A Rehearing En Banc was granted in this case on October 16, 1995.

                    COURT OF APPEALS OF VIRGINIA

Present:  Chief Judge Moon, Judge Annunziata and
          Senior Judge Hodges
Argued at Richmond, Virginia


STANLEY REYNOLD BRATHWAITE
                                       MEMORANDUM OPINION * BY
v.   Record No. 0790-94-2            CHIEF JUDGE NORMAN K. MOON
                                           AUGUST 15, 1995
COMMONWEALTH OF VIRGINIA


           FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                      James B. Wilkinson, Judge

           Felipita Athanas for appellant.

           Linwood T. Wells, Jr., Assistant Attorney
           General (James S. Gilmore, III, Attorney
           General, on brief), for appellee.



     Stanley Reynold Brathwaite appeals his bench trial

convictions of possession of cocaine and possession of a firearm

while unlawfully in possession of cocaine.   Brathwaite argues

that the Commonwealth's evidence was insufficient to convict him.

 We disagree and affirm Brathwaite's convictions.

     The Commonwealth's evidence established that a Richmond

police officer executed a search warrant on a motel room occupied

by Brathwaite, two females, and an infant child.    The motel room

was not registered to Brathwaite.   Upon the officer's entrance,

Brathwaite was lying on the closest of two beds to the door on

the left side of the room.   The bed was half made, and Brathwaite

appeared to be lying on top of the bed covers, with his head
     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
propped up on his hand and his elbow or arm touching two stacked

pillows.    A search of the room uncovered .12 grams of cocaine in

one part of the room.    A .357 revolver and .16 grams of cocaine

packaged in tissue paper were found under one of the pillows on

the bed where Brathwaite was lying.

     At Brathwaite's trial the officer who searched the motel

room testified that the .357 revolver and .16 grams of cocaine

were found about twelve inches from Brathwaite's hand.   The

officer testified that, as he entered the motel room, Brathwaite

was lying on the bed, and "[t]he pillow was lying on his arm like

sitting up on his arm.   His head was off the pillow looking over

at us."
     Brathwaite made no statements concerning the cocaine or

revolver.   Brathwaite made no furtive motions or gestures away

from the cocaine and did not attempt to prevent the officers from

searching the room.   The record does not reveal to whom the room

was registered, what time of day the search was made, how

Brathwaite was dressed, how long he had been in the room, or

whether there were clothes or other items belonging to him

located in the room.
     [P]ossession 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


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

S.E.2d 844, 845 (1986)) (emphasis added).   This Court is guided

by the principles concerning constructive possession of

controlled substances when determining whether a defendant

constructively possessed a firearm.    See Blake v. Commonwealth,

15 Va. App. 706, 708, 427 S.E.2d 219, 220 (1993).

     While mere proximity to contraband is insufficient to

establish possession, and an accused's occupancy of the premises

does not give rise to a presumption of possession, these factors

are circumstances to be considered by the fact finder with other

evidence in determining whether a defendant constructively

possessed drugs.   See Lane v. Commonwealth, 223 Va. 713, 292

S.E.2d 358 (1982); Hambury v. Commonwealth, 3 Va. App. 435, 350

S.E.2d 524 (1986); see also Fogg v. Commonwealth, 216 Va. 394,

395, 219 S.E.2d 672, 673 (1975).

     We hold that the proximity of Brathwaite to the drugs and

revolver coupled with his occupancy of the room was a sufficient

basis for inferring his constructive possession of the cocaine.

The evidence tended to prove that Brathwaite's arm was within

inches of the cocaine and large firearm, a .357 pistol,

underneath the pillow where they were discovered by the officer.

The trial court, therefore, reasonably concluded that Brathwaite

was aware of the presence, nature and character of the cocaine.

     Furthermore, we decline to subscribe to Brathwaite's

argument that his case should be reversed based on the case of
Fogg.   To the contrary, his case is factually dissimilar and does

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not merit reversal.   In Fogg, the contraband was found away from

the defendant in a bag on a window sill.   In this case, cocaine

and a very large revolver, while not in plain sight, were found

only inches from Brathwaite's arm underneath a pillow on a bed on

top of which only he was lying.   Accordingly, we affirm

Brathwaite's convictions.

                                                   Affirmed.




                               - 4 -
Annunziata, J., dissenting.


     When the evidence against an accused is wholly

circumstantial, as here, "[a]ll necessary circumstances proved

must be consistent with guilt and inconsistent with innocence and

must exclude every reasonable hypothesis of innocence."     Boothe

v. Commonwealth, 4 Va. App. 484, 492, 358 S.E.2d 740, 745 (1987).

     The Commonwealth's circumstantial evidence fails to exclude

the hypothesis that Brathwaite entered the motel room only a

short time before the officer, laid down on the bed, which

unknown to him had contraband concealed under the pillow.
     Accordingly, I respectfully dissent from the majority

opinion and would reverse and dismiss the convictions.




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