COURT OF APPEALS OF VIRGINIA 

Present: Judges Baker, Fitzpatrick and Annunziata 

Argued at Alexandria, Virginia 

ADONIS G. HICKS 

 MEMORANDUM OPINION*

v. Record No. 1924-96-4 BY JUDGE JOSEPH E. BAKER 

 NOVEMBER 18, 1997 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY 

J. Howe Brown, Judge 

 Crystal A. Meleen, Senior Assistant Public 

Defender (Office of the Public Defender, on 

brief), for appellant. 

 Ruth Ann Morken, Assistant Attorney General 

(Richard Cullen, Attorney General, on brief), 

for appellee. 

 Adonis G. Hicks (appellant) was convicted in a jury trial 

for possession of cocaine with intent to distribute. On appeal, 

he contends that (1) the evidence was insufficient to prove that 

he was aware of the presence and character of the cocaine and 

that it was subject to his dominion and control, and (2) the 

trial court erroneously refused to respond to the jury's question 

regarding the applicability of parole to appellant's sentence.1

For the reasons that follow, we affirm appellant's conviction. 

 

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

designated for publication. 

 1Appellant does not challenge the validity of the entry or 

search of the residence. 
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SUFFICIENCY OF THE EVIDENCE

 Under familiar principles of appellate review, we examine 

the evidence in the light most favorable to the Commonwealth, 

granting to it all reasonable inferences fairly deducible 

therefrom. See Traverso v. Commonwealth, 6 Va. App. 172, 176, 

366 S.E.2d 719, 721 (1988). The jury's verdict will not be 

disturbed unless plainly wrong or without evidence to support it. 

See id. The credibility of a witness, the weight accorded the 

testimony, and the inferences to be drawn from proven facts are 

matters solely for the fact finder's determination. See Long v. 

Commonwealth, 8 Va. App. 194, 199, 379 S.E.2d 473, 476 (1989). 

The fact finder is not required to believe all aspects of a 

witness' testimony; it may accept some parts as believable and 

reject other parts as implausible. See Pugliese v. Commonwealth, 

16 Va. App. 82, 92, 428 S.E.2d 16, 24 (1993). 

 [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 

(1987) (quoting Drew v. Commonwealth, 230 Va. 471, 473, 338 

S.E.2d 844, 845 (1986)) (other citation omitted). Possession 

"need not always be exclusive. The defendant may share it with 

one or more." Josephs v. Commonwealth, 10 Va. App. 87, 99, 390 
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S.E.2d 491, 497 (1990) (en banc). 

 Although mere proximity to the drugs is insufficient to 

establish possession, it is a factor that may be considered in 

determining whether the accused possessed drugs. See Brown v. 

Commonwealth, 15 Va. App. 1, 9, 421 S.E.2d 877, 882 (1992) (en

banc). Ownership or occupancy of the premises on which the drugs 

are found is also a circumstance probative of possession. See

Drew, 230 Va. at 473, 338 S.E.2d at 845 (citing Code § 18.2-250). 

 Thus, in resolving this issue, the Court must consider "the 

totality of the circumstances disclosed by the evidence." Womack 

v. Commonwealth, 220 Va. 5, 8, 255 S.E.2d 351, 353 (1979). 

 Circumstantial evidence of possession is sufficient to 

support a conviction provided it excludes every reasonable 

hypothesis of innocence. See, e.g., Tucker v. Commonwealth, 18 

Va. App. 141, 143, 442 S.E.2d 419, 420 (1994). However, "[t]he 

Commonwealth need only exclude reasonable hypotheses of innocence 

that flow from the evidence, not those that spring from the 

imagination of the defendant." Hamilton v. Commonwealth, 16 Va. 

App. 751, 755, 433 S.E.2d 27, 29 (1993). Whether an alternative 

hypothesis of innocence is reasonable is a question of fact, see

Cantrell v. Commonwealth, 7 Va. App. 269, 290, 373 S.E.2d 328, 

339 (1988), and a determination by the fact finder, therefore, is 

binding on appeal unless plainly wrong. See Traverso, 6 Va. App. 

at 176, 366 S.E.2d at 721. 

 In this case, the only reasonable hypothesis flowing from 
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the evidence, viewed in the light most favorable to the 

Commonwealth, is that appellant was aware of the presence and 

character of the cocaine and exercised dominion and control over 

it. When the police arrived at the residence with the warrant 

for appellant's arrest, appellant's mother confirmed that he 

resided there but was not at home. She then led them to a 

bedroom she identified as appellant's. In a closet in that 

bedroom, the police found a set of scales with white powder 

residue and a piece of crack cocaine weighing 0.195 grams on the 

shelf beside the scales. Appellant's mother "verified that that 

was definitely the Defendant's room." 

 Appellant telephoned while the officers were present and was 

advised that the officers had a warrant for his arrest, to which 

appellant responded, "if it's an arrest warrant, you can't look 

in my personal papers and you can't search my coat." After 

obtaining a search warrant, the police found a tan winter coat in 

appellant's size in the closet in which the scales had been 

found. The coat's pockets contained a bag of 23.669 grams of 

cocaine and two pay stubs bearing appellant's name and covering 

two pay periods for the month prior to the search. Elsewhere in 

the room, the officers found a variety of personal papers bearing 

appellant's name, including multiple job applications, a resume, 

other pay stubs, school diplomas, a traffic summons and a 

Virginia identification card. 

 The trial court correctly concluded that appellant's 
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statement regarding the search of his coat and personal papers 

was sufficient to show that appellant was aware of the presence 

and character of the cocaine in his coat and on the shelf above 

his coat and that he exercised dominion and control over it. The 

jury was likewise entitled to conclude that this was the only 

reasonable hypothesis flowing from all the evidence. Although 

appellant's mother testified at trial that others had access to 

the room and that appellant stayed there only occasionally, the 

jury, as the finder of fact, was free to disregard her testimony 

as incredible. See Pugliese, 16 Va. App. at 92, 428 S.E.2d at 

24. 

INSTRUCTING THE JURY ON THE POSSIBILITY OF PAROLE

 Appellant contends that the trial court erroneously refused, 

in response to a question from the jury during deliberations,2 to 

instruct them on the inapplicability of parole to appellant's 

sentence. The court responded simply, "You must set the sentence 

you find to be appropriate under the circumstances and not 

concern yourselves with what may happen afterward." 

 This assignment of error is controlled by Mosby v. 

Commonwealth, 24 Va. App. 284, 482 S.E.2d 72 (1997), in which we 

held that "in non-capital felony cases a trial judge is not 

required to instruct the jury that the defendant, if convicted, 

will be ineligible for parole." Id. at 286, 482 S.E.2d at 72; 

 

 2The jury asked, "What part of the sentence must be served 

before possibility of parole?" 
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see Walker v. Commonwealth, 25 Va. App. 50, 60-67, 486 S.E.2d 

126, 131-35 (1997). A defendant has no due process right under 

Simmons v. South Carolina, 512 U.S. 154 (1994),3 to such an 

instruction. See Mosby, 24 Va. App. at 288-90, 482 S.E.2d at 

73-74. This principle applies equally to formal instructions 

given prior to jury deliberation and questions asked by the jury 

after deliberations have begun. 

 For these reasons, we affirm appellant's conviction. 

 Affirmed.

 

 3Simmons requires such an instruction only when the 

Commonwealth argues future dangerousness in capital cases. See

Mosby, 24 Va. App. at 286, 290, 482 S.E.2d at 72, 74.