COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Coleman and Senior Judge Cole 

Argued at Richmond, Virginia 

CARLTON HARRIS, s/k/a 

 CARLTON F. HARRIS 

 MEMORANDUM OPINION* BY 

v. Record No. 1773-94-2 JUDGE JAMES W. BENTON, JR. 

 JANUARY 16, 1996 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF MECKLENBURG COUNTY 

Charles L. McCormick, III, Judge 

 Robert E. Hawthorne, Jr. (Hawthorne & 

 Hawthorne, P.C., on brief), for appellant. 

 Margaret Ann B. Walker, Assistant Attorney 

 General (James S. Gilmore, III, Attorney 

 General, on brief), for appellee. 

 A jury convicted Carlton F. Harris of possessing cocaine in 

violation of Code § 18.2-250. Harris contends the evidence was 

insufficient to prove beyond a reasonable doubt that he possessed 

the cocaine. We affirm the conviction. 

 I. 

 "Where the sufficiency of the evidence is challenged after 

conviction, it is our duty to consider [the evidence] in the 

light most favorable to the Commonwealth and give it all 

reasonable inferences fairly deducible therefrom." Higginbotham 

v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975). 

So viewed, the evidence proved that officers at Mecklenburg 

Correctional Center, a penitentiary, conducted a search of 

Carlton Harris' cell and the adjacent cell. Harris, who lived 

alone in the six feet by nine feet cell, cooperated with the 

 

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

designated for publication. 
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officers conducting the search. During the search of Harris' 

cell, one of the officers examined a corncob pipe that was in a 

cup on a table. The pipe contained a plastic wrapper that held a 

white substance. Laboratory tests established that the substance 

was cocaine. 

 Although the penitentiary's policy forbids an inmate from 

entering another inmate's cell, both Commonwealth and defense 

witnesses testified that inmates often enter other inmates' 

cells. Two inmates, Mark Peace and John Colclasure, testified 

for the defense that they entered Harris' cell on the day of the 

search. Peace testified "it's a possibility" that he left 

something in a corncob pipe in Harris' cell on that day. He 

denied placing drugs in Harris' cell. 

 Colclasure, a self-described "drug fiend" who occupied a 

cell next to Harris, testified that he knew of the search in 

advance. He said that he placed the cocaine and pipe in Harris' 

cell prior to the search when Harris went to get ice. Colclasure 

described the contents of the pipe. However, he admitted on 

cross-examination that he saw the officer remove the pipe during 

the search. Colclasure denied seeing the officer search the pipe 

and said he knew of the cocaine in the pipe because the cocaine 

belonged to him. 

 Colclasure further described an elaborate scheme by which he 

intended to involve Harris unwittingly in a plan to entrap a 

guard who was selling marijuana. Colclasure also testified that 
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he once planned an escape, possessed weapons while in prison, and 

obtained drugs by having his visitors smuggle them into the 

prison. 

 Harris testified he did not know the pipe or cocaine was in 

his cell until the officer discovered it. He also testified that 

Colclasure entered his cell several times before the search. He 

did not remember Colclasure leaving anything in his cell. Harris 

further testified that during his three years of incarceration he 

never had a visitor. 

 II. 

 To prove possession, the Commonwealth must show that Harris 

was aware of both the presence and character of the substance and 

that he had dominion and control over it. Wymer v. Commonwealth, 

12 Va. App. 294, 300, 403 S.E.2d 702, 706 (1991). This 

possession may be constructive and not actual. Lane v. 

Commonwealth, 223 Va. 713, 716, 292 S.E.2d 358, 360 (1982). 

 When asked by Harris' counsel why the search occurred, one 

of the officers testified that the prison authorities believed 

that Harris received contraband that day, which was visitation 

day at the penitentiary. The evidence also proved that prior to 

the search Harris was locked in his cell by himself. The cocaine 

was discovered among Harris' possessions. Although proximity to 

the drugs does not establish possession, it is a factor to be 

considered. Id. at 716, 292 S.E.2d at 360. Moreover, while 

occupancy of a specific area is not dispositive of possession, it 
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is certainly powerful evidence in a case such as this where only 

Harris lived in the small cell. See id.

 Furthermore, the credibility of witnesses and the weight of 

their testimony are matters to be determined by the jury. 

Schneider v. Commonwealth, 230 Va. 379, 382, 337 S.E.2d 735, 

736-37 (1985). Peace testified that he possibly put something in 

the corncob pipe. Colclasure, who admitted that he and Harris 

smoked marijuana together in prison, claimed to have placed the 

cocaine in the pipe. The jury could have rejected both of these 

versions of events as untruthful efforts to assist Harris. See

Crumble v. Commonwealth, 2 Va. App. 231, 236, 343 S.E.2d 359, 362 

(1986). 

 The principle is well established that "'the testimony of a 

witness may be wholly rejected by a jury, if from his manner and 

the improbability of his story or his self contradiction in the 

several parts of his narrative, the jury become convinced that he 

is not speaking the truth.'" Presley v. Commonwealth, 185 Va. 

261, 266, 38 S.E.2d 476, 478 (1946)(citation omitted). Much of 

Colclasure's testimony was intended to convey to the jury that he 

"set-up" Harris. Colclasure's testimony also consisted of a long 

list of prohibited activities that he participated in while 

incarcerated. His testimony in its entirety was related in such 

a fashion that the jury reasonably could have disbelieved that he 

truthfully testified. 

 In this case the Commonwealth had to prove Harris' knowledge 
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by circumstantial evidence. We conclude that the evidence was 

sufficient to prove beyond a reasonable doubt that Harris 

possessed the cocaine. "[A]ll necessary circumstances proved 

[were] consistent with guilt and inconsistent with innocence and 

exclude every reasonable hypothesis of innocence." Carter v. 

Commonwealth, 223 Va. 528, 532, 290 S.E.2d 865, 867 (1982) 

(citation omitted). 

 Accordingly, the conviction is affirmed. 

 Affirmed.