COURT OF APPEALS OF VIRGINIA 

Present: Judges Baker, Coleman and Senior Judge Cole 

Argued at Richmond, Virginia 

CRAIG JEROME MORRIS 

v. Record No. 1507-95-3 MEMORANDUM OPINION*

 BY JUDGE JOSEPH E. BAKER 

COMMONWEALTH OF VIRGINIA MAY 14, 1996 

 FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG 

Mosby G. Perrow, III, Judge 

 Sharon K. Eimer, Senior Assistant Public 

Defender (Office of the Public Defender, on 

brief), for appellant. 

 Monica S. McElyea, Assistant Attorney General 

(James S. Gilmore, III, Attorney General, on 

brief), for appellee. 

 Craig Jerome Morris (appellant) appeals his bench trial 

convictions by the Circuit Court of the City of Lynchburg (trial 

court) for possession of cocaine with intent to distribute in 

violation of Code § 18.2-48 and possession of a firearm while 

unlawfully possessing cocaine in violation of Code § 18.2-308.4. 

 Appellant argues on appeal: (1) that the evidence is 

insufficient to show that he possessed cocaine; (2) that the 

evidence is insufficient to sustain his conviction for possession 

of cocaine with intent to distribute; and (3) that the evidence 

is 

insufficient to sustain his conviction for knowingly possessing a 

firearm while in unlawful possession of cocaine. 

 

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

designated for publication. 
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 In passing upon the sufficiency of the evidence, we view the 

evidence in the light most favorable to the Commonwealth, 

granting to it all reasonable inferences fairly deducible 

therefrom. Wright v. Commonwealth, 224 Va. 502, 505, 297 S.E.2d 

711, 713 (1982). Guided by that principle, we find the record 

discloses that on November 22, 1994, at 10:27 p.m., the Lynchburg 

Police Department executed a search warrant at a residence in 

Lynchburg. Fifty-four seconds after the police knocked on the 

back door of the residence, Helen Abbott (Abbott) opened the 

door. Investigator P. K. Morris (Morris) entered the residence 

and found appellant in an upstairs bedroom which he later 

admitted was his own. 

 Among the items related to the drug trade found in 

appellant's bedroom were a pouch containing a baggie in which 

there was .50 grams of cocaine; behind a television set another 

baggie containing .18 grams of cocaine; under appellant's bed in 

a suitcase a .45 caliber revolver and a radio receiver; also 

under the bed in a green pouch, a .32 caliber pistol with a clip 

containing several rounds of ammunition; two police scanners, one 

on a shelf above appellant's bed, the other a larger "shelf" 

scanner located on appellant's dresser; a pager next to 

appellant's bed; $307 cash in an "ammo box" in appellant's 

bedroom closet; $75 cash in the bottom drawer of appellant's 

dresser; "25 to 50" small, one-inch Ziploc baggies in that bottom 

drawer; another 25 to 50 baggies in the upper left-hand dresser 
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drawer; and two baggies of marijuana, one on the shelf above 

appellant's bed, the other between appellant's bed mattress and 

box springs. 

 Appellant presented at trial evidence that was contrary to 

statements he gave to the police at the time he was arrested. 

For example, he told the police that the pager was his but at 

trial he presented evidence through a witness who asserted that 

the pager was that of the witness. Appellant initially told the 

police that he was keeping the guns for his brother to prevent 

his brother from killing his wife, yet at trial he denied any 

knowledge of the presence of the guns in his room prior to the 

police arriving at the residence. Initially, appellant told the 

police that the $307 was his and was being kept as his rent 

money; however, at trial, he denied the money was his and 

presented a witness who claimed the money was hers. 

 Possession of a controlled substance may be actual or 

constructive. Archer v. Commonwealth, 225 Va. 416, 418, 303 

S.E.2d 863, 863 (1983). 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 (1987) (quoting Drew v. 

Commonwealth, 230 Va. 471, 473, 338 S.E.2d 844, 845 (1986)). 
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Although mere proximity to the controlled substance is 

insufficient to establish possession, it is a factor to consider 

when determining whether the accused constructively possessed 

drugs. Gillis v. Commonwealth, 215 Va. 298, 301, 208 S.E.2d 768, 

770-71 (1974). The ownership or occupancy of the premises where 

the items were found is another factor that may be considered "to 

prove that the owner or occupant exercised dominion and control 

over [the items]." Burchette v. Commonwealth, 15 Va. App. 432, 

435, 425 S.E.2d 81, 83 (1992). 

 In all cases of circumstantial evidence the 

conduct of the accused is always an important 

factor in the estimate of the weight of the 

circumstances which point to his guilt. 

Where a conviction rests upon circumstantial 

evidence, much weight is given to 

contradictory statements of material facts by 

the accused. Each should be considered along 

with other facts and circumstances shown in 

evidence to determine whether, upon the whole 

case, the evidence excludes every reasonable 

hypothesis consistent with the accused's 

innocence. 

Toler v. Commonwealth, 188 Va. 774, 781, 51 S.E.2d 210, 213 

(1949). 

 The trial court found the testimony of appellant and his 

witness not credible, rejecting appellant's claim that the 

cocaine had been placed in his room by another. As the Court in 

Toler said: 

The facts, accepted by the [trier of fact], 

admitted of inferences of guilt more probable 

and natural than of any reasonable hypothesis 

of innocence, and warranted the [trier of 

fact] in rejecting his explanations as 

untrue. In other words, the facts 

established are consistent with his guilt and 
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inconsistent with his innocence. 

188 Va. at 146, 235 S.E.2d at 214. Appellant's proximity to the 

drugs, their location in his bedroom, and his inconsistent 

statements support the finding of the trial court that appellant 

possessed the cocaine found in his room. 

Possession of Cocaine With Intent to Distribute

 In order to support appellant's conviction for possession of 

cocaine with intent to distribute, the Commonwealth must prove 

beyond a reasonable doubt that he intended to distribute the 

cocaine that he possessed. See Patterson v. Commonwealth, 215 

Va. 698, 699, 213 S.E.2d 752, 753 (1975). 

 The evidence reveals that appellant was in possession of .68 

grams of cocaine, a pager, two police scanners, two handguns, 50 

to 100 one-inch square, plastic baggies, $382 cash ($75 in the 

dresser next to his bed and $307 in an ammunition box in his 

closet), and two baggies of marijuana; that no paraphernalia 

necessary for the personal use of cocaine was found; that 

appellant stated he did not personally consume cocaine, only 

marijuana; and that appellant made inconsistent statements 

concerning his knowledge of the existence of the black pouch and 

the ownership of the cocaine it held, the ownership of the pager, 

and the ownership of the money found in his room. 

 The absence of paraphernalia necessary for personal 

consumption, coupled with appellant's admission that he did not 

personally use cocaine is strong evidence of an intent to 
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distribute. The presence of a pager, police scanners, weapons, 

and small plastic baggies where the cocaine was found also 

support the trial court's judgment. See Servis v. Commonwealth, 

6 Va. App. 507, 371 S.E.2d 156 (1988) (the presence of 

paraphernalia used in the drug trade is relevant to proof of 

intent to distribute). In addition, the trial court was entitled 

to place much weight on appellant's inconsistent statements 

concerning material facts of the case. Toler, supra, 188 Va. at 

781, 51 S.E.2d at 213. 

 We hold that the evidence is sufficient to support its 

submission to the trier of fact that concluded appellant was 

guilty as charged. Viewing the evidence in its totality, we 

cannot say that the conclusion of the trial court was plainly 

wrong or without evidence to support it. 

Possession of a Firearm While in Possession of Cocaine

 Code § 18.2-308.4 provides that any person who unlawfully 

possesses cocaine and "simultaneously with knowledge and intent 

possesses any firearm" is guilty of a felony. To uphold a 

conviction under Code § 18.2-308.4, "actual possession of both 

the firearm and the controlled substance is not required . . . . 

Constructive possession of either or both is sufficient for 

conviction." Jefferson v. Commonwealth, 14 Va. App. 77, 80, 414 

S.E.2d 860, 862 (1992). It is not necessary that "[t]he 

Commonwealth . . . prove that [appellant] had ready access to 

either the gun or the cocaine to establish 'simultaneous 
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possession.'" Id. at 81, 414 S.E.2d at 862. 

 Having determined that appellant possessed the cocaine, the 

issue becomes whether appellant possessed either or both of the 

firearms found in his room. 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 [object] and that it was 

subject to his dominion and control." Powers v. Commonwealth, 

227 Va. 474, 476, 316 S.E.2d 739, 740 (1984). 

 Appellant told Morris that the handguns found under his bed 

were not his, but that his brother had entrusted them to him. 

This evidence alone is sufficient to prove that appellant was 

aware of the presence and character of the firearms, and that 

they were subject to his dominion and control; thus, establishing 

constructive possession. 

 Accordingly, the judgment of the trial court is affirmed. 

Affirmed.