COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Moon, Judges Coleman and Bray 

Argued at Norfolk, Virginia 

ROBERT LEE BOLEY 

 MEMORANDUM OPINION* BY 

v. Record No. 1943-95-1 JUDGE RICHARD S. BRAY 

 JULY 23, 1996 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK 

William F. Rutherford, Judge 

 Michael D. Eberhardt for appellant. 

 John K. Byrum, Jr., Assistant Attorney 

General (James S. Gilmore, III, Attorney 

General, on brief), for appellee. 

 Robert Lee Boley (defendant) was convicted in a bench trial 

for possessing (1) cocaine with intent to distribute, (2) 

marijuana with intent to distribute, (3) a firearm, and (4) a 

firearm by a convicted felon. On appeal, defendant contends that 

the evidence was insufficient to support the convictions. We 

agree and reverse each. 

 The parties are fully conversant with the record, and we 

recite only those facts necessary to a disposition of this 

appeal. 

 In accordance with well established principles, we assess 

the sufficiency of the evidence viewing the record in the light 

most favorable to the Commonwealth, granting to it all reasonable 

inferences fairly deducible therefrom. Martin v. Commonwealth, 4 

 

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

designated for publication. 
- 2 - 

Va. App. 438, 443, 358 S.E.2d 415, 418 (1987). The judgment of a 

trial court, sitting without a jury, is entitled to the same 

weight as a jury verdict and will be disturbed only if plainly 

wrong or without evidence to support it. Id. 

 The record discloses that on November 18, 1994, Norfolk 

police found defendant, undressed and showering, in the hall 

bathroom of an apartment being searched pursuant to a warrant.1 

Three additional persons, including defendant's brother, were in 

various rooms of the apartment. The search revealed two 

revolvers, a semiautomatic pistol, a plastic bag containing 

marijuana, several boxes of ammunition, approximately $760 in 

cash, and a plastic bag containing 73 empty plastic bags located 

in bedrooms and closets. Additionally, on or near a "speaker" 

resting on the living room floor, police found cocaine, a digital 

pager, and approximately 140 "color-coded" plastic bags. On the 

floor beside the speaker, police discovered a "vinyl case" for 

electronic scales, $90 in cash, two cellular telephones and 

batteries, a key ring with several keys (one of which unlocked 

the apartment door), and a shoe containing thirteen individual 

plastic bags of marijuana. A pager and "some jewelry" were also 

found "on a box in the hallway." 

 Defendant was advised of his Miranda rights, and admitted 

ownership of a "cellular phone, money, keys, and some 

jewelry . . . laying on the floor next to the speaker in the 

 

 1The validity of this search warrant is not at issue. 
- 3 - 

front room." These articles had been found to the "left of the 

speaker," a "foot or less" from the cocaine and "six or seven 

feet" from the closeted guns. 

 Tameka Ellis, the lessee of the apartment, was not present 

during the search. Various papers, including identification 

documents, and personal belongings located in a bedroom, 

suggested that defendant's brother resided in the apartment. A 

Commonwealth witness had observed defendant in the apartment on 

two separate occasions over a period of six months. 

 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." 

Drew v. Commonwealth, 230 Va. 471, 473, 338 S.E.2d 844, 845 

(1986) (quoting Powers v. Commonwealth, 227 Va. 474, 476, 316 

S.E.2d 739, 740 (1984)). "Suspicious circumstances, including 

proximity to a controlled drug, are insufficient to support a 

conviction." Behrens v. Commonwealth, 3 Va. App. 131, 135, 348 

S.E.2d 430, 432 (1986). However, while "mere proximity to the 

drugs is insufficient to establish possession, and occupancy of 

the [premises] does not give rise to a presumption of possession, 

Code § 18.2-250, both are factors which may be considered in 

determining whether a defendant possessed drugs." Josephs v. 

Commonwealth, 10 Va. App. 87, 100, 390 S.E.2d 491, 498 (1990) (en 

banc). These principles of constructive possession are also 
- 4 - 

applicable in prosecutions for offenses related to firearm 

possession. Blake v. Commonwealth, 15 Va. App. 706, 708-09, 427 

S.E.2d 219, 221 (1993). 

 When the Commonwealth relies wholly on circumstantial 

evidence to prove constructive possession, "'all necessary 

circumstances proved must be consistent with guilt and 

inconsistent with innocence and exclude every reasonable 

hypothesis of innocence.'" Burchette v. Commonwealth, 15 Va. 

App. 432, 434, 425 S.E.2d 81, 83 (1992) (citations omitted). 

 Here, defendant was found showering in a bath accessed by a 

hallway in the apartment, and the evidence established only that 

he entered the living room and bathroom. No drugs or firearms 

were found on or near his person, and he engaged in no conduct 

suggestive of an awareness that contraband was present on the 

premises. No evidence proved that he had an ownership or 

possessory interest in the apartment. Thus, save defendant's 

presence, the proximity of his property to contraband, and a key 

to the apartment on his key ring, nothing in the record related 

him to the offenses. While highly suspicious, these 

circumstances are insufficient to prove, to the exclusion of 

every reasonable hypothesis of innocence, that the drugs and 

weapons were subject to defendant's dominion and control. 

 Accordingly, we reverse the convictions. 

 Reversed and dismissed.