UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                      No. 98-4521

ENOCH WESLEY CLARK,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Norfolk.
J. Calvitt Clarke, Jr., Senior District Judge.
(CR-98-15)

Submitted: October 30, 1998

Decided: November 17, 1998

Before ERVIN, LUTTIG, and MICHAEL, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Kenneth R. Melvin, MARCUS, SANTORO, KOZAK & MELVIN,
P.C., Portsmouth, Virginia, for Appellant. Helen F. Fahey, United
States Attorney, James A. Metcalfe, Assistant United States Attorney,
Darryl J. Mitchell, Special Assistant United States Attorney, Kenneth
L. Poortvliet, Third Year Law Student, Norfolk, Virginia, for Appel-
lee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

A jury convicted Enoch Wesley Clark, Jr., of possession with
intent to distribute cocaine base in violation of 21 U.S.C. § 841(a)(1)
(1994). On appeal, Clark contends there is insufficient evidence to
show that he exercised dominion and control over the cocaine base.
Finding no reversible error, we affirm.

We review challenges to the sufficiency of the evidence by viewing
the evidence at trial in the light most favorable to the prosecution,
including all reasonable inferences that can be drawn from the evi-
dence. See Glasser v. United States, 315 U.S. 60, 82 (1942). In
November 1996, police officers executed a search warrant at the
home of William Norman. In the home, police found Clark, Norman,
and two other individuals. Detective Grover observed Clark leaving
a hallway bathroom and going towards a bedroom directly across the
hall. Clark, who was dressed in a bathrobe, was placed on the floor
by police in front of the bedroom and handcuffed. There was no one
in the bedroom. In the bathroom, Grover found an eye glass case con-
taining $393 in soaking wet currency, later found to belong to Clark.

Clark was taken to another section of the house. He asked if he
could put his pants on. He told Grover that his pants were in his room
and pointed with his head towards the bedroom he was just seen try-
ing to enter. Grover went to the bedroom, found a pair of men's pants,
and gave them to Clark, who put them on. Grover searched the bed-
room and found three baggies containing cocaine on top of a dresser.
Also on the dresser was a plate with a razor, a film canister containing
cocaine, a cellular phone, a pager, a birthday card written to Clark,
and information from the Division of Motor Vehicles with Clark's
name on it. A digital scale was recovered from the top drawer. Near
the dresser, there were photographs of Clark with other people.

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Also found in the bedroom were an I.D. card, a prescription bottle,
and a box from Rite Aid--all with Clark's name on them. In addition,
police recovered two more pagers and two handguns. The handguns
were located under the mattress. No personal items found in the bed-
room belonged to any person other than Clark.

Clark testified that he was not living at the house at the time of the
search, although he had stayed there in the past. He also referred to
the bedroom as a den shared by visitors and members of the house-
hold.

To prove possession with intent to distribute, the Government must
prove beyond a reasonable doubt that Clark: (1) knowingly; (2) pos-
sessed the controlled substance; and (3) with the intent to distribute
it. See United States v. Rusher, 966 F.2d 868, 878 (4th Cir. 1992).
Clark asserts on appeal that the evidence was insufficient to establish
the second element, that he possessed the controlled substance.

We affirm a criminal conviction challenged on sufficiency grounds
if any rational factfinder, viewing the evidence in the light most
favorable to the Government, could have found every essential ele-
ment of the offense beyond a reasonable doubt. See United States v.
Hudgins, 120 F.3d 483, 486 (4th Cir. 1997) (emphasis added). As for
the possession element of § 841(a), "[a]ctual or sole possession of a
controlled substance is not required; constructive possession is suffi-
cient, which the government can prove by showing that the defendant
exercised, or had the power to exercise, dominion and control over
the item." Rusher, 966 F.2d at 878. Constructive possession may be
established by either circumstantial or direct evidence. See United
States v. Laughman, 618 F.2d 1067, 1077 (4th Cir. 1980). Thus,
Clark's challenge must fail if it can be shown that any reasonable
factfinder could find beyond a reasonable doubt that he had the power
to exercise dominion and control over the cocaine base.

A defendant's mere presence on the premises where drugs are
found is insufficient to establish possession of the drugs. See Rusher,
966 F.2d at 878. There is more than sufficient evidence, however, to
establish that Clark was not merely present at Norman's home. First,
Clark told the police that the bedroom was his room. Clark's resi-
dence at Norman's home in a room containing the narcotics and the

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drug paraphernalia is sufficient to sustain the conviction. See United
States v. Morrison, 991 F.2d 112 (4th Cir. 1993). Second, the bed-
room contained the narcotics and several personal items belonging to
Clark, such as his pants, an I.D. card, and prescription medication.
See United States v. Dunlap, 28 F.3d 823, 826 (8th Cir. 1994) (impor-
tant personal items belonging to the appellant, such as documents, in
the same location as the drugs may indicate constructive possession);
United States v. Blackwood, 913 F.2d 139, 143 (4th Cir. 1990) (per-
sonal items found in room can establish that defendant had dominion
and control over the room and over the narcotics seized within the
room). Third, Clark was found in possession of a large amount of
cash, which is consistent with a narcotics distribution enterprise. See
United States v. Fisher, 912 F.2d 728, 731 (4th Cir. 1990).

Despite Clark's contention that the bedroom was a common room
shared with others, there were no personal items seized which
belonged to anyone else, nor was there anyone in the room when
police arrived. In any event, determinations of credibility are within
the sole province of the jury and are not susceptible to judicial review.
See United States v. Burgos, 94 F.3d 849, 863 (4th Cir. 1996) (quota-
tion omitted), cert. denied, ___ U.S. ___, 65 U.S.L.W. 3586 (U.S.
Feb. 24, 1997) (No. 96-6868).

Accordingly, we affirm Clark's conviction and sentence. We dis-
pense with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and argument
would not aid the decisional process.

AFFIRMED

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