A Rehearing En Banc was granted in this case on October 16, 1995. 

COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Moon, Judge Annunziata and 

 Senior Judge Hodges 

Argued at Richmond, Virginia 

STANLEY REYNOLD BRATHWAITE 

 MEMORANDUM OPINION* BY 

v. Record No. 0790-94-2 CHIEF JUDGE NORMAN K. MOON 

 AUGUST 15, 1995 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND 

James B. Wilkinson, Judge 

 Felipita Athanas for appellant. 

 Linwood T. Wells, Jr., Assistant Attorney 

General (James S. Gilmore, III, Attorney 

General, on brief), for appellee. 

 Stanley Reynold Brathwaite appeals his bench trial 

convictions of possession of cocaine and possession of a firearm 

while unlawfully in possession of cocaine. Brathwaite argues 

that the Commonwealth's evidence was insufficient to convict him. 

 We disagree and affirm Brathwaite's convictions. 

 The Commonwealth's evidence established that a Richmond 

police officer executed a search warrant on a motel room occupied 

by Brathwaite, two females, and an infant child. The motel room 

was not registered to Brathwaite. Upon the officer's entrance, 

Brathwaite was lying on the closest of two beds to the door on 

the left side of the room. The bed was half made, and Brathwaite 

appeared to be lying on top of the bed covers, with his head 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
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propped up on his hand and his elbow or arm touching two stacked 

pillows. A search of the room uncovered .12 grams of cocaine in 

one part of the room. A .357 revolver and .16 grams of cocaine 

packaged in tissue paper were found under one of the pillows on 

the bed where Brathwaite was lying. 

 At Brathwaite's trial the officer who searched the motel 

room testified that the .357 revolver and .16 grams of cocaine 

were found about twelve inches from Brathwaite's hand. The 

officer testified that, as he entered the motel room, Brathwaite 

was lying on the bed, and "[t]he pillow was lying on his arm like 

sitting up on his arm. His head was off the pillow looking over 

at us." 

 Brathwaite made no statements concerning the cocaine or 

revolver. Brathwaite made no furtive motions or gestures away 

from the cocaine and did not attempt to prevent the officers from 

searching the room. The record does not reveal to whom the room 

was registered, what time of day the search was made, how 

Brathwaite was dressed, how long he had been in the room, or 

whether there were clothes or other items belonging to him 

located in the room. 

 [P]ossession of a controlled substance may be actual or 

constructive. . . . "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.'" 

McGee v. Commonwealth, 4 Va. App. 317, 322, 357 S.E.2d 738, 740 
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(1987) (quoting Drew v. Commonwealth, 230 Va. 471, 473, 338 

S.E.2d 844, 845 (1986)) (emphasis added). This Court is guided 

by the principles concerning constructive possession of 

controlled substances when determining whether a defendant 

constructively possessed a firearm. See Blake v. Commonwealth, 

15 Va. App. 706, 708, 427 S.E.2d 219, 220 (1993). 

 While mere proximity to contraband is insufficient to 

establish possession, and an accused's occupancy of the premises 

does not give rise to a presumption of possession, these factors 

are circumstances to be considered by the fact finder with other 

evidence in determining whether a defendant constructively 

possessed drugs. See Lane v. Commonwealth, 223 Va. 713, 292 

S.E.2d 358 (1982); Hambury v. Commonwealth, 3 Va. App. 435, 350 

S.E.2d 524 (1986); see also Fogg v. Commonwealth, 216 Va. 394, 

395, 219 S.E.2d 672, 673 (1975). 

 We hold that the proximity of Brathwaite to the drugs and 

revolver coupled with his occupancy of the room was a sufficient 

basis for inferring his constructive possession of the cocaine. 

The evidence tended to prove that Brathwaite's arm was within 

inches of the cocaine and large firearm, a .357 pistol, 

underneath the pillow where they were discovered by the officer. 

 The trial court, therefore, reasonably concluded that Brathwaite 

was aware of the presence, nature and character of the cocaine. 

 Furthermore, we decline to subscribe to Brathwaite's 

argument that his case should be reversed based on the case of 

Fogg. To the contrary, his case is factually dissimilar and does 
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not merit reversal. In Fogg, the contraband was found away from 

the defendant in a bag on a window sill. In this case, cocaine 

and a very large revolver, while not in plain sight, were found 

only inches from Brathwaite's arm underneath a pillow on a bed on 

top of which only he was lying. Accordingly, we affirm 

Brathwaite's convictions. 

 Affirmed.
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Annunziata, J., dissenting. 

 When the evidence against an accused is wholly 

circumstantial, as here, "[a]ll necessary circumstances proved 

must be consistent with guilt and inconsistent with innocence and 

must exclude every reasonable hypothesis of innocence." Boothe 

v. Commonwealth, 4 Va. App. 484, 492, 358 S.E.2d 740, 745 (1987). 

 The Commonwealth's circumstantial evidence fails to exclude 

the hypothesis that Brathwaite entered the motel room only a 

short time before the officer, laid down on the bed, which 

unknown to him had contraband concealed under the pillow. 

 Accordingly, I respectfully dissent from the majority 

opinion and would reverse and dismiss the convictions.