possession of illegal
            drugs of any duration. Constructive
            possession of illegal drugs may be proven 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
            character of the substance and that it was
            subject to his dominion and control.'"

Wells v. Commonwealth, 32 Va. 775, 781, 531 S.E.2d 16, 19 (2000)

(quoting Burchette v. Commonwealth, 15 Va. App. 432, 434, 425

S.E.2d 81, 82 (1992) (quoting Drew v. Commonwealth, 230 Va. 471,

473, 338 S.E.2d 844, 845 (1986))).

     Here, the evidence established that appellant had at least

constructive possession of both the cocaine thrown out of his

father's car as the police attempted to stop it and the cocaine

subsequently found beneath the seat he occupied at the time of

the stop.   The evidence, viewed in the light most favorable to

the Commonwealth, established that the cocaine thrown out the

window belonged to both Harrison and appellant.   Harrison had

obtained the cocaine from appellant and had not yet paid him for

it, and Harrison testified that both he and appellant owned the

cocaine.    Thus, the evidence established that appellant was




                                - 5 -
aware of the presence and character of the cocaine thrown from

the window and that he possessed it jointly with Harrison.

     The evidence also established that appellant constructively

possessed the cocaine found beneath the vehicle's seat.

Harrison testified that he had seen appellant with cocaine in

his possession earlier in the day and that appellant indicated

he was able to help Harrison supply Detective Starke with an

eight-ball of cocaine.   Harrison saw appellant with the cocaine

in his pocket and subsequently observed appellant "fiddling with

his pockets" when the police attempted to stop their vehicle on

the way to meet Starke to make the promised sale of cocaine.

Appellant had no drugs on his person at the time of his arrest.

After the three were arrested, Connor overheard appellant say

"[he] had put some under his seat," and Detectives Starke and

Brown found a bag containing cocaine beneath the seat in which

appellant had been sitting at the time of the stop.   Both

Harrison and Connor testified the cocaine found beneath

appellant's seat did not belong to them.   Thus, the only

reasonable hypothesis flowing from the evidence, viewed in the

light most favorable to the Commonwealth, is that appellant

actually and then constructively possessed the 7.242 grams of

cocaine found beneath his seat.

     The same evidence which established the conspiracy also

proved appellant intended to distribute at least a portion of

the cocaine.   As to the cocaine thrown from the window,

                               - 6 -
appellant had allowed Harrison to take possession of it but

still retained an ownership interest in it and expected to

receive payment for it.   Thus, his constructive possession of

this smaller bag of cocaine was with an intent to distribute.

     In addition, the evidence established that appellant

intended to distribute a portion of the larger bag, the one

found beneath his seat, to Detective Starke.   Harrison and

appellant agreed to sell Detective Starke an eight-ball, or

three-and-one-half grams of cocaine, but the cocaine in

Harrison's possession amounted to no more than one-and-one-half

grams.   Appellant had actual or constructive possession of the

larger bag of cocaine as the trio traveled to meet Detective

Starke to consummate the sale.    Thus, the only reasonable

hypothesis flowing from the evidence of appellant's agreement

with Harrison to provide Starke with an eight-ball was that

appellant intended to distribute a portion of the larger bag of

cocaine, as well.

     For these reasons, we hold the evidence was sufficient to

support appellant's convictions for conspiracy to distribute

cocaine and possession of cocaine with intent to distribute.

Therefore, we affirm these convictions.

                                                          Affirmed.




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