                      COURT OF APPEALS OF VIRGINIA


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


DAMIEN MONTEZ MOSLEY, S/K/A
 DAMIEN MONTEZ MOSELEY
                                          MEMORANDUM OPINION * BY
v.   Record No. 2477-98-3                  JUDGE RICHARD S. BRAY
                                             DECEMBER 7, 1999
COMMONWEALTH OF VIRGINIA


         FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG
                    Richard S. Miller, Judge

          Margaret A. Nelson, Senior Assistant Public
          Defender, for appellant.

          Leah A. Darron, Assistant Attorney General
          (Mark L. Earley, Attorney General, on brief),
          for appellee.


     Damien Montez Mosley (defendant) was convicted in a bench

trial for possession of cocaine with intent to distribute,

possession of a firearm while in possession of cocaine, and

possession of a firearm by a convicted felon, violations of Code

§§ 18.2-248, -308.4, and -308.2, respectively.   On appeal, he

challenges the sufficiency of the evidence to support the

convictions.   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.


     *Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
                  In accordance with well established
             principles, we assess the sufficiency of the
             evidence to support a criminal conviction
             upon a review of the record "in the light
             most favorable to the Commonwealth, granting
             to it all reasonable inferences fairly
             deducible therefrom. The judgment of a
             trial court sitting without a jury is
             entitled to the same weight as a jury
             verdict and will not be set aside unless it
             appears from the evidence that the judgment
             is plainly wrong or without evidence to
             support it." "The weight which should be
             given to evidence and whether the testimony
             of a witness is credible are questions which
             the fact finder must decide."

Greene v. Commonwealth, 17 Va. App. 606, 607-08, 440 S.E.2d 138,

139 (1994).

     Viewed accordingly, the record discloses that, during the

evening hours of February 17, 1998, Lynchburg Police Investigators

Wayne Duff and K.D. Holyfield were patrolling the vicinity of the

Greenfield Apartments, "targeting" the recurring sale of illicit

drugs in the area.    Duff observed a man, suspected to be

defendant, "run . . . inside of [an apartment] building from the

breezeway."    Aware of an outstanding arrest warrant and Juvenile

Detention Order for defendant, Duff and Holyfield initiated an

investigation.    Acting on "prior information" given to Holyfield,

the two proceeded to Apartment 108, 1 knocked at the door, and the

tenant, Tanya Harper, admitted them to conduct a search for

defendant.


     1
       Duff was aware that defendant "stayed" somewhere in the
building which housed Apartment 108, although he "lived" nearby
with his grandmother.

                                 - 2 -
     Upon entry, the investigators observed "several . . . people"

in the "living room" and two men "walking up the hallway from the

bedroom-bathroom areas to the living room area."     After searching

several rooms for defendant, without success, Duff noticed an

individual "lying in the bed" of a darkened rear bedroom, "facing

away from the doorway."    After identifying himself, Duff demanded,

"let me see [your] hands and . . . face . . . me," and immediately

recognized and arrested defendant.      Defendant was discovered by

Duff approximately six minutes after he had been observed in the

breezeway.

     A search of the bedroom area by Duff revealed a .380 caliber

semi-automatic pistol, "loaded with a round in the chamber,"

hidden "[u]nderneath the box spring [of the bed] which was

elevated off the floor a few inches."     "Just to the left" of the

firearm were "five bags of off-white chunks," later determined to

be cocaine.    Both the weapon and the cocaine were "located

directly under . . . defendant's feet . . . while . . . lying in

the bed."    A search of defendant's person revealed a pager and

$1,695 cash.    Duff testified that the amount and the denominations

of the cash, together with the pager, were "typical" to "illegal

street-level distribution of cocaine."

     After Duff advised defendant of his Miranda rights, defendant

stated that he "just went up there . . . 15 or 20 minutes" before

the police.    He initially denied knowledge of the firearm, but,

when asked if his fingerprints would be found on the gun, recalled

                                - 3 -
that someone had previously "passed" him the weapon in the living

room.    Defendant explained to Duff that "people said that the

security guards had come up . . . and that's when he went into the

house.    And then he . . . touched the gun and they was, like, get

everything out of the house because security must have called."

He denied knowledge of the subject cocaine but had "seen plenty of

cocaine" in "the building" earlier that evening, some of which

"could have been this five" bags.    Defendant admitted selling

cocaine on prior occasions but denied personal use of the drug.

        In challenging the sufficiency of the evidence to support his

convictions, defendant addressed only the possession element of

the several offenses.

             To support a conviction based on
             constructive possession, as in this case,
             "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."

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)).     "Possession . . . need not always be

exclusive.    The defendant may share it with one or more persons"

and "[t]he duration of possession is immaterial."    Gillis v.

Commonwealth, 215 Va. 298, 302, 208 S.E.2d 768, 771 (1974).      "[A]

person may constructively possess [contraband] owned by another."

Harrison v. Commonwealth, 12 Va. App. 581, 585, 405 S.E.2d 854,

                                 - 4 -
857 (1991).   The "principles applicable to constructive possession

of drugs also apply to constructive possession of a firearm."

Archer v. Commonwealth, 26 Va. App. 1, 12, 49 S.E.2d 826, 831

(1997).

     "[O]wnership or occupancy of the premises where the drug [or

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

"may be considered in deciding whether an accused possessed the

[item]."   Walton v. Commonwealth, 255 Va. 422, 426, 497 S.E.2d

869, 871 (1998) (citations omitted).   Similarly, it is "today

universally recognized" that flight and deceit by an accused may

evince a "'consciousness of guilt'" reflective "'of guilt itself'"

and, therefore, also relevant circumstances to be considered by

the fact finder.   Langhorne v. Commonwealth, 13 Va. App. 97, 102,

409 S.E.2d 476, 480 (1991) (quoting United States v. Ballard, 423

F.2d 127, 133 (5th Cir. 1970)).

     When "a conviction is based on circumstantial evidence, 'all

necessary circumstances proved must be consistent with guilt and

inconsistent with innocence and exclude every reasonable

hypothesis of innocence.'"   Garland v. Commonwealth, 225 Va. 182,

184, 300 S.E.2d 783, 784 (1983) (quoting Inge v. Commonwealth, 217

Va. 360, 366, 228 S.E.2d 563, 567 (1976)).   However, "'[t]he

Commonwealth is not required to prove that there is no possibility

that someone else may have planted, discarded, abandoned, or

placed the [firearm,] drugs or paraphernalia where they were found

near an accused.'"   Pemberton v. Commonwealth, 17 Va. App. 651,

                               - 5 -
655, 440 S.E.2d 420, 422 (1994) (quoting Brown v. Commonwealth, 15

Va. App. 1, 10, 421 S.E.2d 877, 883 (1992)).   Whether a hypothesis

of innocence is reasonable is a question of fact, see Cantrell v.

Commonwealth, 7 Va. App. 269, 290, 373 S.E.2d 328, 339 (1988), and

a finding by the trial court is binding on appeal unless plainly

wrong.   See Martin v. Commonwealth, 4 Va. App. 438, 443, 358

S.E.2d 415, 418 (1987).

     Here, defendant fled into the building immediately after

police observed him outside the premises.    Within six minutes, he

was located alone in the darkened bedroom of an apartment, in bed

and feigning sleep.   At defendant's feet, beneath the box spring,

police found the gun and drugs hidden together.      A search of

defendant's person revealed items related to the narcotics trade,

and he later admitted to prior sales of cocaine. 2    He acknowledged

an awareness that "plenty" of cocaine was present "in [the]

building," including, perhaps, the five bags in issue.     After

first denying contact with the firearm, defendant admitted

handling the weapon moments before arrest.

     Such evidence supports the finding that defendant exercised

dominion and control of the drugs and firearm, with knowledge of

the nature and character of each, both before and after hiding


     2
       We recognize that evidence of intent to distribute cocaine
cannot "'bootstrap' proof . . . that [an accused] actually or
constructively possessed" it. Scruggs v. Commonwealth, 19 Va.
App. 58, 62, 448 S.E.2d 663, 665 (1994). Here, however, such
evidence established defendant's familiarity with the drug and
related trade.

                               - 6 -
himself and the contraband in an attempt to elude and deceive

police, circumstances clearly sufficient to support the

convictions.

     Accordingly, we affirm the trial court.

                                                          Affirmed.




                              - 7 -
Benton, J., dissenting.

     To convict an accused of possession of a prohibited item,

"[t]he Commonwealth must establish that the [accused]

intentionally and consciously possessed it with knowledge of its

nature and character . . . [and] the evidence . . . [must]

exclude all reasonable conclusions inconsistent with that of the

[accused's] guilt."    Burton v. Commonwealth, 215 Va. 711, 713,

213 S.E.2d 757, 758-59 (1975).    "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 [item] and that

it was subject to his dominion and control.'"    Hancock v.

Commonwealth, 21 Va. App. 466, 469, 465 S.E.2d 138, 140 (1995)

(quoting Powers v. Commonwealth, 227 Va. 474, 476, 316 S.E.2d

739, 740 (1984)).    The existence of evidence necessary to prove

elements of the offense "cannot be based upon surmise or

speculation."   Patterson v. Commonwealth, 215 Va. 698, 699, 213

S.E.2d 752, 753 (1975).   "To satisfy the due process

requirements of the . . . Constitution, the prosecution must

bear the burden of proving all elements of the offense beyond a

reasonable doubt."    Stokes v. Warden, 226 Va. 111, 117, 306

S.E.2d 882, 885 (1983).

     Mosley's conviction for constructive possession was based

on circumstantial evidence.

                                 - 8 -
          [W]ell established principles apply to
          testing the sufficiency of circumstantial
          evidence. In LaPrade v. Commonwealth, 191
          Va. 410, 418, 61 S.E.2d 313, 316 (1950),
          [the Supreme Court] summarized those
          principles as follows:

             ". . . [I]f the proof relied upon by the
          Commonwealth is wholly circumstantial, as it
          here is, then to establish guilt beyond a
          reasonable doubt all necessary circumstances
          proved must be consistent with guilt and
          inconsistent with innocence. They must
          overcome the presumption of innocence and
          exclude all reasonable conclusions
          inconsistent with that of guilt. To
          accomplish that, the chain of necessary
          circumstances must be unbroken and the
          evidence as a whole must satisfy the guarded
          judgment that both the corpus delicti and
          the criminal agency of the accused have been
          proved to the exclusion of any other
          rational hypothesis and to a moral
          certainty. . . ."

             But, circumstances of suspicion, 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.

Clodfelter v. Commonwealth, 218 Va. 619, 623, 238 S.E.2d 820,

822 (1977).

     The evidence proved that the police officers saw Mosley

outside an apartment building and sought to capture him because

of an outstanding warrant for his arrest.   The officers pursued

Mosley to an apartment where his friend Tonya Harper resided.

At least five other persons were in the apartment before Mosley




                              - 9 -
entered the apartment.   The evidence proved that Mosley did not

reside at this apartment.

     After the officers entered the apartment and began to

search for Mosley, they encountered two men "walking up the

hallway from the bedroom-bathroom areas to the living room

area."   The officers went past the men and searched the

bedrooms.   Shining a flashlight into the darkened bedrooms, the

officers found Mosley lying on a bed in one of the rooms.     The

officers put handcuffs on Mosley and removed him from the bed.

Searching the room, the officers "lift[ed] the box spring and

mattress off of the ground" and found cocaine and a gun beneath

the bed.    From the time the officers saw Mosley enter the

apartment until they arrested him, no one saw Mosley in

possession of either the cocaine or the gun.

     The evidence also proved that Harper's apartment had been

searched five weeks earlier incident to a search warrant.

Harper was the lessee of the apartment when the police conducted

that earlier search.   During that search, the police found drugs

and paraphernalia consistent with drug use and the drug trade.

When searching the same bedroom, the police found and seized a

large sum of money, cocaine, marijuana, and marijuana smoking

devices.    Mosley was not in the apartment during that search.

     "Suspicious circumstances, including proximity to a

controlled drug, are insufficient to support a conviction."

Behrens v. Commonwealth, 3 Va. App. 131, 135, 348 S.E.2d 430,

                               - 10 -
432 (1986).   In Hairston v. Commonwealth, 5 Va. App. 183, 360

S.E.2d 893 (1987), where the accused "held a child whose

clothing contained a package of cocaine," we reversed a

conviction for possession of cocaine because no evidence proved

the accused "placed the cocaine inside the baby's [clothing] or

. . . knew that cocaine had been placed there."    Id. at 186, 360

S.E.2d at 895.   We applied the well established principle that

"suspicion, no matter how strong, is insufficient to sustain a

criminal conviction."    Id. at 187, 360 S.E.2d at 895 (citing

Stover v. Commonwealth, 222 Va. 618, 624, 283 S.E.2d 194, 197

(1981)).

     The evidence in this case merely proved that Mosley fled

from the police who were seeking to arrest him on an outstanding

warrant.   He entered a friend's apartment and was found in a

dark room lying on a bed under which cocaine and a weapon were

later found concealed between the mattress and box springs.      He

made no statement and committed no act indicating he knew these

items were under the mattress.   Further, no evidence

demonstrated his knowledge of the presence of the cocaine or the

weapon under the bed.    See Scruggs v. Commonwealth, 19 Va. App.

58, 61, 448 S.E.2d 663, 665 (1994).

     These facts do not negate the reasonable hypothesis that

Mosley went to the bedroom solely to elude an arrest on the

outstanding warrant.    Not only did the evidence fail to prove

Mosley knew the gun and cocaine were under the bed, the presence

                               - 11 -
of the gun and cocaine is explained by other circumstances

independent of Mosley.   The apartment of his friend was a place

where narcotics had previously been found by the police.

Although earlier that day Mosley had seen some of those items in

Harper's living room, no evidence proved he knew they had been

put in the bedroom.   The evidence merely allows the inference

that Mosley was a guest of Harper, who lived in the apartment.

See Huvar v. Commonwealth, 212 Va. 667, 668, 187 S.E.2d 177, 178

(1972) (holding that an accused's mere presence in another

person's apartment when drugs are found is not sufficient to

sustain a conviction for possession of those drugs).

     This evidence failed to prove Mosley intentionally or

consciously possessed the items that were found beneath the

mattress and box spring.   Indeed, no evidence proved he knew

they were there.   The totality of these facts is not

inconsistent with his innocence regarding possession of the

drugs and the gun.




                              - 12 -
