                       COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Bray and Senior Judge Overton
Argued at Norfolk, Virginia


SCLESTER UZZLE, JR.
                                             MEMORANDUM OPINION * BY
v.       Record No. 0192-98-1                 JUDGE RICHARD S. BRAY
                                                  APRIL 13, 1999
COMMONWEALTH OF VIRGINIA


              FROM THE CIRCUIT COURT OF ISLE OF WIGHT COUNTY
                        Westbrook J. Parker, Judge

              Michael J. Lutke, Assistant Public Defender,
              for appellant.

              John H. McLees, Jr., Assistant Attorney
              General (Mark L. Earley, Attorney General, on
              brief), for appellee.


         Sclester Uzzle, Jr. (defendant) was convicted in a bench

trial for possession of cocaine with intent to distribute, a

violation of Code § 18.2-248.      On appeal, defendant challenges

the sufficiency of the evidence to support the conviction.

Finding no error, we affirm 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.

         In reviewing the sufficiency of the evidence, we examine

the record in “the light most favorable to the Commonwealth,


     *
     Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
granting to it all reasonable inferences fairly deducible

therefrom,” Martin v. Commonwealth, 4 Va. App. 438, 443, 358

S.E.2d 415, 418 (1987), discarding all conflicting evidence of

the accused.    See Lea v. Commonwealth, 16 Va. App. 300, 303, 429

S.E.2d 477, 479 (1993).    The credibility of witnesses, the

weight accorded testimony, and the inferences to be drawn from

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 a trial court will be disturbed on

appeal only if plainly wrong or unsupported by the evidence.

See Code § 8.01-680.

                                 I.

     On the evening of May 31, 1997, Isle of Wight Deputy

Sheriff Timothy Worrell was engaged in undercover surveillance

of a parking area that served the Windsor Court Apartments.

Positioned in the rear of an unmarked vehicle and aided by a

telescopic device, Worrell observed the activities of defendant

and an unidentified man from 8:05 p.m. until 9:30 p.m.   Worrell

testified that defendant

          appeared to be working with [the other] male
          . . . [who] would approach . . . vehicles,
          make verbal contact, . . . and then would
          make some type of hand-to-hand exchange.
          After this would take place, [Worrell] could
          see what appeared to be money being handed
          to [defendant] from the other . . . male.




                                - 2 -
As Worrell watched, the man approached “ten to twelve” cars and,

“after every . . . two to three . . ., he and [defendant] would

get together.”

     Worrell further recalled that,

               [a]t 9:30 p.m., the . . . unknown . . .
          male left the premises . . . and [defendant]
          began approaching vehicles . . . . After he
          would walk up to the car [and briefly talk]
          with the people, he would leave and go
          behind . . . a six, seven foot fence
          enclosed around [a] dumpster. He would
          . . . then come out and walk back up to the
          vehicle, make some type of reaching in
          motion as if he was handing someone
          something.

Defendant interacted with the occupants of “four or five

vehicles” and walked behind the dumpster, enclosed on three

sides by the fence, on each occasion.   Worrell noticed that

defendant went to a white Honda car parked “right behind the

dumpster” “two or three times,” “raise[d] the trunk and then

shut the [lid] back down,” but was unable to “tell if

[defendant] was fiddling or anything” in the trunk.   Worrell

acknowledged that “other people . . . were in the . . . area,”

although “not in the close proximity that [defendant] went to

the fence.”

     At approximately 10:45 p.m., Worrell summoned Sheriff’s

Captain Joseph Willard to the scene.    As Willard and Deputy

Lindsay arrived, defendant was seen “giving . . . change” to an

unknown woman.   Willard advised defendant “why [they] were



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there,” and “did [a] pat . . . down . . . [for] weapons.”   A

consent search of defendant’s person produced two pagers and

“some change.”    Willard communicated his findings to Worrell,

and Worrell directed him “to the dumpster site.”   During the

encounter, defendant was “gesturing his eyes towards the

dumpster area.”   When Willard “checked there,” he “found two

canisters sitting on the rail inside of the fence,” “just a hand

reach in,” at a point where the “fence was leaned back.”    Upon

inspection, Willard discovered that the canisters contained

sixteen “rocks” of cocaine.

     A subsequent consent search of the Honda revealed an open

box in the trunk which contained “a wad of U.S. currency folded

up and stuck beside [a] distributor cap.”   The currency totaled

$586, specifically, (1) $100 bill, (1) $50 bill, (20) $20 bills,

(3) $10 bills, (1) $5 bill, and (1) $1 bill.   Defendant claimed

that his sister owned the Honda and denied knowledge of the

money.

     Qualified as an expert in the sale and distribution of

cocaine in Isle of Wight County, Worrell testified that “[i]t’s

very common for cocaine to be packaged in a container like [the

canisters found].   They take the cocaine out of the container

and hand the rock to the [purchaser]” without separate

packaging.   Worrell opined that each rock would sell for $20 and

that a $20 bill was the customary currency in such transactions.



                                - 4 -
     Defendant’s wife testified that she owned the vehicle and

had placed the money in the trunk, hidden in a “closed” box and

unknown to defendant.   Other defense witnesses testified that

defendant passed them cigarettes from the car while they talked

with him in the parking area at approximately 10:00 p.m. on the

offense date.   Defendant’s niece recalled speaking with him from

her car “around 10:00 p.m.”    Defendant testified that he had

arrived at the Windsor Court Apartments to “play cards” in the

early afternoon and “went outside . . . to stretch” at

approximately 9:30 or 10:00 p.m. for “about thirty-five

minutes.”   He denied approaching any vehicles earlier in the

evening, opening the trunk of the Honda, or walking behind the

dumpster.

                                 II.

     It is well settled that

            possession of a controlled substance may be
            actual or constructive. “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.’”

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

(1987) (citations omitted).    “Circumstantial evidence is as

competent and is entitled to as much weight as direct evidence,




                                - 5 -
provided it 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)

(citations omitted), cert. denied, 465 U.S. 1109 (1984).

However, the Commonwealth “‘is not required to disprove every

remote possibility of innocence, but is, instead, required only

to establish guilt of the accused to the exclusion of a

reasonable doubt.’”   Cantrell v. Commonwealth, 7 Va. App. 269,

289, 373 S.E.2d 328, 338 (1988) (citation omitted).    “The

hypotheses which the prosecution must reasonably exclude are

those ‘which flow from the evidence itself, and not from the

imagination of defendant’s counsel.’”     Id. at 289-90, 373 S.E.2d

at 338-39 (citation omitted).

     Here, the evidence disclosed that both defendant and his

companion were repeatedly approaching cars and engaging in

exchanges with the occupants over a period of several hours.

The unidentified man was seen occasionally passing money to

defendant.   Later, while alone, defendant continued to stop and

converse with persons in automobiles, disappear behind the

dumpster in the vicinity of the hidden cocaine, return to the

waiting car and effect an exchange.     He sometimes opened the

trunk of the Honda, parked adjacent to the dumpster, which

contained substantial cash in denominations consistent with the

sale of cocaine “rocks” like those found in the canisters.



                                - 6 -
Additionally, defendant possessed two pagers, “regularly

recognized . . . tools of the drug trade.”   White v.

Commonwealth, 25 Va. App. 662, 668, 492 S.E.2d 451, 454 (1997)

(en banc).

     Such circumstances sufficiently proved that defendant was

distributing cocaine to persons in automobiles from a cache

within the dumpster fence and depositing the proceeds in the

trunk of his wife’s car.   Defendant’s lies to police, and,

later, at trial, provided further indicia of guilt.     See, e.g.,

Daung Sam v. Commonwealth, 13 Va. App. 312, 320, 411 S.E.2d 832,

837 (1991).

     Accordingly, we affirm the decision of the trial court.

                                                         Affirmed.




                               - 7 -
Benton, J., dissenting.

     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 [accused] 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) (quoting Powers v. Commonwealth, 227

Va. 474, 476, 316 S.E.2d 739, 740 (1984)).    "But mere proximity

to a controlled drug is insufficient to establish possession."

Fogg v. Commonwealth, 216 Va. 394, 395, 219 S.E.2d 672, 673

(1975).

          [P]robability of guilt is insufficient to
          warrant a criminal conviction. Suspicious
          circumstances "'no matter how grave or
          strong, are not proof of guilt sufficient to
          support a verdict of guilty. The actual
          commission of the crime by the accused must
          be shown by evidence beyond a reasonable
          doubt to sustain his conviction.'"
          Suspicious circumstances alone are not
          sufficient to prove knowing possession of a
          controlled substance.

Burchette v. Commonwealth, 15 Va. App. 432, 438-39, 425 S.E.2d

81, 86 (1992) (citations omitted).

     The evidence proved that Sclester Uzzle, Jr. did not

actually possess cocaine.    He had no cocaine on his person and

no evidence proved that he touched the containers of cocaine

that the police found sitting on a rail inside the fence, which



                                 - 8 -
surrounded three sides of the large trash "dumpster."   The

surveillance officer saw Uzzle go behind the fenced area but

could not see his activity because the dumpster obstructed the

officer's view.   The evidence proved that the fenced area was in

the parking area of an apartment complex and that other people

were walking by the fenced area.

     The officers detained neither the vehicles that Uzzle

approached nor any of the other persons who approached the

vehicles.   Thus, the officer could only have speculated as to

the nature of Uzzle's contact with those persons.   Indeed, the

conviction is based upon pure speculation concerning Uzzle's

activities.   In a criminal case, where the quantum of proof must

be beyond a reasonable doubt, the imperative to secure a

conviction free of speculation, surmise, and conjecture is

constitutionally based.   See In re Winship, 397 U.S. 358 (1970).

"[V]erdict[s] . . . based only upon speculation and conjecture

. . . cannot be permitted to stand."   Dunn v. Commonwealth, 222

Va. 704, 705-06, 284 S.E.2d 792, 793 (1981).

     For these reasons, I would reverse the conviction.




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