                  COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Fitzpatrick, Judges Elder and Bray
Argued at Chesapeake, Virginia


McARTHUR TABLES
                                           MEMORANDUM OPINION * BY
v.   Record No. 1419-99-1                   JUDGE RICHARD S. BRAY
                                              FEBRUARY 29, 2000
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
                      Walter J. Ford, Judge

          Charles E. Haden for appellant.

          Stephen R. McCullough, Assistant Attorney
          General (Mark L. Earley, Attorney General, on
          brief), for appellee.


     McArthur Tables (defendant) was convicted in a bench trial

for possession of cocaine with intent to distribute, a violation

of Code § 18.2-248.   On appeal, he complains that the evidence was

insufficient to support the conviction.    We agree and reverse the

decision of the trial court.

     "On appeal, 'we review the evidence in the light most

favorable to the Commonwealth, granting to it all reasonable

inferences fairly deducible therefrom.'"    Archer v. Commonwealth,

26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997) (citation omitted).

The credibility of the witnesses, the weight accorded testimony,

and the inferences drawn from the proven facts are matters to be


     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
determined by the fact finder.    See Long v. Commonwealth, 8 Va.

App. 194, 199, 379 S.E.2d 473, 476 (1989).   The judgment of the

trial court will not be disturbed unless plainly wrong or

unsupported by evidence.   See Code § 8.01-680.

     Viewed accordingly, the record discloses that Hampton Police

Officer Greg Williams stopped an automobile for a traffic

violation at approximately 1:25 a.m. on May 4, 1998.   The vehicle

was occupied by four persons, including the driver, two in both

the front and rear.   Defendant was seated at the right rear,

"staring into space" and "somewhat incoherent," appearing

"intoxicated" or "under the influence of something."   After

everyone exited the vehicle, Williams "shined [his] light" inside

and observed "a baggy" of suspected cocaine," 1 "on the floorboard"

"right where [defendant's] feet were," and immediately arrested

him for the instant offense.   No money or "smoking devices" were

on defendant's person, and he denied knowledge of the drugs.

     During the investigation, the driver was found in possession

of scales and a "large sum of money" and was also arrested for a

drug offense. 2




     1
       Subsequent analysis identified the substance as 29.9 grams
of crack cocaine.
     2
       The record suggests that the driver was convicted for
possession of cocaine.

                                 - 2 -
     In challenging the sufficiency of the evidence to support the

conviction, defendant argues that the Commonwealth failed to prove

that he knowingly and intentionally possessed the offending drugs.

          To support a conviction based on
          constructive possession, as in this case,
          "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)).   Thus, "'[s]uspicious circumstances,

including the proximity to a controlled drug, are insufficient

to support a conviction.'"     McNair v. Commonwealth, 31 Va. App.

76, 86, 521 S.E.2d 303, 308 (1999) (en banc) (citation omitted);

see also Code § 18.2-250(A).

     Where "a conviction is based on circumstantial evidence,

'all necessary circumstances proved must be consistent with

guilt and inconsistent with innocence and exclude every

reasonable hypothesis of innocence.'"     Garland v. Commonwealth,

225 Va. 182, 184, 300 S.E.2d 783, 784 (1983) (quoting Inge v.

Commonwealth, 217 Va. 360, 366, 228 S.E.2d 563, 567 (1976)).

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).

                                 - 3 -
     In Crisman v. Commonwealth, 197 Va. 17, 87 S.E.2d 796

(1955), the Supreme Court of Virginia addressed circumstances

which mirror the instant record.   Police stopped a vehicle

occupied by five persons, including the two defendants, the

Crisman brothers, both in the back seat.    A search of the car

revealed heroin on the rear floor, but everyone denied knowledge

of the narcotics.   In reversing the conviction, the Court

concluded

            that it would be unreasonable to assume that
            the occupants of the front seat would have
            dropped the powder in the back of the car in
            plain view of the defendants. It appears
            equally unreasonable to assume that the
            occupants of the rear seat would have
            deposited the drug immediately under their
            feet rather than spill it to the winds
            through the car window. . . . Who put it
            there or who had possession of it before it
            was placed on the floor we do not know. The
            conclusion that the defendants, or either of
            them, possessed the drug is speculation
            rather than proof.

Id. at 20, 87 S.E.2d at 798-99.

     Here, the drugs were discovered on the rear floor of a

darkened car occupied by four persons, defendant, another person

on the back seat with him, a driver then in possession of

scales, a large sum of cash, and committing a drug offense, and

an additional front seat passenger.     Defendant, apparently

heavily intoxicated and incoherent, made no furtive or

suspicious movements before or after the stop, uttered no

inculpating remark or statement, or otherwise incriminated


                                - 4 -
himself.   Such evidence, without more, clearly fails to exclude

every reasonable hypothesis of defendant's innocence.

     Accordingly, the evidence was insufficient to prove that

defendant possessed the offending drugs, and we reverse the

conviction.

                                       Reversed and final judgment.




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