                   COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Moon, Judges Willis and Elder
Argued at Richmond, Virginia


CHARLES LEE BRITT, JR.
                                        MEMORANDUM OPINION * BY
v.   Record No. 1975-96-1             JUDGE JERE M. H. WILLIS, JR.
                                           NOVEMBER 4, 1997
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
                   William F. Rutherford, Judge
          William P. Robinson, Jr. (Robinson, Banks &
          Anderson, on brief), for appellant.

          Eugene Murphy, Assistant Attorney General
          (James S. Gilmore, III, Attorney General, on
          brief), for appellee.



     On appeal from his conviction for possession of cocaine with

intent to distribute, Charles Lee Britt, Jr. contends:    (1) that

the evidence is insufficient to support his conviction, (2) that

the trial court erred in excluding a witness' prior inconsistent

statement, and (3) that the trial court erred in admitting an

oral statement.   Because the evidence is insufficient, we reverse

Britt's conviction.   We need not address the other assigned

errors.

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

favorable to the Commonwealth, granting to it all reasonable

inferences fairly deducible therefrom.   The jury's verdict will

not be disturbed on appeal unless it is plainly wrong or without

     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
evidence to support it."     Maynard v. Commonwealth, 11 Va. App.

437, 439, 399 S.E.2d 635, 637 (1990) (en banc) (citations

omitted).

       On May 16, 1995, Officer Michael J. Reardon received

information regarding possible drug activity at 850 Charlotte

Street in Norfolk.   Upon arriving in the area, he observed Britt

and another man in front of 829 Charlotte Street, which is

directly across the street from 850.
       At the rear of 850 Charlotte Street, Reardon found a pouch

behind a trash receptacle.    Inside the pouch were five plastic

sandwich baggies, stuffed within each other, containing sixteen

small plastic wrappings of crack cocaine.       Examination revealed

Britt's thumbprint on one of the baggies.       While searching,

Reardon saw Britt go inside 829 Charlotte Street.

       On May 17, 1995, Reardon returned to arrest Britt's brother

and saw Britt standing in front of 829 Charlotte Street.       Upon

seeing Reardon, Britt left.    On August 2, 1995, Reardon returned

to arrest Britt and found him standing in front of 829 Charlotte

Street.   Britt, who had a pouch in his hand, quickly went inside

829.   Another man prevented Reardon from following Britt into

829.   Soon after, Britt came out.       He stated that "he never

frequented 829 Charlotte Street before."

       To establish the charge of possession of cocaine with intent

to distribute, the Commonwealth was required to prove beyond a

reasonable doubt that Britt "'intentionally and consciously



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possessed' the drug, either actually or constructively, with

knowledge of its nature and character, together with the intent

to distribute it."    Wilkins v. Commonwealth, 18 Va. App. 293,

298, 443 S.E.2d 440, 444 (1994) (en banc) (citation omitted).

     Viewed in the light most favorable to the Commonwealth, the

evidence provides no proof that Britt actually possessed the

cocaine.    Thus, the issue before us is whether Britt

constructively possessed the cocaine.      In proving 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 accused was aware of

both the presence and the character of the substance and that it

was subject to his dominion and control."       Powers v.

Commonwealth, 227 Va. 474, 476, 316 S.E.2d 739, 740 (1984).      The

Commonwealth argues that Britt's thumbprint on the baggie and his

presence near the pouch proves that he possessed the drugs.      We

disagree.

     "'[M]ere proximity to a controlled drug is not sufficient to

establish dominion and control.'"       Johnson v. Commonwealth, 12

Va. App. 150, 151, 402 S.E.2d 502, 503 (1991) (quoting Drew v.

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

While "proximity" constitutes relevant circumstantial evidence in

proving constructive possession, Brown v. Commonwealth, 15 Va.

App. 1, 9, 421 S.E.2d 877, 882 (1992) (en banc), the cocaine in

this case was found beside a garbage can, adjacent to a public



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thoroughfare, behind a house across the street from where Britt

was standing.   No evidence placed Britt near this spot.   See

Gordon v. Commonwealth, 212 Va. 298, 300-01, 183 S.E.2d 735, 737

(1971) (finding gap in circumstantial evidence tying narcotics

found in public place to defendant).   Cf. Behrens v.

Commonwealth, 3 Va. App. 131, 135, 348 S.E.2d 430, 432 (1986)

("[P]roof that contraband was found in premises . . . occupied by

the defendant is insufficient, standing alone, to prove

constructive possession.").
     The presence of Britt's thumbprint on one of the sandwich

baggies does not, by itself, establish possession.   As the

Commonwealth correctly notes "a fingerprint is actually 'an

unforgeable signature.'"   Turner v. Commonwealth, 218 Va. 141,

146, 235 S.E.2d 357, 360 (1977) (quoting Avent v. Commonwealth,

209 Va. 474, 478, 164 S.E.2d 655, 658 (1968)).   Indeed, in

determining criminal agency:

          "A latent fingerprint found at the scene of
          the crime . . . tends to show that [the
          accused] was at the scene of the crime."
          However, only if the circumstances regarding
          the fingerprint show that the accused was at
          the scene of the crime at the time the crime
          was committed, may one rationally infer that
          the accused committed the crime.

Varker v. Commonwealth, 14 Va. App. 445, 447, 417 S.E.2d 7, 9

(1992) (quoting Avent, 209 Va. at 479-80, 164 S.E.2d at 659).

     The most that the thumbprint proves is that Britt touched

the baggie at some time prior to its discovery in the pouch.     No



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evidence discloses when Britt touched the baggie, where he

touched it, or whether he did so when it contained the cocaine.

Cf. Burchette v. Commonwealth, 15 Va. App. 432, 437, 425 S.E.2d

81, 85 (1992) (noting that presence of defendant's personal

possessions in his vehicle not evidence of possession of drugs

found in vehicle).   Thus, the evidence did not exclude the

reasonable hypothesis that Britt may have touched the baggie for

some innocent reason.   See Granger v. Commonwealth, 20 Va. App.

576, 577, 459 S.E.2d 106, 106 (1995) (defendant's fingerprints on

liquor bottle used in robbery insufficient evidence).
     Although Britt's statement that he did not "frequent" 829

Charlotte Street permitted the inference that he was lying, the

Commonwealth nonetheless must prove each element of the offense

beyond a reasonable doubt.   Martin v. Commonwealth, 13 Va. App.

524, 529, 414 S.E.2d 401, 403 (1992) (en banc).   Although Britt's

statement that he did not "frequent" 829 Charlotte Street, his

presence across the street from the contraband and his thumbprint

on the sandwich baggie were suspicious circumstances, these

circumstances are insufficient to support his conviction.     See

Burchette, 15 Va. App. at 438-39, 425 S.E.2d at 86; Behrens, 3

Va. App. at 135, 348 S.E.2d at 432.

     The judgment of the trial court is reversed, and the

indictment is ordered dismissed.

                                         Reversed and dismissed.




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