                   COURT OF APPEALS OF VIRGINIA


Present: Judges Coleman, Humphreys and Senior Judge Overton
Argued at Chesapeake, Virginia


WILLIAM H. HARRISON, JR.
                                           MEMORANDUM OPINION * BY
v.   Record No. 1973-99-1                 JUDGE ROBERT J. HUMPHREYS
                                                AUGUST 8, 2000
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF THE CITY OF SUFFOLK
                    Westbrook J. Parker, Judge

          David J. Whitted, Assistant Public Defender
          (Office of the Public Defender, on brief),
          for appellant.

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


     William H. Harrison, Jr. was convicted in a bench trial of

possession of heroin.   He argues on appeal that the evidence

presented was insufficient as a matter of law to support a

conviction.   We agree and for the reasons that follow, we

reverse the decision of the trial court.

                            I.   Background

     The parties are fully conversant with the facts of this

case, and this memorandum opinion recites only those facts

necessary to the disposition of the issue.



     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
     On December 30, 1998, Suffolk police officers were

conducting a narcotics surveillance of a residence.     At

approximately 3:00 p.m., they observed a white Ford, driven by

Harrison, pull up to the house and stop.     The officers testified

that they observed Harrison get out of the car and "hurriedly"

walk to the house.   Harrison then returned to his vehicle a few

minutes later with an occupant of the house, and they appeared

to look around in the back seat of the car.     The occupant of the

house then returned inside, and Harrison drove away.

     The officers decided to follow Harrison and after observing

him commit several moving traffic infractions, they stopped the

vehicle.    The vehicle was registered to William and Angela

Harrison.   After determining that Harrison's driver's license

was suspended, the officers arrested him for driving on a

suspended license and reckless driving.      An inventory search of

the vehicle disclosed a coffee straw, which contained heroin

residue, resting on the transmission hump beside the driver's

seat, debris scattered throughout the vehicle, and stolen

computer equipment on the rear seat. 1

                            II.   Analysis

     "Where the sufficiency of the evidence is challenged after

conviction, it is our duty to consider it in the light most

favorable to the Commonwealth and give it all reasonable


     1
       Harrison was also charged with receiving stolen property
and was acquitted of this offense.

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inferences fairly deducible therefrom.    We should affirm the

judgment unless it appears from the evidence that the judgment

is plainly wrong or without evidence to support it."

Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534,

537 (1975).

     The law applicable to the issue presented here is

summarized in Womack v. Commonwealth, 220 Va. 5, 255 S.E.2d 351

(1979).    Constructive possession may be shown by establishing

that the contraband was known, and subject to the dominion and

control of the accused.    Knowledge of the presence and character

of the controlled substance is required but such knowledge may

be shown by evidence of the acts, statements or conduct of the

accused.   Mere proximity to the controlled substance, however,

is insufficient to establish possession.     See id. at 7, 255

S.E.2d at 352.    Nevertheless, the possession need not be

exclusive.     See Ritter v. Commonwealth, 210 Va. 732, 741, 173

S.E.2d 799, 805-06 (1970).     See also Eckhart v. Commonwealth,

222 Va. 447, 450, 281 S.E.2d 853, 855 (1981).

             Suspicious circumstances, including
             proximity to a controlled drug, are
             insufficient to support a conviction. 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." Circumstantial
             evidence is sufficient to prove guilt beyond
             a reasonable doubt so long as "all necessary

                                 - 3 -
           circumstances proved . . . [are] consistent
           with guilt and inconsistent with innocence
           and must exclude every reasonable hypothesis
           of innocence." The Commonwealth "need not
           affirmatively disprove all theories which
           might negate the conclusion that the
           defendant . . . [possessed the heroin], but
           the conviction will be sustained if the
           evidence excludes every reasonable
           hypothesis of innocence."

McNair v. Commonwealth, 31 Va. App. 76, 86, 521 S.E.2d 303, 308

(1999) (en banc) (citations omitted).

     The Commonwealth suggests that Harrison appearing at a

residence where narcotic sales were suspected to occur and his

possession of stolen property were factors that indicate

Harrison is a drug user.   Assuming without deciding that such an

inference is reasonable, the Commonwealth failed to establish

that Harrison ever used the coffee straw to consume heroin or

was aware that it had been used by anyone else for such a

purpose.

     In summary, the evidence when viewed in the light most

favorable to the Commonwealth, established nothing more than

mere proximity to the coffee straw containing heroin residue and

fell short of removing every reasonable hypothesis consistent

with innocence.

                                           Reversed and dismissed.




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