                                             Tuesday        3rd

          December, 2002.


Christopher Cain, s/k/a
 Christopher T. Cain,                                       Appellant,

against      Record No. 2879-00-1
             Circuit Court Nos. 43952-00 through 43954-00

Commonwealth of Virginia,                                   Appellee.


                          Upon a Rehearing En Banc

      Before Chief Judge Fitzpatrick, Judges Benton, Elder,
Annunziata, Bumgardner, Frank, Humphreys, Clements, Agee, Felton
                            and Kelsey


             Paul E. Turner, Jr., for appellant.

             Eugene Murphy, Assistant Attorney
             General (Jerry W. Kilgore, Attorney
             General, on brief), for appellee.


          By memorandum opinion dated July 16, 2002, a divided

panel of this Court affirmed the judgment of the trial court.

We stayed the mandate of that decision and granted rehearing en

banc.

          Upon rehearing en banc, it is ordered that the stay of

this Court's July 16, 2002 mandate is lifted, and the judgment

of the trial court is affirmed for the reasons set forth in the

panel majority.

          Chief Judge Fitzpatrick and Judge Benton dissent for

the reasons set forth in the dissenting opinion of the panel.
            It is ordered that the trial court allow counsel for

the appellant an additional fee of $200 for services rendered

the appellant on the rehearing portion of this appeal, in

addition to counsel's costs and necessary direct out-of-pocket

expenses.   This amount shall be added to the costs due the

Commonwealth in the     July 16, 2002 mandate.

            This order shall be certified to the trial court.


                            A Copy,

                                 Teste:

                                          Cynthia L. McCoy, Clerk

                                 By:

                                          Deputy Clerk




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                        COURT OF APPEALS OF VIRGINIA


Present:  Chief Judge Fitzpatrick, Judge Annunziata and
           Senior Judge Overton
Argued at Chesapeake, Virginia


CHRISTOPHER CAIN, s/k/a
 CHRISTOPHER T. CAIN
                                           MEMORANDUM OPINION * BY
v.   Record No. 2879-00-1                  JUDGE NELSON T. OVERTON
                                                JULY 16, 2002
COMMONWEALTH OF VIRGINIA


           FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
                        Robert W. Curran, Judge

             Paul E. Turner, Jr., for appellant.

             Eugene Murphy, Assistant Attorney General
             (Jerry W. Kilgore, Attorney General, on
             brief), for appellee.


     Christopher T. Cain appeals his bench trial convictions for

possession of cocaine, heroin and marijuana with the intent to

distribute. He argues the evidence is insufficient to support

his convictions.     He contends the Commonwealth failed to

establish he possessed the drugs in question.      For the reasons

that follow, we disagree and affirm his convictions.

                              BACKGROUND

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

favorable to the Commonwealth, granting to it all reasonable



     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.

                                 - 3 -
inferences fairly deducible therefrom.'"    Archer v.

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

(citation omitted).

     So viewed, the evidence proved that Officer R. Davis

observed a taxi cab improperly stop in the roadway.     Davis began

following the cab and prior to pulling it over, he saw Cain, the

only back seat passenger, lean over to the left.   When Davis

stopped the car he noted that Cain was sitting on the passenger

side of the back seat.   He also observed a black knit hat on the

driver's side rear floorboard that appeared to have something

inside it.   Davis testified the hat was in the same area in

which Cain had just been leaning.   Davis also noted that Cain

appeared unusually nervous.   Davis arrested the driver of the

cab for carrying a concealed weapon and arrested the front seat

passenger on an outstanding warrant.

     After the arrests, Officer Richardson retrieved the black

hat and discovered cocaine, heroin and marijuana inside it.     The

officers searched Cain incident to his arrest and found $491.00,

in small denominations, in his pockets.    Cain provided the

officers with inconsistent explanations for the source of the

large amount of cash.    Cain first stated the money belonged to

his girlfriend and later explained the money was his mother's.

The officers found no smoking devices or other drug

paraphernalia in the car.


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                               ANALYSIS

     "The Commonwealth may prove possession of a controlled

substance by showing either actual or constructive possession."

Barlow v. Commonwealth, 26 Va. App. 421, 429, 494 S.E.2d 901,

904 (1998).

             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."

Drew v. Commonwealth, 230 Va. 471, 473, 338 S.E.2d 844, 845

(1986) (citation omitted).    "The Commonwealth is not required to

prove that there is no possibility that someone else may have

planted, discarded, abandoned or placed drugs . . . ."      Brown v.

Commonwealth, 15 Va. App. 1, 10, 421 S.E.2d 877, 883 (1992)

(en banc).    Davis testified that he saw Cain lean over towards

the area where he later saw the drug-filled hat.    Cain was the

only passenger in the back seat and was in close proximity to

the drugs.    "While proximity to a controlled substance is

insufficient alone to establish possession, it is a factor to

consider when determining whether the accused constructively

possessed the drugs."     Id. at 9, 421 S.E.2d at 882.

     Cain appeared extremely nervous when Davis shone his

flashlight in the back seat and expressed a need to exit the car

as Davis returned to his cruiser to obtain results from his DMV

                                 - 5 -
inquiry.   Additionally, Cain was carrying a large amount of cash

in small bills and provided the officers with inconsistent

explanations for his possession of the money.    See Hetmeyer v.

Commonwealth, 19 Va. App. 103, 111-12, 448 S.E.2d 894, 899-900

(1994) (noting that defendant's possession of a large sum of

money in a hotel room where drugs were found was a factor in

determining whether defendant constructively possessed the drugs

with intent to distribute).

     "[I]n resolving this issue, the Court must consider 'the

totality of the circumstances disclosed by the evidence.'"

Spivey v. Commonwealth, 23 Va. App. 715, 725, 479 S.E.2d 543,

548 (1997) (citation omitted).    Davis observed Cain leaning

towards the very area where he later saw the hat.   Cain was the

only person in the back seat of the car where the drugs were

found and was in close proximity to them.   He acted nervous and

was anxious to get out of the car and provided the officers with

inconsistent statements regarding the large sum of money on his

person.    The Commonwealth's evidence was competent, was not

inherently incredible, and was sufficient to prove beyond a

reasonable doubt that Cain possessed the drugs the officers

found in the hat.

     Accordingly, we affirm the decision of the trial court.

                                                         Affirmed.




                                 - 6 -
Fitzpatrick, C.J., dissenting.


     I respectfully dissent from the majority opinion, which

holds that sufficient evidence proved that appellant possessed

cocaine, heroin and marijuana.

     It is well established that "occupancy of [an automobile]

where [a] drug is found does not create a presumption of

possession."   Walton v. Commonwealth, 255 Va. 422, 426, 497

S.E.2d 869, 872 (1998) (citing Code § 18.2-250.1(A) and Garland

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

See also Crisman v. Commonwealth, 197 Va. 17, 87 S.E.2d 796

(1955), and Hancock v. Commonwealth, 21 Va. App. 466, 465 S.E.2d

138 (1995).

     The majority finds the evidence sufficient to establish

that appellant, a passenger in a cab, possessed drugs found

under a hat on the back floor board.     They base this decision on

appellant's nervousness at the scene, the fact that the officer

saw him lean over in the cab and that he had $491 in cash.

          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."

Drew v. Commonwealth, 230 Va. 471, 473, 338 S.E.2d 844, 845

(1986) (citation omitted).


                                 - 7 -
     At most, this evidence proved that appellant was nervous

when both the driver and front seat passenger were arrested and

that he "leaned" in the direction of the drugs which were

covered by a hat.   The additional fact that he had approximately

$500 in cash does not establish beyond a reasonable doubt that

he possessed the drugs.    Thus, the evidence in this case, at

best, creates a mere suspicion or possibility that appellant

possessed the drugs.   The circumstances were not such that one

could reasonably infer, to the exclusion of every reasonable

hypothesis of innocence, that appellant knew of the presence,

nature and character of the drugs found in the taxicab in which

he was a passenger and that it was subject to his dominion and

control.   See Garland v. Commonwealth, 225 Va. 182, 184, 300

S.E.2d 783, 784 (1983).    Therefore, I would reverse and dismiss

appellant's convictions.




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