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 ("defendan t") appeals his conviction by bench trial of posses sion of coca ine in violation of Code § 18.2-250 on the ground that th e evidence was in sufficient 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), establ ishes that the de fendant's vehicle was stopped by Officer Jake Rice of the Jame s City County Police Department on Se ptember 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 conducte d the stop after obse rving the de fendant’s vehicle “sitti ng” in a road with its headlights on and after determining that the defendant, the re gistered owner of the vehicle, had a suspende d operator’s license. The defe ndant was driving the vehi cle at the time of the stop. When asked to pr oduce his oper ator’s license and car registration, the defendant bega n searching for th e items on the back seat and fl oorboard of the vehicle, which he ld stacks of papers bearing his name and a variety of bags . When the officer asked the defendan t whether he knewhis license was suspended, the defendant asse rted that his lice nse was not suspen ded and that it had been reinstated. As Officer Rice requ ested the de fendant’s driving record fr om the dispatch center, he noticed th e defendant “digging in towa rds the back of the car” and floo rboard section through the bags and papers in th at section of th e car. Officer Rice asked the defendan t whether there were any drugs in his car. The defendant repl ied, “no.” The officer asked the defendant for permission to se arch the vehicle. The defendant gave consent to the search and exited the vehicle, remaining behind the car while the search was conducted.

- 2 - Officer Rice found a twelve-o unce Dr. Pepper can under a console between th e driver’s and passenger’ s side of the vehicle and a twelve-ounce Malt Liquor beer can un der the passenger seat. Both cans had se veral "holes punched in th e side” and co ntained an odorless, burnt re sidue. Neithe r can was in pl ain view whenfound. Based on his training and ex perience, Of ficer Rice testified that su ch cans are "kno wn to be used for smoking crack cocaine.” Ultimately, the residue test ed positive for cocaine. Upon discovery of the cans, Officer Rice arrested the defendant for poss ession of cocain e and driving wi th a suspended license. Office r Rice told the defendant of the discovery of the cans and advised him of the charges un derlying the arrest. After the officer advised the defe ndant of his Miranda rights, the defendant admi tted knowledge of the cans’ presence in the car, explaining that someone else had put them there. Th e defendant also advised Officer Rice that he did not smoke cocaine. In his testimony, Officer Rice conceded that , because the cocaine residue was odorless, so meone who did no t use cocaine would not likelybe able to tell the cans contained co caine. He noted that the cans woul d have some type of od or if they had been used to smok e marijuana. On appeal, the de fendant cont ends the evidence is insufficient to support his convic tion because th e Commonwealth failed to prove that he was awar e of the characte r of the residue on the cans discovered inhis car. We disagree.

- 3 - “The judgment of a trial court sitting withou t a jury is entitled to the sa me weight as a jury verd ict and will not be set aside unless it appears from the evidence the judgment is plainly wrong or without eviden ce to supp ort it.” Martin v. Commonwealth , 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987). When thesufficiency of evidence is challenged on appeal, the appellate court considers th e evidence in th e light most favorable to the Commonwealth and grants it all reasonable infere nces deducible from that evidence. See Parks v. Commonwealth , 221 Va. 492, 498, 270 S.E.2d 755, 759 (1980), cert. denied , 450 U.S. 10 29 (1981). The credibility of the witnesses and the weight accorded their testimony are matt ers solely within the province of the trial court. See Bridgeman v. Commonwealth , 3 Va. App. 52 3, 528, 351 S.E.2d 598, 601 (1986). An appe llate 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).

- 4 - To support a conv iction based upon constr uctive possession of drugs, “‘the Commonwe alth must point to evidence of acts, statements, or cond uct of the accused or other facts or circumstances which tend to show that the defend ant was aware of both the presence and character of the substa nce and that it was subject to his domini on and control.’” Langston v. Commonwealth , 28 Va. App. 276, 28 5, 504 S.E.2d 380, 384 (1998) (quoting Drew v. Commonwealth , 230 Va. 471, 473, 338 S.E.2d 844, 845 (1986)). “Although mere proximit y to the drugs is insu fficient to establish possession, and oc cupancy of [a] vehicle do es not give rise to a presumption of possession, bo th are factors which may be considered in de termining whet her a defendant po ssessed drugs.” Josephs v. Commonwealth , 10 Va. App. 87, 100, 390 S.E.2d 491, 498 (1990) ( en banc ).Here, the eviden ce establishes that Officer Ri ce stopped the defendant in a car regi stered in his name. At the time of the stop, the defendan t was the sole occupant of his vehicle, which contained a multit ude of papers bearing hi s name. After observing the defendant “dig ging through” the bags and papers in the rear seat, ostensib ly in response to the officer’s request for his driver’s license an d registration , Officer Rice asked the defendant to step out of the car and, up on searchin g the car, found two cans containi ng cocaine resi due hidden from plain view in separate places wi thin the passenger comp artment; one was under the front passenge r seat and the other was in the cons ole between the driver and front pa ssenger seats of the vehicle. These cans were noticeably modi fied for the purpose of using them as a smoking device, an d the defendant ad mitted that he knew of their presence. Based on the defendant’ s knowledge of the cans’ presence, the trie r of fact was en titled to infe r 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 it s character.”). Notwithstanding this evidence, the de fendant cont ends the Commonwealth failed to rebut the reasonab le hypothesis of innocence that someone else brought the cans into his car without his knowledge that they contained cocaine resi due. The defendant bases this claim on his statements th at he did not smoke cocaine

- 5 -and that “someone else ” placed the cans in his car, as well as Officer Rice’s testimon y that a “plain pers on” might no t realize that the cans contai ned cocaine residue. When the Commonwealth proceeds on th e basis of circumstantial evidence, it “need only exclude reason able hypotheses of innocence that flow from the evidence, not th ose that spring from the imagination of the defendant.” Patrick v. Commonwealth , 27 Va. App. 655, 662, 500 S.E. 2d 839, 843 (1998). The reasonab leness of the hypothesis is a question of fact. See Cantrell v. Commonwealth , 7 Va. App. 269, 290, 373 S.E.2d 32 8, 339 (1988). Absent credible eviden ce supporting such a hypothesis , “‘[t]he Commonwealth is no t required to pr ove that there is no possibility that someone else may have planted, discarded, abandoned or placed the drugs and para phernalia in the [vehicle].’” Langston , 28 Va. App. at 286, 504 S.E.2d at 384 (citat ion omitted). Here, no credible evidence supports the defendant’s hypothesis that so meone else placed the cans inside his car. The trial court was not required to accept in toto the defendant’s statements and was entitl ed 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 th e Commonwealth, the defendant’s statement that “someone else” placed the cans in his car must be viewed as an attempt to conceal hi s guilt. See id. (finding that

- 6 -a defendant’s excu lpatory statem ent, when viewed in the light most favorable to the Common wealth, “must be interpreted . . . as mere fabrications to conceal guilt . . .”). Fina lly, given the defendant’s repr esentation to police that he had a valid operator’s license whenhis driving re cord showed th at his license had been suspended, th e trial court wa s entitled to infer that the defendant was lyin g at the time of the st op to concea l his guilt with respect to the instant of fense. See Pearson v. Commonwealth , 221 Va. 936, 946, 275 S.E.2d 89 3, 900 (1981); Burgess v. Commonwealth , 14 Va. App. 1018 , 1025, 421 S. E.2d 664, 668 (1992) (“[W]here a defe ndant gives a fa lse account of circumstances surrounding a crim e, the trial cour t is entitled to infer that the defendant lied to conceal his guilt.”). In sum, based on the defend ant’s knowledge of the cans’ presence in his car, the defendan t’s suspicious movements inside his car while poli ce attempted to obtain his driving record, the discovery of the cans inside the car and hidd en from plain view, the defendant’s so le ownership an d 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 stat ements that “someo ne else” placed the cans in his car and that he didn’t smoke cocaine, we find that th e evidence was sufficient to prove beyond a reas onable doubt that the defendant was awar e of the characte r 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 suff icient evidence of possession based on th e defendant’s so le occupancy of a rental car, admission that everything in the car belong ed to him, contradictory statements concerning a package in the car that contained drug s, and ultimate admission that the pack age was given to him to deliver to an unknown person notw ithstanding his further statement that he did not know what the package contained). Accordingly, the conv iction is affirmed. Affirmed.

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