                  COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Willis and Clements
Argued at Salem, Virginia


JOHN TREVOR VILACHA
                                         MEMORANDUM OPINION * BY
v.   Record No. 0679-01-3             JUDGE JEAN HARRISON CLEMENTS
                                              APRIL 30, 2002
COMMONWEALTH OF VIRGINIA


            FROM THE CIRCUIT COURT OF BUCHANAN COUNTY
                    Keary R. Williams, Judge

          Henry A. Barringer for appellant.

          Eugene Murphy, Assistant Attorney General
          (Randolph A. Beales, Attorney General, on
          brief), for appellee.


     John Trevor Vilacha was convicted in a bench trial of

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

appeal, he contends (1) the evidence was insufficient, as a matter

of law, to prove beyond a reasonable doubt that he constructively

possessed the cocaine in the straw found by the police on the

floor of the pickup truck in which he was a passenger and (2) the

trial court erred in admitting into evidence a codefendant's

out-of-court statement implicating him because it violated his

Sixth Amendment right of confrontation.   Finding the evidence

insufficient to convict Vilacha, we reverse the conviction.



     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
       As the parties are fully conversant with the record in this

case and because this memorandum opinion carries no precedential

value, this opinion recites only those facts and other incidents

of the proceedings as necessary to the parties' understanding of

the disposition of this appeal.

       When the sufficiency of the evidence is challenged on appeal,

we review the evidence "in the light most favorable to the

Commonwealth, granting to it all reasonable inferences fairly

deducible therefrom."   Bright v. Commonwealth, 4 Va. App. 248,

250, 356 S.E.2d 443, 444 (1997).   We are further mindful that the

"credibility of a witness, the weight accorded the testimony, and

the inferences to be drawn from proven facts are matters solely

for the fact finder's determination."    Crawley v. Commonwealth, 29

Va. App. 372, 375, 512 S.E.2d 169, 170 (1999).   We will not

disturb the conviction unless it is plainly wrong or unsupported

by the evidence.   Sutphin v. Commonwealth, 1 Va. App. 241, 243,

337 S.E.2d 897, 898 (1985).

       "In order to convict a person of illegal possession of an

illicit drug, the Commonwealth must prove beyond a reasonable

doubt that the accused was aware of the presence and character of

the drug and that the accused consciously possessed it."   Walton

v. Commonwealth, 255 Va. 422, 426, 497 S.E.2d 869, 871 (1998).

However, "proof of actual possession is not required; proof of

constructive possession will suffice."    Id. at 426, 497 S.E.2d at

872.   "To support a conviction based upon constructive possession,

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'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

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)).    Because "[p]roof of constructive

possession necessarily rests on circumstantial evidence[,] . . .

'"all necessary circumstances proved must be consistent with

guilt and inconsistent with innocence and exclude every

reasonable hypothesis of innocence."'"    Burchette v.

Commonwealth, 15 Va. App. 432, 434, 425 S.E.2d 81, 83 (1992)

(quoting Garland v. Commonwealth, 225 Va. 182, 184, 300 S.E.2d

783, 784 (1983) (quoting Carter v. Commonwealth, 223 Va. 528,

532, 290 S.E.2d 865, 867 (1982))).

     Here, viewed in the light most favorable to the Commonwealth,

the evidence establishes that, when Trooper Anthony Skeens pulled

over the pickup truck being driven by Scotty McBride, Vilacha was

sitting next to the window on the passenger side of the truck and

Wade Price was sitting in the middle between Vilacha and McBride.

After the occupants exited the truck, Skeens recovered a pill

bottle and part of a white pill with "Vicodin ES" inscribed on it

from the truck's bench seat between where McBride and Price had

been sitting.    Laboratory testing later confirmed that the pill



                                - 3 -
was Vicodin, a Schedule III narcotic. 1   Skeens also recovered a

plastic straw from the front passenger-side floor of the truck,

near the transmission hump.   The straw, which was found lying "in

some trash," had "white-powder residue caked inside" it.     The

substance in the straw was later identified through laboratory

analysis as cocaine.

     Vilacha, McBride, and Price were placed under arrest and

transported to the jail.   At the jail, Skeens observed

white-powder residue inside Vilacha's right nostril.    That

residue, however, was not analyzed or identified.

     While at the jail, Skeens confronted Vilacha, McBride, and

Price with the pill bottle, the Vicodin pill, and the straw, but

all three denied ownership.   Later, Skeens advised Price that he

was being charged with, among other things, "possession of a

controlled substance."   That charge, according to Skeens, was

based solely on the Vicodin pill found in the truck.    McBride, who

was within earshot of Skeens' conversation with Price, said that

"the drugs in the truck was [sic] not Wade's.    They were his and

Trevor's."   Vilacha was not present during that exchange.

     The Commonwealth contends that Vilacha's proximity in the

truck to the cocaine, the presence of white-powder residue in

Vilacha's right nostril, and the statement by McBride that "the


     1
       Vilacha was also tried, and acquitted, in these same
proceedings before the trial court of a misdemeanor charge of
possessing a Schedule III controlled substance, namely Vicodin.


                               - 4 -
drugs in the truck . . . were his and [Vilacha's]" prove Vilacha

was aware of the presence and character of the cocaine and that it

was subject to his dominion and control.

     Clearly, the evidence shows that the cocaine was found

relatively near to where Vilacha was sitting in the truck.    "An

accused's mere proximity to an illicit drug, however, is not

sufficient to prove possession."   Walton, 255 Va. at 426, 497

S.E.2d at 872.   Furthermore, "[p]roof that the [illicit drug] was

found in . . . a vehicle . . . occupied by the [accused] is

insufficient, standing alone, to prove constructive possession."

Powers, 227 Va. at 476, 316 S.E.2d at 740.   Thus, while such

circumstances may be considered in determining whether Vilacha

possessed the cocaine, the evidence of Vilacha's mere occupancy of

the truck and proximity to the cocaine in the truck is not

sufficient by itself to prove he constructively possessed the

cocaine.

     Turning to the Commonwealth's remaining evidence, we find it

void of any facts or circumstances that prove beyond a reasonable

doubt that Vilacha was aware of the presence and character of the

cocaine and that it was subject to his dominion and control.

Although Trooper Skeens observed the presence of white-powder

residue in Vilacha's right nostril, no evidence negated the

reasonable hypothesis that the residue resulted from Vilacha

having crushed and snorted that part of the white Vicodin pill

that was missing.   Indeed, Skeens himself testified that, when he

                               - 5 -
saw the straw in the truck, he assumed the missing part of the

Vicodin pill had been crushed.    The residue was never tested or

identified.   Thus, no evidence connected the white-powder residue

observed in Vilacha's nostril to the cocaine found in the truck.

     Additionally, assuming, without deciding, for purposes of

this analysis, that McBride's statement that "the drugs in the

truck . . . were his and [Vilacha's]" was properly admitted into

evidence, nothing about that statement, or the context in which it

was made, suggests that it referred to anything other than the

Vicodin found in the truck.   McBride made the statement after

overhearing Skeens tell Price that he was being charged with

possession of a controlled substance, a misdemeanor charge, in

this instance, based solely on the Vicodin pill Skeens found in

the truck.    In fact, Skeens was not even aware at the time that

the substance in the straw was cocaine, and nothing in the record

indicates that he or any other officer mentioned that possibility

to any of the accused before McBride made the statement.   Thus,

given its lack of specificity and the context in which it was

made, McBride's statement failed to establish a connection between

Vilacha and the later-identified cocaine.

     We conclude, therefore, that the Commonwealth's evidence in

this case creates, at most, only a strong suspicion that Vilacha

was aware of the presence and character of the cocaine and that it

was subject to his dominion and control.    "Suspicion, however, no

matter how strong is insufficient to sustain a criminal

                                 - 6 -
conviction."    Stover v. Commonwealth, 222 Va. 618, 624, 283 S.E.2d

194, 197 (1981).   Thus, the evidence in this case fails to prove

beyond a reasonable doubt that Vilacha constructively possessed

the cocaine.    Consequently, we hold that the evidence is

insufficient, as a matter of law, to sustain Vilacha's conviction.

     Accordingly, we reverse Vilacha's conviction and dismiss the

indictment. 2

                                          Reversed and dismissed.




     2
       Because we reverse Vilacha's conviction on the basis of
insufficient evidence, we do not address his second assignment
of error.

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