                   COURT OF APPEALS OF VIRGINIA


Present: Judges Willis, Annunziata and Senior Judge Cole
Argued at Richmond, Virginia


GEORGE A. HUGHES
                                      MEMORANDUM OPINION * BY
v.        Record No. 0111-95-2     JUDGE JERE M. H. WILLIS, JR.
                                         JANUARY 23, 1996
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF MECKLENBURG COUNTY
                    William L. Wellons, Judge
          Nora J. Miller, Assistant Public Defender
          (Office of the Public Defender, on brief),
          for appellant.

          John K. Byrum, Jr., Assistant Attorney
          General (James S. Gilmore, III, Attorney
          General; Katherine P. Baldwin, Assistant
          Attorney General, on brief), for appellee.



     On appeal from a conviction of possession of a knife while a

prisoner in a correctional facility, in violation of Code

§ 53.1-203(4), George A. Hughes contends the evidence is

insufficient to prove that he possessed the knife.   We agree and

reverse the judgment of the trial court.

     On July 23, 1993, Hughes, a prisoner at Mecklenburg

Correctional Center, was placed into cell 36 in building 5.    No

search of the cell was performed on that day.

     On January 26, 1994, a "shake-down" of Hughes' cell was

conducted and a homemade knife was discovered near the toilet,

hidden behind a small section of false wall constructed of

     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
cardboard and painted to blend in with the wall.    The

correctional officer who discovered the knife tapped the wall

with his baton and saw it move.   He testified, "[i]f I hadn't hit

it I wouldn't have seen it."

     The cell was searched on August 10, 1993.     At that time,

neither the knife nor the section of false wall was discovered.

However, the techniques employed in that search were not

described.    There was no evidence that the wall, or the

particular place on the wall, was tapped or that tapping the wall

was a routine element of a "shake-down."
     On appeal, we view the evidence in the light most favorable

to the Commonwealth, granting to it all reasonable inferences

fairly deducible therefrom.    Higginbotham v. Commonwealth, 216

Va. 349, 352, 218 S.E.2d 534, 537 (1975).   When a conviction is

based on circumstantial evidence, "all necessary circumstances

proved must be consistent with guilt and inconsistent with

innocence."    Inge v. Commonwealth, 217 Va. 360, 366, 228 S.E.2d

563, 567 (1976).

     Hughes contends that the evidence is insufficient to prove

that he possessed the knife.   The burden was on the Commonwealth

to prove beyond a reasonable doubt that Hughes was "consciously

in physical or constructive possession" of the knife.       Wright v.

Commonwealth, 217 Va. 669, 670, 232 S.E.2d 733, 734 (1977).

Constructive possession may be proved by "evidence of acts,

statements, or conduct of the accused or other facts or



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circumstances which tend to show that the defendant was aware of

both the presence and character of the [item] 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 knife was not discovered in Hughes' physical possession.

The Commonwealth contends that the evidence sufficiently proves

his constructive possession.   It argues that the fact that the

knife was not discovered at the August 10, 1993 search but was

found on January 26, 1994, supports the inference that Hughes

concealed the knife behind the false wall during the interim.      We

disagree.    The knife could have been concealed by a prior

occupant of the cell.    The fact that the knife was not discovered

during the August search does not preclude a finding that it

could have been behind the false wall at that time.    The officer

who found the knife testified that he would not have found the

knife had he had not tapped the particular spot on the wall with

his baton.   The officer who searched the cell in August may not

have tapped this spot.
     The judgment of the trial court is reversed.
                                                Reversed.




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