                     COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Annunziata and Senior Judge Hodges
Argued at Norfolk, Virginia


CARY CLINTON STACY

v.         Record No. 1565-94-1         MEMORANDUM OPINION * BY
                                      JUDGE ROSEMARIE ANNUNZIATA
COMMONWEALTH OF VIRGINIA                  DECEMBER 19, 1995


          FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
                   William F. Rutherford, Judge

          Douglas Fredericks (E. Jane Anderson, on
          brief), for appellant.

          Monica S. McElyea, Assistant Attorney General
          (James S. Gilmore, III, Attorney General, on
          brief), for appellee.



     Following a bench trial on May 23, 1994, the appellant, Cary

Clinton Stacy ("Stacy"), was convicted of possession of heroin

with intent to distribute.    On June 21, 1994, the trial court

fined Stacy $100 and sentenced him to twenty years in prison,

suspending ten years.    On appeal, Stacy argues that the evidence

was insufficient to support the conviction.    For the following

reasons, we reverse.

     On November 5, 1993, Norfolk police officers executed a

search warrant at 3029 Kimball Terrace in Norfolk.   Investigator

Biemler entered first, proceeding through the dark home until he

reached a well-lit kitchen.    Upon reaching the kitchen, Biemler

saw three males standing by the kitchen's open back door.   At
     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
trial, Biemler identified Stacy as one of those men.    There was

no evidence that Stacy lived at that address or was other than a

casual visitor there.

        Upon entering the kitchen, Biemler ordered the three men to

get on the floor.    Before the men reacted, Biemler tripped on a

bicycle positioned between Biemler and the men, causing all four

men to fall to the ground, close to where they were standing.

The bike landed on top of the subjects, and Biemler landed on top

of the bike.    Stacy landed on his back and/or side, his head and

shoulders resting upon a cabinet.    Biemler, who had his gun drawn

on the subjects, then ordered the men to put their hands in plain

view.    Unlike the other two subjects who immediately complied,

Stacy hesitated, though he eventually brought forth his hands.

At trial, Biemler could not recall where Stacy's hands had been

during the period of hesitation.
        One by one, Biemler got the men up and passed them to his

partner who searched and identified them.    Biemler noticed

nothing in the way of evidence upon removing the first two men.

However, when Stacy got up, Biemler noticed a plastic baggie and

some money on the floor.    In the baggie were fourteen glassine

envelopes containing heroin.    The baggie lay approximately six

inches from the counter against which Stacy came to rest.      The

money amounted to sixty-eight dollars (thirteen five-dollar bills

and three ones).    Another bag, this one containing cocaine, was

recovered from behind the door.    The door was opened against the




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kitchen wall when Biemler entered; Stacy was standing adjacent to

the door.    The bag of cocaine was found behind the door after

Biemler closed it, and it lay approximately three feet from the

place where Stacy had fallen.    Before tripping on the bike,

Biemler did not have a chance to inspect the kitchen floor, and

he did not see Stacy throw anything to the ground.    After

searching Stacy, the officers found no weapons, drugs, or money

on his person.    Biemler testified that Stacy made no statement

and took no action, to indicate his ownership or control over it.

        When considering the sufficiency of the evidence on appeal

in a criminal case, this Court views the evidence in a light most

favorable to the Commonwealth.     Higginbotham v. Commonwealth, 216

Va. 349, 352, 218 S.E.2d 534, 537 (1975).    On review, this Court

may not substitute its own judgment for that of the trier of

fact.     Cable v. Commonwealth, 243 Va. 236, 239, 415 S.E.2d 218,

220 (1992).    Instead, the trial court's judgment will not be set

aside unless it appears that the judgment is plainly wrong or

without supporting evidence.    Code § 8.01-680; Josephs v.
Commonwealth, 10 Va. App. 87, 99, 390 S.E.2d 491, 497 (1990) (en

banc) (quoting Martin v. Commonwealth, 4 Va. App. 438, 443, 358

S.E.2d 415, 418 (1987)).

        It cannot be disputed that Stacy ended his fall in close

proximity to the drugs.    Based on that evidence, the Commonwealth

first contends that Stacy had actual possession of the drugs:

Stacy's position relative to the drugs put them in his physical




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possession and gave him immediate and exclusive control.

Alternatively, the Commonwealth argues that Stacy maintained

constructive possession of the drugs.

     To support a conviction for either actual or constructive

possession, the Commonwealth must establish that an accused

knowingly and intentionally possessed that which he is accused of

possessing.    Burton v. Commonwealth, 215 Va. 711, 713, 213 S.E.2d

757, 758-59 (1975); Buono v. Commonwealth, 213 Va. 475, 476, 193

S.E.2d 798, 799 (1973) ("To establish `possession' in a legal

sense it is not sufficient to simply show actual or constructive

possession of the drug by the defendant.   The Commonwealth must

also establish that the defendant intentionally and consciously

possessed it with knowledge of its nature and character.");
Williams v. Commonwealth, 14 Va. App. 666, 669, 418 S.E.2d 346,

348 (1992); see also 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)) ("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.'").

     As such, an accused's mere proximity to contraband or his

presence on the premises where it is found are, alone,



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insufficient to establish constructive possession.   See, e.g.,

Brown v. Commonwealth, 15 Va. App. 1, 9, 421 S.E.2d 877, 882

(1992); Nelson v. Commonwealth, 17 Va. App. 708, 711, 440 S.E.2d

627, 628-29 (1994).   Indeed, proximity and presence, together,

are insufficient where the evidence does not show that the

defendant knowingly possessed what he is accused of possessing.

See Scruggs v. Commonwealth, 19 Va. App. 58, 61-63, 448 S.E.2d

663, 665-66 (1994) (defendant, owner and driver of car in which

drugs found within passenger seat, did not constructively possess

drugs because evidence failed to show defendant knew drugs were

there); Jones v. Commonwealth, 17 Va. App. 572, 574, 439 S.E.2d
863, 864 (1994) (defendant, passenger in car where drugs found

both between passenger and driver seats and under passenger seat,

did not constructively possess drugs because evidence failed to

show how long defendant had been in car, whether defendant saw

drugs between seats, or whether defendant knew of drugs under

seat); Nelson, 17 Va. App. at 711, 440 S.E.2d at 628-29 (1994)

(defendant, present in hotel room where drugs found, did not

constructively possess drugs because drugs not in plain view, no

drugs found on defendant, and evidence failed to show how long

defendant had been in room).

     Thus, even if Stacy's physical relationship to the drugs

amounts to possession, either actual or constructive, the

Commonwealth must still establish, beyond a reasonable doubt,

that Stacy knowingly and intentionally possessed the drugs.    To



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meet its burden the Commonwealth may produce evidence of

circumstances tending to show that Stacy was aware of the

presence and character of the drugs.    See, e.g., McGee v.

Commonwealth, 4 Va. App. 317, 322, 357 S.E.2d 738, 740 (1987).

However, where the Commonwealth's case is based on circumstantial

evidence, all the necessary circumstances proved must be

consistent with guilt and inconsistent with innocence to

establish guilt beyond a reasonable doubt.    E.g., Harrell v.
Commonwealth, 11 Va. App. 1, 9, 396 S.E.2d 680, 684 (1990).

     Here, to establish the requisite knowledge on Stacy's part,

the Commonwealth relies solely on the testimony of Officer

Biemler that Stacy delayed in bringing forth his hands when so

ordered.   The Commonwealth relies on this evidence to infer that

Stacy did something with the drugs during the delay, an act

establishing his knowledge of the presence and character of the

drugs.   Other than Stacy's delay in raising his hands, there is

no evidence of suspicious conduct on Stacy's part tending to show

he was aware of the presence and character of the drugs.

     This circumstance fails to exclude, beyond a reasonable

doubt, reasonable inferences of Stacy's innocence.   Officer

Biemler testified that, when he entered the kitchen, he tripped

on a bicycle causing all four men to fall to the ground.      The

bicycle landed on top of Stacy and the other two suspects, and

Biemler landed on top of the bicycle.   Given this sequence of

events, it cannot be concluded that the evidence excludes the



                               - 6 -
hypothesis that Stacy's hands were innocently trapped under

either himself, the bicycle, or one of the other men at the time.

       Moreover, when the men fell to the floor, Stacy landed on

his back or his side.   The drugs were found six inches from the

cabinet against which his head and shoulders rested.   By

inference, the drugs were behind him, not beneath him.   The

Commonwealth's evidence on this point is contradictory; Biemler

first testified that the drugs were beneath Stacy but, upon

further cross-examination, agreed the drugs weren't "underneath

his body proper."   Biemler then qualified his answer, stating

"All I can say is when I picked him up, that's when I spotted

it."   The bag of cocaine was found behind the door, three feet

away from Stacy.    The evidence therefore does not exclude the

hypothesis that the drugs were on the floor--near the cabinet and

behind the door--unbeknownst to Stacy prior to his entry.
       Finally, the evidence shows that two other men occupied the

kitchen during the arrest.   The evidence does not exclude the

possibility that one of the other two men discarded the drugs

upon hearing Biemler move through the home.

       As such, the evidence is insufficient to support Stacy's

conviction.   We accordingly reverse.

                                                            Reversed.




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