COURT OF APPEALS OF VIRGINIA

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COURT OF APPEALS OF VIRGINIA

Present: Judges Baker, Coleman and Overton
Argued at Salem, Virginia

JOHN ARTHUR YIAADEY
MEMORANDUM OPINION BY
v. Record No. 0025-97-3 JUDGE SAM W. COLEMAN III
DECEMBER 23, 1997
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF STAUNTON
Rudolph Bumgardner, III, Judge

John R. Hooe, III, Assistant Public Defender,
for appellant.

John K. Byrum, Jr., Assistant Attorney
General (Richard Cullen, Attorney General, on
brief), for appellee.

John Arthur Yiaadey was convicted for possession of cocaine,
a schedule II controlled substance, in violation of Code
18.2-250. The issue on appeal is whether the evidence was
sufficient to prove that Yiaadey constructively possessed
cocaine. We find the evidence sufficient and affirm the
conviction.
The Commonwealth may prove possession of a controlled
substance by showing either actual or constructive possession of
the contraband. White v. Commonwealth, 24 Va. App. 446, 452, 482
S.E.2d 876, 879 (1997). "To support a conviction based on
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.'" Id. (quoting McGee v.
Commonwealth, 4 Va. App. 317, 322, 357 S.E.2d 738, 740 (1987)
(other citation omitted)). A defendant's possession need not be
exclusive; a person may violate Code 18.2-250 by jointly
possessing or sharing drugs with another. See Gillis v.
Commonwealth, 215 Va. 298, 300, 208 S.E.2d 768, 770 (1974)
(upholding trial court finding that co-occupants of apartment
jointly possessed hash pipe and marijuana which was found in open
view in area shared by both occupants).
In order to prove constructive possession, the Commonwealth
may, and frequently must, rely on circumstantial evidence. See
Burchette v. Commonwealth, 15 Va. App. 432, 434, 425 S.E.2d 81,
83 (1992). Although the Commonwealth's evidence need not
disprove every remote possibility of innocence, see Cantrell v.
Commonwealth, 7 Va. App. 269, 289, 373 S.E.2d 328, 338 (1988), it
must "'exclude every reasonable hypothesis of innocence.'"
Pemberton v. Commonwealth, 17 Va. App. 651, 655, 440 S.E.2d 420,
422 (1994) (quoting Garland v. Commonwealth, 225 Va. 182, 184,
300 S.E.2d 783, 784 (1983)).
On appeal, we view the evidence in the light most favorable
to the Commonwealth and grant to it all reasonable inferences
therefrom. Higginbotham v. Commonwealth, 216 Va. 349, 352, 218
S.E.2d 534, 537 (1975). So viewed, the evidence was sufficient
to support the trial court's finding that Yiaadey constructively
possessed cocaine.
Staunton Police Investigator Mark Diehl and other officers
went to the apartment of Jaythea Dunson with a warrant to search
the premises. After knocking and announcing their presence, the
officers entered and in a small back room of the apartment found
Yiaadey, a twenty-eight-year-old man from the District of
Columbia, and Diron Holmes, an eighteen-year-old man from Oxon
Hill, Maryland. Investigator Diehl observed eleven packets of
cocaine lying in open view on the floor approximately five to six
feet from where Yiaadey had been standing. Diehl observed
Yiaadey's open wallet, which contained three dollars, lying next
to Holmes on a sofa; an additional twenty-seven dollars on the
sofa near the wallet; and $400 in cash scattered in front of and
behind the sofa. Additionally, the officers seized $430 in cash
from Holmes' person; a pager found on Yiaadey; and a pager and a
notebook identified as Holmes' containing phone listings, which
were located on a coffee table near the sofa. At first, Yiaadey
denied knowing either Holmes or Dunson. However, he later stated
that he had rented a car four days earlier to drive Holmes from
Maryland to Staunton and that he had now returned to drive Holmes
back to Maryland.
From these facts, the trial court could reasonably conclude
that Yiaadey was aware of the presence and nature of the cocaine
and that he jointly and constructively possessed the cocaine
found in Dunson's apartment. Packets of cocaine were found in
open view a few feet from Yiaadey. Although proximity to drugs
is not alone sufficient to prove possession, it is "'a factor to
consider when determining whether the accused constructively
possessed [them].'" White, 24 Va. App. at 452, 482 S.E.2d at 879
(quoting Brown v. Commonwealth, 15 Va. App. 1, 9, 421 S.E.2d 877,
882 (1992) (en banc)). In addition, Yiaadey gave inconsistent
explanations to the police for his presence with Holmes in
Staunton.
Furthermore, the evidence shows that Yiaadey drove a long
distance with Holmes to Staunton for no apparent purpose and
returned several days later to take him back. But, most
important, the drugs were located in plain view where Yiaadey
would know of the obvious presence, nature, and character of the
substance. Furthermore, the officers found Yiaadey's wallet
lying open next to Holmes with several hundred dollars in
currency scattered around and behind the sofa. Significantly,
the $3 in Yiaadey's wallet, the $27 next to his wallet, and the
$400 around the sofa totaled the same amount found on Holmes, a
circumstance from which the fact finder could conclude that the
two had evenly divided a sum of money. The foregoing facts are
sufficient for the fact finder to infer that Yiaadey and Holmes
participated in a drug operation, that they jointly possessed the
cocaine, and that they equally divided the proceeds from the sale
of drugs.
The appellant urges us to accept Holmes' testimony as a
reasonable hypothesis of his innocence. However, the trial court
was not required to give any weight to his testimony. In a bench
trial, it is within the province of the trial judge to ascertain
a witness' credibility and to accept or reject a witness'
testimony. Bridgeman v. Commonwealth, 3 Va. App. 523, 528, 351
S.E.2d 598, 601 (1986). Although Holmes testified that he alone
possessed the cocaine without Yiaadey's knowledge and that he
took the cocaine from his pocket and threw it on the floor when
the police arrived, the trial court was not required to believe
that testimony or his account of Yiaadey unwittingly bringing him
to Staunton to sell drugs. The Commonwealth's evidence was
sufficient to exclude every reasonable hypothesis of Yiaadey's
innocence.
For these reasons, we affirm the conviction.
Affirmed.

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