                       COURT OF APPEALS OF VIRGINIA


Present: Judges Bumgardner, Felton and Senior Judge Overton
Argued at Chesapeake, Virginia


KEONA M. LAWRENCE, S/K/A
 KENOA MONIQUE LAWRENCE
                                          MEMORANDUM OPINION * BY
v.   Record No. 1153-02-1             JUDGE RUDOLPH BUMGARDNER, III
                                               APRIL 1, 2003
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF THE CITY OF SUFFOLK
                    Rodham T. Delk, Jr., Judge

          Denise Winborne, Assistant Public Defender
          (Office of the Public Defender, on brief),
          for appellant.

          Michael T. Judge, Assistant Attorney General
          (Jerry W. Kilgore, Attorney General;
          Linwood T. Wells, Jr., Assistant Attorney
          General, on brief), for appellee.


     Keona M. Lawrence contends the evidence was insufficient to

prove she possessed a firearm while in possession of a

controlled substance, Code § 18.2-308.4.   We agree the evidence

was insufficient to prove possession of the firearm and reverse

the conviction.

     We view the evidence in the light most favorable to the

Commonwealth and accord it all reasonable inferences fairly

deducible therefrom.    Commonwealth v. Taylor, 256 Va. 514, 516,

506 S.E.2d 312, 313 (1998).   The defendant was in her


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
second-floor bedroom with Darious Simmons when his girlfriend,

Laura Ricks, arrived.   An argument ensued, and the defendant

left to call the police from a public telephone.   She remained

outside her house until the police arrived.   As the defendant

spoke to the officer, Laura Ricks came outside and told the

officer, "there was cocaine and a gun in the [defendant's]

upstairs bedroom."    The officer entered, saw two adults and a

child in the living room, others on the stairwell, and a male

and female upstairs at the doorway to the defendant's bedroom.

     The defendant gave the officer permission to search her

bedroom.   He found a handgun between the mattress and box

springs of the bed.   He also saw a dollar bill and a plastic

straw with cocaine residue on a dresser four feet from the bed.

The defendant admitted the cocaine was hers, but at all times

she denied the firearm was hers.   The defendant testified that a

friend told her Laura Ricks and Darious Simmons had put the gun

under the mattress.   The defendant also testified Darious

Simmons had told her he put the gun there.

     To prove constructive possession, the Commonwealth must

point to evidence of acts, statements or conduct of the

defendant that tend to show she was aware of the presence of the

firearm and exercised dominion and control over it.    Drew v.

Commonwealth, 230 Va. 471, 473, 338 S.E.2d 844, 845 (1986).

     "Where evidence is entirely circumstantial, all necessary

circumstances proved must be consistent with guilt and
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inconsistent with innocence, and must exclude every reasonable

hypothesis of innocence."    Bridgeman v. Commonwealth, 3 Va. App.

523, 526, 351 S.E.2d 598, 600 (1986).

     The firearm was found under the defendant's mattress, in

her bedroom, in her house, which she alone occupied with her

infant child.    However, no other evidence of any acts, conduct,

or statements links her to the firearm.   Evidence shows others

had access to the place, and opportunity and motive to hide the

firearm there.   The defendant, Laura Ricks, and Darious Simmons

were in the bedroom when the defendant left to call the police.

Several people remained in the house, and two were upstairs at

the door to the defendant's bedroom when the police entered.

Laura Ricks came out to the porch and told the officer about the

gun though it was secreted in a place not readily or normally

accessed by visitors.   Ricks and Simmons had access to the

defendant's bedroom while the defendant was not present and had

a motive to hide the gun if police arrived.

     In Clodfelter v. Commonwealth, 218 Va. 619, 623, 238 S.E.2d

820, 822 (1977), drugs found in a motel room rented to the

defendant, which contained his property, were insufficient to

prove possession because someone else had been in the room.    In

Burchette v. Commonwealth, 15 Va. App. 432, 438, 425 S.E.2d 81,

86 (1992), evidence seized from the defendant's locked vehicle

was insufficient to prove possession because no evidence

indicated when the drugs were placed there, when the defendant
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last used the vehicle, or whether he had exclusive use of it.

Behrens v. Commonwealth, 3 Va. App. 131, 348 S.E.2d 430 (1986),

reversed a conviction though the drugs were found in a hotel

room rented to the defendant.   No evidence showed the defendant

had ever been in the room, but "two other men had been inside

. . . during the week it was registered in Behrens' name."     Id.

at 136, 348 S.E.2d at 433.   The facts of this case have the same

failing as those cases; they fail to exclude all reasonable

hypotheses of innocence.

     The evidence did not exclude the theory suggested by the

defendant's testimony that someone else put the firearm under

her mattress.   Other people were in her bedroom when the

defendant left to call the police.   They had reason to hide the

gun and the opportunity to put it under the mattress.   Nothing

connected the defendant to the gun or its hiding place except

the fact that it was her bedroom.    Cf. Birdsong v. Commonwealth,

37 Va. App. 603, 609, 560 S.E.2d 468, 471 (2002) (evidence

sufficient where drugs found in locked safe in defendant's

bedroom, his DNA was on sock in safe stuffed with cash, and no

evidence anyone other than defendant in room); Archer v.

Commonwealth, 26 Va. App. 1, 13, 492 S.E.2d 826, 832 (1997)

(evidence sufficient where firearm and knife found under

mattress in motel room rented to defendant where defendant told

police it may be there and admitted knife found was his,

girlfriend's presence did not affect defendant's knowledge and
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dominion and control over items found); Glasco v. Commonwealth,

26 Va. App. 763, 774-75, 497 S.E.2d 150, 155 (1998), aff'd, 257

Va. 433, 513 S.E.2d 137 (1999) (evidence sufficient where

defendant denied knowledge of drug in car before officer told

him he found any).

     After considering all the evidence in the light most

favorable to the Commonwealth, a reasonable hypothesis remains;

someone other than the defendant hid the firearm because the

police were coming.   When "evidence leaves indifferent which of

several hypotheses is true, or merely establishes only some

finite probability in favor of one hypothesis, such evidence

does not amount to proof of guilt beyond a reasonable doubt."

Sutphin v. Commonwealth, 1 Va. App. 241, 248, 337 S.E.2d 897,

900 (1985).

     We find the evidence was insufficient.   Accordingly, we

reverse the conviction and dismiss the indictment.

                                           Reversed and dismissed.




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