                   COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Fitzpatrick, Judges Baker and Bray
Argued at Norfolk, Virginia


HORACE ANDREW JONES, JR.
                                      MEMORANDUM OPINION * BY
v.   Record No. 1398-97-1      CHIEF JUDGE JOHANNA L. FITZPATRICK
                                          MARCH 24, 1998
COMMONWEALTH OF VIRGINIA


               FROM THE CIRCUIT COURT OF YORK COUNTY
                   N. Prentis Smiley, Jr., Judge
          John D. Konstantinou (McKenna & Konstantinou,
          on brief), for appellant.

          Ruth Ann Morken, Assistant Attorney General
          (Richard Cullen, Attorney General, on brief),
          for appellee.



     Horace Andrew Jones, Jr. (appellant) was convicted in a

bench trial of possessing cocaine in violation of Code

§ 18.2-250.   He contends the evidence was insufficient to support

the conviction.   We disagree and affirm.

                                I.

     At 9:10 p.m. on August 30, 1996, Ranger Holliday of the

Newport News Parks Department approached a vehicle backed in at a

watershed property gate off Richneck Road.   Jones, seated in the

driver's seat, was the sole occupant of the vehicle.   According

to Holliday, as he approached, appellant "initially tried to get

out of the vehicle and come around to me."   When Holliday asked

appellant what he was doing there, he replied that he just pulled

     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
in to sit for a bit.    When asked for his driver's license, Jones

produced an identification card issued by the Department of Motor

Vehicles.   Holliday arrested Jones because he was wanted on an

outstanding warrant.

     After the arrest, Holliday found a registration card in the

glove box indicating that the vehicle was not owned by Jones.

However Jones stated several times that he had just purchased the

car from the registered owner a week earlier, and the paperwork

was not yet complete.   On the floorboard of the driver's side, in

the area where the driver's foot would be, Holliday found a

hollow antenna section and a cigarette lighter.   The antenna

section was readily visible from outside the vehicle on the

passenger side and appeared to have a "black-gray type of

residue" covering it.   Antenna sections are used as "stems" to

smoke crack cocaine, and the residue proved to be cocaine.
     At trial, appellant testified that the car belonged to a

friend and that he had been driving it for 30 to 45 minutes

because he had gotten lost in the area.   Appellant denied telling

Holliday that he had recently purchased the car and that he had

been driving it for a week.   Appellant offered no explanation for

his suspicious behavior in exiting the car before the ranger

approached or for his failure to tell Holliday that he was lost

when he pulled in to sit for a bit.

     In finding that appellant constructively possessed the

antenna section containing the cocaine, the trial court rejected




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Jones' argument that he was unaware of the presence of the

antenna section. The court stated:
          [T]his matter . . . boils down to a matter of
          credibility between the witnesses and who the
          Court finds . . . more credible. The
          Defendant has contradicted almost everything
          that the park ranger has said except that he
          was there. I find that the ranger['s] . . .
          testimony is, in fact, believable. The Court
          believes that [the Defendant] said all of
          those things to the officer.


                                II.
     When considering the sufficiency of the evidence on appeal

in a criminal case, we view the evidence in the light most

favorable to the Commonwealth, granting to it all reasonable

inferences fairly deducible therefrom.   See Higginbotham v.

Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975).    In

so doing, we must discard the evidence of the accused in conflict

with that of the Commonwealth and regard as true all the credible

evidence favorable to the Commonwealth and all fair inferences.

See Cirios v. Commonwealth, 7 Va. App. 292, 295, 373 S.E.2d 164,

165 (1988).   The credibility of witnesses, the weight accorded to

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 trial court's judgment will not be set aside unless the

judgment is plainly wrong or without evidence to support it.     See

Josephs v. Commonwealth, 10 Va. App. 87, 99, 390 S.E.2d 491, 497

(1990) (en banc).
          [P]ossession of a controlled substance may be



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

S.E.2d 844, 845 (1986)).   See Walton v. Commonwealth, No. 971369,

___ Va. ___, ___ S.E.2d ___ (Feb. 27, 1998).
     Although mere proximity to drugs is insufficient to

establish possession, it is a circumstance which may be probative

in determining whether an accused possessed such drugs.    See Lane

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

Brown v. Commonwealth, 15 Va. App. 1, 9, 421 S.E.2d 877, 882

(1992) (en banc).   Ownership or occupancy of the vehicle in which

drugs are found is likewise a circumstance probative of

possession.   See Drew v. Commonwealth, 230 Va. 471, 473, 338

S.E.2d 844, 845 (1986) (citing Code § 18.2-250).   Thus, in

resolving this issue, we must consider "the totality of the

circumstances disclosed by the evidence."   Womack v.

Commonwealth, 220 Va. 5, 8, 255 S.E.2d 351, 353 (1979).

     Here, Jones was the sole occupant of the vehicle, and he was

found sitting in the driver's seat.   When the officer approached,

appellant immediately exited the car, and the trial court could

reasonably infer that he was attempting to distract Holliday from




                                 4
looking inside where the drugs were located.   The antenna

section, with visible residue, together with the cigarette

lighter, were found in plain view on the driver's floorboard,

near where Jones' left foot rested.   Finally, Jones' inconsistent

statements about his ownership of the vehicle, the time he had

control of the car and its contents, and his reason for being

stopped at the watershed entrance were acts upon which the trial

court could reject his denial of knowledge or ownership of the

antenna.   While appellant made no specific statement regarding

the use of the device, when viewed as a whole, his acts and

conduct support the trial court's finding that he was aware of

the presence and character of the cocaine and that he was guilty

of possessing it.

                                                        Affirmed.




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