                    COURT OF APPEALS OF VIRGINIA


Present: Judges Coleman, Annunziata and Bumgardner
Argued at Norfolk, Virginia


STEPHEN EUGENE CLARK, S/K/A
 STEPHEN E. CLARK, JR.
                                         MEMORANDUM OPINION * BY
v.   Record No. 0918-98-1              JUDGE ROSEMARIE ANNUNZIATA
                                             APRIL 27, 1999
COMMONWEALTH OF VIRGINIA


         FROM THE CIRCUIT COURT OF THE CITY OF WILLIAMSBURG
                      AND COUNTY OF JAMES CITY
                  Samuel Taylor Powell, III, Judge

           C. Thomas Turbeville (D. R. Dansby, Ltd., on
           brief), for appellant.

           Donald E. Jeffrey, III, Assistant Attorney
           General (Mark L. Earley, Attorney General,
           on brief), for appellee.


     Stephen Eugene Clark ("defendant") appeals his conviction by

bench trial of possession of cocaine in violation of Code

§ 18.2-250 on the ground that the evidence was insufficient to

support it.   Finding no error, we affirm.

     The evidence, viewed in the light most favorable to the

Commonwealth, see Jenkins v. Commonwealth, 255 Va. 516, 521, 499

S.E.2d 263, 265 (1998), establishes that the defendant's vehicle

was stopped by Officer Jake Rice of the James City County Police

Department on September 23, 1997 at approximately 11:54 p.m.



     *
      Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
Officer Rice conducted the stop after observing the defendant’s

vehicle “sitting” in a road with its headlights on and after

determining that the defendant, the registered owner of the

vehicle, had a suspended operator’s license.   The defendant was

driving the vehicle at the time of the stop.

     When asked to produce his operator’s license and car

registration, the defendant began searching for the items on the

back seat and floorboard of the vehicle, which held stacks of

papers bearing his name and a variety of bags.   When the officer

asked the defendant whether he knew his license was suspended, the

defendant asserted that his license was not suspended and that it

had been reinstated.   As Officer Rice requested the defendant’s

driving record from the dispatch center, he noticed the defendant

“digging in towards the back of the car” and floorboard section

through the bags and papers in that section of the car.   Officer

Rice asked the defendant whether there were any drugs in his car.

The defendant replied, “no.”   The officer asked the defendant for

permission to search the vehicle.   The defendant gave consent to

the search and exited the vehicle, remaining behind the car while

the search was conducted.

     Officer Rice found a twelve-ounce Dr. Pepper can under a

console between the driver’s and passenger’s side of the vehicle

and a twelve-ounce Malt Liquor beer can under the passenger seat.

Both cans had several "holes punched in the side” and contained an

odorless, burnt residue.    Neither can was in plain view when

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found.   Based on his training and experience, Officer Rice

testified that such cans are "known to be used for smoking crack

cocaine.”    Ultimately, the residue tested positive for cocaine.

     Upon discovery of the cans, Officer Rice arrested the

defendant for possession of cocaine and driving with a suspended

license.    Officer Rice told the defendant of the discovery of the

cans and advised him of the charges underlying the arrest.        After

the officer advised the defendant of his Miranda rights, the

defendant admitted knowledge of the cans’ presence in the car,

explaining that someone else had put them there.       The defendant

also advised Officer Rice that he did not smoke cocaine.

     In his testimony, Officer Rice conceded that, because the

cocaine residue was odorless, someone who did not use cocaine

would not likely be able to tell the cans contained cocaine.       He

noted that the cans would have some type of odor if they had been

used to smoke marijuana.

     On appeal, the defendant contends the evidence is

insufficient to support his conviction because the Commonwealth

failed to prove that he was aware of the character of the residue

on the cans discovered in his car.      We disagree.

     “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 the judgment is plainly

wrong or without evidence to support it.”     Martin v. Commonwealth,

4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987).       When the

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sufficiency of evidence is challenged on appeal, the appellate

court considers the evidence in the light most favorable to the

Commonwealth and grants it all reasonable inferences deducible

from that evidence.   See Parks v. Commonwealth, 221 Va. 492, 498,

270 S.E.2d 755, 759 (1980), cert. denied, 450 U.S. 1029 (1981).

The credibility of the witnesses and the weight accorded their

testimony are matters solely within the province of the trial

court.   See Bridgeman v. Commonwealth, 3 Va. App. 523, 528, 351

S.E.2d 598, 601 (1986).   An appellate court does not substitute

its own judgment for that of the trial court.   See Collins v.

Commonwealth, 13 Va. App. 177, 178, 409 S.E.2d 175, 175 (1991).

     To support a conviction based upon constructive possession of

drugs, “‘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.’”   Langston v. Commonwealth,

28 Va. App. 276, 285, 504 S.E.2d 380, 384 (1998) (quoting Drew v.

Commonwealth, 230 Va. 471, 473, 338 S.E.2d 844, 845 (1986)).

“Although mere proximity to the drugs is insufficient to establish

possession, and occupancy of [a] vehicle does not give rise to a

presumption of possession, both are factors which may be

considered in determining whether a defendant possessed drugs.”

Josephs v. Commonwealth, 10 Va. App. 87, 100, 390 S.E.2d 491, 498

(1990) (en banc).

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     Here, the evidence establishes that Officer Rice stopped the

defendant in a car registered in his name.   At the time of the

stop, the defendant was the sole occupant of his vehicle, which

contained a multitude of papers bearing his name.    After observing

the defendant “digging through” the bags and papers in the rear

seat, ostensibly in response to the officer’s request for his

driver’s license and registration, Officer Rice asked the

defendant to step out of the car and, upon searching the car,

found two cans containing cocaine residue hidden from plain view

in separate places within the passenger compartment; one was under

the front passenger seat and the other was in the console between

the driver and front passenger seats of the vehicle.   These cans

were noticeably modified for the purpose of using them as a

smoking device, and the defendant admitted that he knew of their

presence.   Based on the defendant’s knowledge of the cans’

presence, the trier of fact was entitled to infer that he was

aware of the character of the cocaine residue.   See id. at 101,

390 S.E.2d at 498-99 (“Possession of a controlled drug gives rise

to an inference of the defendant’s knowledge of its character.”).

Notwithstanding this evidence, the defendant contends the

Commonwealth failed to rebut the reasonable hypothesis of

innocence that someone else brought the cans into his car without

his knowledge that they contained cocaine residue.   The defendant

bases this claim on his statements that he did not smoke cocaine



                               - 5 -
and that “someone else” placed the cans in his car, as well as

Officer Rice’s testimony that a “plain person” might not realize

that the cans contained cocaine residue.

     When the Commonwealth proceeds on the basis of circumstantial

evidence, it “need only exclude reasonable hypotheses of innocence

that flow from the evidence, not those that spring from the

imagination of the defendant.”    Patrick v. Commonwealth, 27 Va.

App. 655, 662, 500 S.E.2d 839, 843 (1998).   The reasonableness of

the hypothesis is a question of fact.    See Cantrell v.

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

Absent credible evidence supporting such a hypothesis, “‘[t]he

Commonwealth is not required to prove that there is no possibility

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

the drugs and paraphernalia in the [vehicle].’”   Langston, 28 Va.

App. at 286, 504 S.E.2d at 384 (citation omitted).

     Here, no credible evidence supports the defendant’s

hypothesis that someone else placed the cans inside his car.    The

trial court was not required to accept in toto the defendant’s

statements and was entitled to rely on them in whole or in part or

to reject them completely.   See Rollston v. Commonwealth, 11 Va.

App. 535, 547, 399 S.E.2d 823, 830 (1991).   Thus, when viewed in

the light most favorable to the Commonwealth, the defendant’s

statement that “someone else” placed the cans in his car must be

viewed as an attempt to conceal his guilt.   See id. (finding that



                                 - 6 -
a defendant’s exculpatory statement, when viewed in the light most

favorable to the Commonwealth, “must be interpreted . . . as mere

fabrications to conceal guilt . . .”).    Finally, given the

defendant’s representation to police that he had a valid

operator’s license when his driving record showed that his license

had been suspended, the trial court was entitled to infer that the

defendant was lying at the time of the stop to conceal his guilt

with respect to the instant offense.   See Pearson v. Commonwealth,

221 Va. 936, 946, 275 S.E.2d 893, 900 (1981); Burgess v.

Commonwealth, 14 Va. App. 1018, 1025, 421 S.E.2d 664, 668 (1992)

(“[W]here a defendant gives a false account of circumstances

surrounding a crime, the trial court is entitled to infer that the

defendant lied to conceal his guilt.”).

     In sum, based on the defendant’s knowledge of the cans’

presence in his car, the defendant’s suspicious movements inside

his car while police attempted to obtain his driving record, the

discovery of the cans inside the car and hidden from plain view,

the defendant’s sole ownership and occupancy of the vehicle and

its contents, the defendant’s close proximity to the cans, and the

inferences the trial court was entitled to draw from the

defendant’s statements that “someone else” placed the cans in his

car and that he didn’t smoke cocaine, we find that the evidence

was sufficient to prove beyond a reasonable doubt that the

defendant was aware of the character of the residue found on the



                              - 7 -
cans.    See Iglesias v. Commonwealth, 7 Va. App. 93, 110, 372

S.E.2d 170, 179-80 (1988) (finding sufficient evidence of

possession based on the defendant’s sole occupancy of a rental

car, admission that everything in the car belonged to him,

contradictory statements concerning a package in the car that

contained drugs, and ultimate admission that the package was given

to him to deliver to an unknown person notwithstanding his further

statement that he did not know what the package contained).

        Accordingly, the conviction is affirmed.

                                                          Affirmed.




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