                  COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Fitzpatrick, Judges Bray and Annunziata
Argued at Alexandria, Virginia


COREY ANTON JOHNSON
                                      MEMORANDUM OPINION * BY
v.   Record No. 1487-99-3           JUDGE ROSEMARIE ANNUNZIATA
                                           JULY 11, 2000
COMMONWEALTH OF VIRGINIA


         FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG
                   Mosby G. Perrow, III, Judge

          Joseph A. Sanzone (Sanzone & Baker, P.C., on
          brief), for appellant.

          Thomas M. McKenna, Assistant Attorney
          General (Mark L. Earley, Attorney General,
          on brief), for appellee.


     Corey Anton Johnson was indicted for possession of cocaine

with the intent to distribute in violation of Code § 18.2-248.

In a bench trial, the court found him guilty as charged and

sentenced him to 10 years in prison and imposed a $2,500 fine.

Five years of the sentence and the entire fine were suspended.

Johnson appeals his conviction, contending the evidence was not

sufficient to convict him.   For the reasons that follow, we

affirm the conviction.




     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
                               FACTS

     On appeal, the evidence is reviewed in the light most

favorable to the Commonwealth, together with all reasonable

inferences which may fairly be drawn from it.    See Archer v.

Commonwealth, 26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997).

Johnson occupied a house that was the subject of a search by the

Lynchburg Police Department on September 29, 1998.   When

Investigator J.L. Hise and a group of his fellow officers

arrived, they found Johnson in a room he rented for $200 a month

on the upper floor of the house; he was clad only in a pair of

shorts, and three other men were present with him.   The four men

were individually searched and brought downstairs.   According to

Hise, Johnson appeared "extremely anxious" to retrieve a pair of

shoes from his room, asking ten or twelve times to be allowed to

retrieve the shoes.   The officers searched the upstairs room and

found several pairs of shoes there, among which was a pair of

Nike tennis shoes in which the officers found a plastic bag

containing off-white chunky substances weighing over six grams,

later determined to be cocaine.   The street value of cocaine was

between $100 and $125 per gram.   Hise presented the shoes to

Johnson, who acknowledged they were his.

     Johnson denied knowing about the cocaine found in the

shoes, and denied being a cocaine user.    He stated that he was

unemployed and that the $150 found in his pocket pursuant to a


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consensual search was money he had saved.    When asked about the

$75 found scattered on the floor of the room, he stated it was

from the gambling the men were engaged in before the police

arrived.   The police also found a working pager on Johnson's

person.    The three men found in Johnson's room denied putting

the cocaine in Johnson's shoe.

                        CONSTRUCTIVE POSSESSION

             Possession may be actual or constructive.
             Constructive possession may be established
             by 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
             the character of the substance and that it
             was subject to his dominion and control.

Logan v. Commonwealth, 19 Va. App. 437, 444, 452 S.E.2d 364,

368-69 (1994) (en banc) (citations omitted).      Constructive

possession may be established by circumstantial evidence

provided such evidence excludes every reasonable hypothesis of

innocence that flows from the evidence.     See Tucker v.

Commonwealth, 18 Va. App. 141, 143, 442 S.E.2d 419, 420 (1994);

Hamilton v. Commonwealth, 16 Va. App. 751, 755, 433 S.E.2d 27,

29 (1993).    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).

             Ownership or occupancy of . . . premises
             where illicit drugs are found is a
             circumstance that may be considered together
             with other evidence tending to prove that
             the owner or occupant exercised dominion and

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            control over the items . . . on the premises
            in order to prove that the owner or occupant
            constructively possessed the contraband
            . . . . Furthermore, proof that a person is
            in close proximity to contraband is a
            relevant fact that, depending on the
            circumstances, may tend to show that, as an
            owner or occupant of property . . . the
            person necessarily knows of the presence,
            nature, and character of a substance that is
            found there.

Burchette v. Commonwealth, 15 Va. App. 432, 435, 425 S.E.2d 81,

83 (1992) (citations omitted).

     Johnson was found in a room that he rented, in which

illegal drugs were found in a pair of his shoes.   Johnson

acknowledged the shoes as his and was anxious to retrieve a pair

of shoes before leaving the room.    The other individuals found

in the room when the police arrived denied putting the cocaine

in the shoes, and the trial court accepted their testimony as

credible.   "The credibility of the witnesses and the weight

accorded the evidence are matters solely for the fact finder who

has the opportunity to see and hear that evidence as it is

presented."    Sandoval v. Commonwealth, 20 Va. App. 133, 138, 455

S.E.2d 730, 732 (1995).   Furthermore, the trier of fact need not

accept an accused's statements and may credit them in whole or

in part, or not at all.    See Rollston v. Commonwealth, 11

Va. App. 535, 547, 399 S.E.2d 823, 830 (1991).   An accused's

claims of innocence may be considered mere fabrications to

conceal guilt.    See id. at 548, 399 S.E.2d at 830.   Thus, the


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trial court could conclude beyond a reasonable doubt, based on

this circumstantial evidence, that Johnson was aware of the

presence and nature of the drugs and that he possessed them.

                         INTENT TO DISTRIBUTE

        Proof of the intent to distribute drugs may also be

established by circumstantial evidence, including the quantity

of drugs and cash possessed and whether the accused is a drug

user.    Large sums of money, particularly in small denominations,

and the absence of drug paraphernalia supporting personal drug

use, have been commonly accepted as factors indicating intent to

distribute.     See Welshman v. Commonwealth, 28 Va. App. 20, 37,

502 S.E.2d 122, 130 (1998) (en banc).     Pagers have also been

considered a factor in establishing an accused's involvement in

the drug trade.     See White v. Commonwealth, 25 Va. App. 662,

668, 492 S.E.2d 451, 454 (1997) (en banc).

        Johnson claimed he was not a drug user, yet was found in

possession of over six grams of cocaine.    He had a pager and

$150, although he was unemployed.    We find the evidence was

sufficient to prove beyond a reasonable doubt that Johnson was

guilty of possessing cocaine with the intent to distribute, and

affirm his conviction.

                                                          Affirmed.




                                 - 5 -
Fitzpatrick, C.J., concurring, in part, and dissenting, in part.

     I concur with the majority that the evidence presented

supports a finding of guilt for possession of cocaine.    However,

I do not find the evidence sufficient to prove the intent to

distribute cocaine.

     The only evidence of intent to distribute was the

possession of a pager, approximately $150 in cash found on the

appellant, not a "large amount of cash," and appellant's

testimony that he did not use drugs.   While it is true that

intent to distribute may be shown by circumstantial evidence, it

is unreasonable to use as the sole basis ordinary items used by

people who do not distribute drugs.

     This Court has addressed this specific issue in Burchette

v. Commonwealth, 15 Va. App. 432, 425 S.E.2d 81 (1992).

               Initially, we address the issue whether
          the nature of the items in the vehicle, the
          handgun and cellular telephone, and the fact
          that these items frequently are used by drug
          dealers proves that the marijuana belonged
          to Burchette. The argument advanced in
          support of this hypothesis is that because
          an officer who stops a suspected drug dealer
          can conduct a limited "pat-down" search for
          weapons and because police officers know
          that drug dealers frequently carry handguns,
          . . . the fact that a person owns a handgun
          found in his vehicle is evidence that drugs
          found in his vehicle belong to him also. It
          does not follow, however, that because
          police officers know that drug dealers
          frequently own guns, cellular telephones, or
          beepers, Burchette, who owned a handgun and
          cellular telephone, was a drug dealer. . . .
          In essence, the Commonwealth asks us to hold

                              - 6 -
           that since most drug dealers carry handguns
           [or pagers], most people who carry handguns
           [or pagers] are drug dealers. We reject the
           hypothesis.

Id. at 437, 425 S.E.2d at 84-85 (citations omitted) (emphasis

added).   Accordingly, I dissent in part.




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