                                  COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Fitzpatrick, Judges Elder and Kelsey
Argued at Richmond, Virginia


GEORGE WASHINGTON RUFFIN
                                                          MEMORANDUM OPINION∗ BY
v.     Record No. 0081-04-2                           CHIEF JUDGE JOHANNA L. FITZPATRICK
                                                                MARCH 22, 2005
COMMONWEALTH OF VIRGINIA


                      FROM THE CIRCUIT COURT OF SUSSEX COUNTY
                                Samuel E. Campbell, Judge

                 Connie Louise Edwards (Connie Louise Edwards, P.C., on brief),
                 for appellant.

                 Deana A. Malek, Assistant Attorney General (Jerry W. Kilgore,
                 Attorney General, on brief), for appellee.


       George Washington Ruffin (appellant) was indicted for possession with intent to distribute

cocaine in violation of Code § 18.2-248, and convicted in a bench trial of the lesser-included offense

of possession of cocaine in violation of Code § 18.2-250. On appeal, he contends the evidence was

insufficient to convict him. We affirm the trial court.

                                         I. BACKGROUND

       Under familiar principles of appellate review, we examine the evidence in the light most

favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible

therefrom. See Juares v. Commonwealth, 26 Va. App. 154, 156, 493 S.E.2d 677, 678 (1997).

       So viewed, the evidence established that at approximately 3:00 p.m. on February 28,

2003, Sussex County Deputy Sheriffs Robert E. Williams (Williams) and Greg Russell (Russell)

went to Hicks’ Trailer Park in Sussex County to execute a search warrant on appellant’s trailer.

       ∗
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
They had been investigating the residence for possible drug use based on information obtained

from a confidential informant and from observation. As they approached the entrance to the

trailer, they heard appellant, who was inside the trailer, announce to the other people there: “Mo

Williams is outside, Mo Williams is outside!” referring to Officer Williams. Williams testified

that he recognized appellant’s voice because he had known him for over twenty-five years. The

police could hear people inside the trailer scurrying from the living room near the entrance,

towards the rear end of the trailer.

       After they entered the trailer, the officers saw appellant sitting at a card table with two

other people. While Russell detained appellant, Williams moved to the rear of the trailer and

saw codefendant Tyrone Smith in the hallway. Williams heard a toilet flush in the rear of the

trailer, and had to physically remove Smith in order to proceed to the rear of the trailer to

continue the search. When he entered the bathroom, Williams saw that the toilet had recently

been flushed and was refilling with water. He found a plastic baggie containing crack cocaine in

the toilet, small rocks of crack cocaine on the floor, and a plate with cocaine residue on the floor

next to the toilet. Williams then entered an adjacent room where he saw codefendant Jacobie

Smith lying face down on the bed. Williams found a cutting instrument, packaging material, and

some currency on a coffee table nearby, and a smoking device that was burned on both ends in

the adjacent hallway.

       Appellant, Jacobie Smith, and Tyrone Smith were arrested and charged with possession

with intent to distribute cocaine under Code § 18.2-248, and convicted of possession of cocaine

in violation of Code 18.2-250.




                                                -2-
                                             II. ANALYSIS

       Appellant’s sole contention on appeal is that the evidence was insufficient to convict him.

He argues that the Commonwealth failed to exclude every reasonable hypothesis of innocence.

We disagree.

       “When the sufficiency of the evidence is challenged on appeal, we determine whether the

evidence, viewed in the light most favorable to the prevailing party, the Commonwealth, and the

reasonable inferences fairly deducible from that evidence support each and every element of the

charged offense.” Haskins v. Commonwealth, 31 Va. App. 145, 149-50, 521 S.E.2d 777, 779

(1999). “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 that may be drawn therefrom.” Watkins v. Commonwealth, 26 Va. App. 335,

348, 494 S.E.2d 859, 866 (1998). We must affirm the conviction “unless it is plainly wrong or

without evidence to support it.” Shackleford v. Commonwealth, 262 Va. 196, 209, 547 S.E.2d

899, 906 (2001).

       To convict for possession of cocaine under Code § 18.2-250, the Commonwealth must

prove that the defendant had either actual or constructive possession of the contraband. See

Archer v. Commonwealth, 225 Va. 416, 418, 303 S.E.2d 863, 863 (1983).

               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.”

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)). “The accused’s proximity to

an illicit drug and occupancy of the premises where the drug is found, while not sufficient to

establish dominion and control of the substance, are factors that may be considered in deciding
                                               -3-
whether an accused possessed the drug. To resolve this issue, the Court must consider the

totality of the circumstances established by the evidence.” Williams v. Commonwealth, 42

Va. App. 723, 735-36, 594 S.E.2d 305, 311 (2004) (internal citations omitted). “We have held

that possession of a drug need not be exclusive, but instead may be joint.” Archer, 225 Va. at

418, 303 S.E.2d at 863.

       “Proof of constructive possession necessarily rests on circumstantial evidence; thus, all

necessary circumstances proved must be consistent with guilt and inconsistent with innocence

and exclude every reasonable hypothesis of innocence.” Burchette v. Commonwealth, 15

Va. App. 432, 434, 425 S.E.2d 81, 83 (1992) (citations omitted). “The Commonwealth need

only exclude reasonable hypotheses of innocence that flow from the evidence, not those that

spring from the imagination of the defendant.” Hamilton v. Commonwealth, 16 Va. App. 751,

755, 433 S.E.2d 27, 29 (1993). “The statement that circumstantial evidence must exclude every

reasonable theory of innocence is simply another way of stating that the Commonwealth has the

burden of proof beyond a reasonable doubt.” Commonwealth v. Hudson, 265 Va. 505, 513, 578

S.E.2d 781, 785 (2003). “Whether a hypothesis of innocence is reasonable is a question of fact,

and a finding by the [fact finder] is binding unless plainly wrong.” Glasco v. Commonwealth, 26

Va. App. 763, 774, 497 S.E.2d 150, 155 (1998) (citations omitted).

       In making its ruling, the trial court stated:

               You have a situation where there was a drug raid on a small trailer
               in the County of Sussex, by a known officer for many years in this
               county who appears, he hears his name being announced. All of a
               sudden there’s a lot of scuffling going on and you hear the
               commode inside and the commode is being flushed. There’s
               residue found throughout the bathroom, which is a favorite place to
               dispose of drugs. And there’s noise in the room. That [sic] there’s
               drug activity, bagging and cutting devices and different things, and
               it all fits in with the situation beyond a reasonable doubt that
               individuals in that trailer were in there using drugs. Officer
               Williams, who’s well known, is announced. The scuffle starts to

                                                 -4-
               get rid of the evidence. And the Court finds them guilty beyond a
               reasonable doubt.1

(Emphasis added).

       The trial court’s conclusion that appellant constructively possessed the cocaine was not

plainly wrong or without evidence to support it. The appellant resided in the trailer where the

contraband was found, and was inside the trailer when the officers executed the search warrant.

When the officers arrived to execute the warrant, they heard appellant announce the presence of

the police: “Mo Williams is outside, Mo Williams is outside!” This was immediately followed

by an attempt to destroy the drugs. The trial court reasonably inferred that this was notice to the

others to dispose of the evidence before the officers entered the trailer. Appellant’s warning that

the police were approaching, his proximity to the drugs in his residence, the other suspects’

attempt to destroy the evidence, the presence of cocaine on the bathroom floor and in the toilet,

and the presence of cocaine paraphernalia in the rear bedroom and hallway, all support the trial

court’s finding that appellant constructively possessed the cocaine. We therefore hold that

sufficient evidence supports the appellant’s conviction.

       Accordingly, we affirm.

                                                                                          Affirmed.




       1
         While not made a part of the appendix, the trial court reviewed several photographs
depicting the size of the trailer, its contents, and the drugs recovered therefrom.
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