                        COURT OF APPEALS OF VIRGINIA

Present: Judges Bray, Frank and Clements
Argued at Chesapeake, Virginia


NOEL JONES
                                           MEMORANDUM OPINION * BY
v.   Record No. 1991-00-1                   JUDGE RICHARD S. BRAY
                                              NOVEMBER 6, 2001
COMMONWEALTH OF VIRGINIA


         FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE
                      Bruce H. Kushner, Judge

             Monte E. Kuligowski for appellant.

             Jennifer R. Franklin, Assistant Attorney
             General (Randolph A. Beales, Attorney
             General, on brief), for appellee.


     Noel Jones (defendant) was convicted in a bench trial for

possession of cocaine, a violation of Code § 18.2-250.    On appeal,

he contends the evidence was insufficient to support the

conviction.    We agree and reverse the trial court.

     The parties are fully conversant with the record, and this

memorandum opinion recites only those facts necessary to a

disposition of the appeal.

     In reviewing the sufficiency of the evidence, we examine the

record in "the light most favorable to the Commonwealth, granting

to it all reasonable inferences fairly deducible therefrom."

Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
(1987).    The credibility of witnesses, the weight accorded

testimony, and the inferences to be drawn from proven facts are

matters to be determined by the fact finder.    See Long v.

Commonwealth, 8 Va. App. 194, 199, 379 S.E.2d 473, 476 (1989).

The judgment of a trial court will be disturbed on appeal only if

plainly wrong or unsupported by the evidence.   See Code

§ 8.01-680.

                                   I.

     The facts are substantially uncontroverted.    At approximately

4:00 a.m. on December 4, 1999, Chesapeake Police Officer B.W.

Shearin observed an automobile turn unlawfully "through a red

light."    Shearin activated his "emergency equipment" and stopped

the vehicle.    The driver and sole passenger, seated beside him,

identified themselves to Shearin as Omar Wilson and defendant,

respectively.

     Further investigation at the scene disclosed that Wilson was

"wanted for malicious wounding."    However, before Shearin could

effect an arrest, Wilson "began to drive off," with Shearin in

pursuit.   During the ensuing "high-speed chase," "through stop

signs and everything," Shearin observed "a baggy [sic]," followed

immediately by "a firearm," "come out of the passenger's side of

the vehicle."    Although the "area was lit," Shearin did not notice

Wilson "make any motions or gestures . . . toward anything but

driving the vehicle," "couldn't see hand movements from either

party," "just saw the items come out."   Defendant, however,

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testified he had "seen [Wilson] flinging something out the window"

after defendant had "rolled the window down a little bit" at

Wilson's request.

     Shearin, with the assistance of other police officers, soon

stopped the vehicle, and defendant "fled on foot . . . into the

woods," only to be apprehended within "a minute or so, two

minutes."   With both Wilson and defendant in custody, Shearin

returned to "the area where the first object was thrown out the

window" and recovered "a baggy [sic] of powdered substance," later

identified as 13.3 grams of cocaine, and a "Virginia Power bill

with the name Omar Wilson, right in the same vicinity, right

beside the . . . cocaine."   A search of defendant by Shearin

revealed "nothing," but Wilson possessed $1,850 in cash.      A search

of the car disclosed additional cocaine "under the hood." 1

                                 II.

                 To support a conviction based on
            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)

(quoting Powers v. Commonwealth, 227 Va. 474, 476, 316 S.E.2d 739,

740 (1984)).   "[T]he possession need not always be exclusive.    The


     1
       The instant record further discloses that Wilson
previously "pled guilty" to "these charges."


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defendant may share [the drugs] with one or more.   The duration of

the possession is immaterial and need not always be actual

possession."    Ritter v. Commonwealth, 210 Va. 732, 741, 173 S.E.2d

799, 806 (1970).    "Although mere proximity to the drugs is

insufficient to establish possession, and occupancy of [a] vehicle

does not give rise to a presumption of possession . . . both are

factors which may be considered in determining whether a defendant

possessed drugs."    Josephs v. Commonwealth, 10 Va. App. 87, 100,

390 S.E.2d 491, 498 (1990) (en banc).

     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)).   "The 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).    "Whether a hypothesis of innocence is

reasonable is a question of fact, and a finding by the trial court

is binding unless plainly wrong."   Glasco v. Commonwealth, 26

Va. App. 763, 774, 497 S.E.2d 150, 155 (1998) (citation omitted).

     Here, defendant was the passenger in the vehicle operated by

another, Wilson, when Wilson fled from police immediately

following a lawful stop.   During the chase, drugs, a weapon, and a

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"bill" personal to Wilson were discarded from the passenger

window, although no attendant "hand movements from either party"

were observed by Officer Shearin.    Once the car was again stopped

by police, defendant fled but was immediately apprehended and

returned to the scene.    No drugs, related paraphernalia or other

contraband were found on defendant's person, but Wilson possessed

considerable cash, and additional cocaine was secreted outside the

passenger compartment of the vehicle.

        Thus, in support of the instant conviction, the evidence

proved little more than defendant was present in an automobile

controlled by Wilson and fled from police following the second

stop.    While defendant admittedly lowered the window at Wilson's

direction, the evidence does not establish he was aware Wilson

intended to toss cocaine and a firearm from the speeding vehicle.

No drugs were found on defendant's person, but additional

contraband was hidden "under the hood" of the car, in Wilson's

control.    Such evidence clearly supports the reasonable hypothesis

that the offending cocaine belonged exclusively to Wilson and was

present in the automobile without defendant's knowledge and free

of his dominion and control.

        Accordingly, the evidence was insufficient to prove defendant

guilty of the subject offense beyond a reasonable doubt, and we

reverse the conviction.

                                         Reversed and dismissed.



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