COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Clements and Senior Judge Overton Argued at Chesapeake, Virginia

RICHARD EARL BROCK, JR. MEMORANDUM OPINION * BY v. Record No. 0271-04-1 JUDGE NELSON T. OVERTON DECEMBER 14, 2004 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF SUFFOLK Westbrook J. Parker, Judge Barrett R. Richardson (Richardso n and Rosenberg, LLC, on brief), for appellant. Margaret W. Reed, Assistant Atto rney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.
Richard Earl Brock, Jr. appeals from his conviction for possession of cocaine with intent to distribute. Appellant argues that the evidence was insufficien t as a matter of law to support his conviction because it failed to prove beyond a reasonable doubt that he possessed the cocaine found at 244 Pine Street, Suffolk, Virginia. 1 Finding no error, we affirm. “On appeal, ‘we review the ev idence in the light most fa vorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom.’” Archer v. Commonwealth , 26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997) (citation omitted). So viewed, the evidence proved that on July 18, 2003, Suffolk police officers executed a search warrant at a residence loca ted at 244 Pine Street, in Suffol k, Virginia. That residence was

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.

1 Appellant does not argue that the ev idence was insufficient to prove beyond a reasonable doubt that he intended to distribute the cocaine. Accordingly, we will not address that issue on appeal.-2- a house divided into two apartments. At the time the officers executed the search warrant, appellant, Eric Mack, and Mar que Butler were present inside one of the apartments. Prior to the search warrant being executed, Ma ck had been inside th e apartment for about one and one-half hours. He had been playing vi deo games with Butler, while appellant watched them. During that time, six to seven persons kno cked on the door of the apartment. Each time a person knocked on the door, appellant answered th e door, and then he and that person walked down a small hallway towards the ba ck of the apartment. They stayed there for five to ten seconds, returned to the front of the apartment, and the person who had knocked at the door left. After that, appellant would sit back down and continue watchi ng Mack and Butler play video games. The apartment had a living room in th e front, and a bedroom and bathroom off of the hallway, which led to the kitchen in the back of the apartment. At some point, Mack heard a person, outside the apartment, say, “Get down.” At that point, appellant and Butler ran past Mack toward s the back of the apartment. Mack followed them to the back of the apartm ent, and found the police blocking the back door. Then Mack ran back towards the front of the apartment and jumped on a bed as the police entered the apartment. Mack denied ever seeing any drugs or paraphernalia in the apartmen t. Mack believed that Annie Austin and Butler lived at the house a nd that appellant did not live there. Investigator D.L. White, who was the fifth police officer through the door upon entry into the apartment at 244 Pine Street to execute the s earch warrant, saw Mack on the bed when he got to the bedroom. Upon instructions from anot her officer, White checked the toilet in the bathroom next to the back bedroom and found a DVD case floating on the top of the water in the toilet. On top of the DVD case, White found elev en small ziplock baggies, which each contained a white rock-like substa nce, later confirmed to be crack cocaine, with a total weight of 1.029 grams. In a search of appellant’s person, White recovered $111 in United States currency from-3- appellant’s pants pocket, in dominations of six ones, seven fives, one ten, and three twenties. In a trashcan next to the toilet, White found small ziplock baggies, a razor blade, a nail, and some trash. Thereafter, White left the residence at 244 Pine Street and went to 257 Holladay Street. White returned to 244 Pine Street approximately one hour later. Upon his return to 244 Pine Street, White r ecovered (1) $767 in Un ited States currency from between the mattress and the wall in the be droom, (2) three smaller plastic ziplock baggies from the top of the dresser in the bedroom, (3 ) another DVD case, which contained residue, later confirmed to be cocaine, from the bedroom, (4) tw o hand-held radios from the dresser drawer in the bedroom, (5) a picture of Butler from the dre sser in the bedroom, (6) documents in the name of Butler and Austin from the bedroom, and (7) a cell phone in the living room. Investigator James Buie testified that when the officers arrived to execute the search warrant, there was one person on the porch, who yelle d, “Police,” and then tried to leave. Buie went to the rear of the reside nce and found appellant and Butler attempting to exit. Appellant and Butler were taken into custody at that time. Buie, who knew Bu tler and appellant, stated that he believed they were related and that Austin was Butler’s mother. Buie stated that appellant and Butler had shared residences before. Buie, who qualified as an expert in the packaging and distribution of controlled substa nces, testified as follows as to how drug sales in homes usually

occur: [C]ustomers come to the door, knock on the door, most of the time are accepted into the residence because a lot of dealers don’t want to deal out on their porch b ecause they’re afraid somebody is watching. If they’re accepted into the residence will go into the residence, purchase the cocaine or the narcotic, and then leave the residence, usually only staying a couple of minutes. “Constructive possession may be established by ‘evidence of act s, 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 the character of the s ubstance and that it was subject to his dominion-4- and control.’” Logan v. Commonwealth , 19 Va. App. 437, 444, 452 S.E.2d 364, 368-69 (1994) ( en banc ) (citation omitted). “‘Mere proximity to a controlled drug is not sufficient to establish dominion and control.’ Proxim ity is, however, a factor that can be considered ‘when determining whether the accused constructively po ssessed drugs.’ Furthermore, the defendant may possess the drugs jointly with one or mo re other persons.” Copeland v. Commonwealth , 42 Va. App. 424, 440, 592 S.E.2d 391, 398 (2004) (citations omitted). “To resolve the issue, the Court must consider the totality of the circum stances established by the evidence.” Williams v. Commonwealth , 42 Va. App. 723, 735, 594 S.E.2d 305, 311 (2004). Circumstantial evidence may be sufficient to prove possession, as long as it excludes all r easonable hypotheses of innocence flowing from the evid ence. Higginbotham v. Commonwealth , 216 Va. 349, 352-53, 218 S.E.2d 534, 537 (1975). Based on the testimony of the Commonwealth’s witnesses, a nd the reasonable inferences fairly deducible therefrom, a fact finder could conclude beyond a reasonab le doubt that appellant was selling cocaine from inside th e residence located at 244 Pine St reet and that he was aware of the presence, nature, and character of the cocaine found in that reside nce. Mack testified that six to seven persons knocked on the doo r at various times. On each of those occasions, appellant was the person who answered the door. Then appellant and the person who had knocked on the door walked to the back of the house, in close proximity to wh ere the cocaine was ultimately found, where they stayed for a brief time, before returning to the front of the house, where the person who had knocked on the door left. Buie testif ied that this behavior was consistent with someone conducting drug sales from a residence. When someone outside on the porch yelled “Police” or “Get down,” appell ant and Butler tried to run from the back of the house. In addition, the evidence proved that at times, appellan t had shared a residence with Butler. Thus, contrary to appellant’s asserti ons, the evidence did not merely show that he was present in an-5- apartment owned by someone else when the police discovered the cocaine. Rather, the evidence revealed appellant’s conduct while inside the apar tment, which when combined with the totality of the facts and circumstances di sclosed by the evidence, was suffici ent to exclude all reasonable hypotheses of appellant’s innocence and to suppo rt the finding beyond a reasonable doubt that appellant was in constructive possession of the crack cocaine. Accordingly, the Commonwealth’s eviden ce was sufficient to support appellant’s conviction for possession of cocaine with intent to distribute. Affirmed.