                   COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Willis and Annunziata
Argued at Richmond, Virginia


ROBERT WESLEY DEANS, JR.
                                      MEMORANDUM OPINION * BY
v.   Record No. 1881-96-2           JUDGE ROSEMARIE ANNUNZIATA
                                         FEBRUARY 24, 1998
COMMONWEALTH OF VIRGINIA


           FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
                    Herbert C. Gill, Jr., Judge
           John H. Click, Jr. (White, Blackburn & Conte,
           P.C., on brief), for appellant.

           Daniel J. Munroe, Assistant Attorney General
           (Richard Cullen, Attorney General, on brief),
           for appellee.



      Robert Wesley Deans, Jr. (appellant) appeals his conviction

for possession of marijuana in a county jail on the basis that

the evidence presented at trial was insufficient to prove his

guilt beyond a reasonable doubt.   We agree and reverse his

conviction.

      On October 28, 1995, Chesterfield County deputies conducted

a search of the Chesterfield County Jail dormitory in which

appellant was housed.   The deputies ordered the inmates into the

center of the room and then removed them from the dorm.

Appellant occupied the bottom bunk of a bunk bed.   Deputy Brian

Michaels, the Commonwealth's only witness, searched appellant's

bed and the area surrounding the bed.   Underneath appellant's bed

      *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
were two jail-issued plastic tubs which inmates used to store

their personal belongings.   In one of the tubs, Michaels

discovered two paper bags, one of which contained plastic bags of

tortilla and potato chips.

     Michaels checked each of the plastic bags of chips, and

noticed that one of the bags had been resealed with a black putty

substance and that it contained two balloons.   Michaels opened

the balloons; he believed that one balloon contained marijuana

and that the other balloon contained a mixture of tobacco and

marijuana.    Michaels testified that he returned the paper bags to

the plastic tub.    Deputy Cardelino testified, however, that the

bags and contents of both inmates' plastic tubs were placed on

the bunk bed.   When the inmates returned to the dorm, Michaels

told appellant and the occupant of the top bunk to gather their

personal belongings.   Appellant gathered his possessions, and

picked up the paper bag which contained the altered chip bag.

Michaels then left the room.   Subsequent testing confirmed that

each of the balloons contained marijuana.
     At trial, appellant presented the testimony of another

inmate, James Davis, who testified that he, appellant, and a

third inmate routinely kept items in the same bags to avoid theft

by other inmates.   Davis testified that the marijuana was his and

that he had pled guilty to its possession.   He testified that he

had placed the marijuana in the paper bag earlier in the day of

the search.   The Commonwealth impeached Davis as a convicted




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felon on cross-examination.

     On appeal, this Court reviews the evidence "'in the light

most favorable to the Commonwealth and accord to the evidence all

reasonable inferences fairly deducible therefrom.'"      Phoung v.

Commonwealth, 15 Va. App. 457, 460, 424 S.E.2d 712, 714 (1992)

(quoting Traverso v. Commonwealth, 6 Va. App. 172, 176, 366

S.E.2d 719, 721 (1988)).   A jury's verdict "shall not be set

aside unless it appears from the evidence that such judgment is

plainly wrong or without evidence to support it."   Code

§ 8.01-680; Phoung, 15 Va. App. at 460, 424 S.E.2d at 714
(quoting Traverso, 6 Va. App. at 176, 366 S.E.2d at 721).     The

credibility of witnesses, the weight accorded the testimony of

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

questions within the province of the jury.   Spivey v.

Commonwealth, 23 Va. App. 715, 724, 479 S.E.2d 543, 548 (1997)

(citing Long v. Commonwealth, 8 Va. App. 194, 199, 379 S.E.2d

473, 476 (1989)).

     Possession of a controlled substance may be either actual or

constructive.   McGee v. Commonwealth, 4 Va. App. 317, 322, 357

S.E.2d 738, 740 (1987) (citing Archer v. Commonwealth, 225 Va.

416, 418, 303 S.E.2d 863, 863 (1983)).   To support a conviction

for constructive possession on appeal, "the Commonwealth must

point to evidence of acts, statements, or conduct of the accused

or other facts and circumstances which tend to show that the

defendant was aware of both the presence and character of the




                                 3
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) (citing Eckhart v. Commonwealth, 222 Va. 447, 450, 281

S.E.2d 853, 855 (1981)).   The Commonwealth may show possession of

the controlled substance through circumstantial evidence provided

the evidence "excludes every reasonable hypothesis of innocence."

 Spivey, 23 Va. App. at 724, 479 S.E.2d at 548 (citing, inter

alia, Tucker v. Commonwealth, 18 Va. App. 141, 143, 442 S.E.2d

419, 420 (1994)).
     The Commonwealth, relying upon the theory of constructive

possession, points to three pieces of evidence in support of

appellant's knowledge of the marijuana.

     First, the Commonwealth points to the fact that, when told

to gather his belongings, appellant took the paper bag containing

the marijuana enclosed in the plastic chip bag.   This evidence

does not demonstrate, however, that appellant knew of the

"presence and character" of the marijuana which the bag had

contained.   Appellant's knowing possession of the paper bag does

not establish that he knew that the paper bag contained the chip

bag in question, much less that the chip bag contained marijuana.

     Second, the Commonwealth argues that the proximity of the

marijuana to appellant's bunk supports the conclusion that he

knowingly possessed the controlled substance.   "While proximity

to a controlled substance is insufficient alone to establish

possession, it is a factor to consider when determining whether



                                 4
the accused constructively possessed drugs."    Brown v.

Commonwealth, 15 Va. App. 1, 9, 421 S.E.2d 877, 882 (1992) (en

banc) (citing Lane v. Commonwealth, 223 Va. 713, 716, 292 S.E.2d

358, 360 (1982)).   Thus, the proximity of the marijuana to

appellant's bunk is some, but not sufficient, evidence of his

knowledge of the contraband.

     Finally, the Commonwealth contends that the evidence was

sufficient to convict appellant because Davis' testimony was not

credible, and the jury could choose to disregard it.   Davis

testified that he, appellant, and a third inmate kept their chips

in a single paper bag to avoid theft by other inmates.     Davis

further testified that he had placed the chip bag containing

marijuana in the paper bag earlier that day.   Davis was impeached

as a convicted felon.    See, e.g., Doss v. Commonwealth, 23 Va.

App. 679, 685, 479 S.E.2d 92, 95 (1996).   Assuming without

deciding that the jury concluded that Davis lied to conceal

appellant's guilt, see Speight v. Commonwealth, 4 Va. App. 83,

88, 354 S.E.2d 95, 98 (1987) (en banc) (citing Carter v.
Commonwealth, 223 Va. 528, 532, 290 S.E.2d 865, 867 (1982)), that

credibility determination is not sufficient to exclude the

reasonable hypothesis that appellant had no knowledge of the

contraband concealed in the bag he picked up when directed to

gather his belongings.    See Stover v. Commonwealth, 222 Va. 618,

624, 283 S.E.2d 194, 196 (1981); Tucker, 18 Va. App. at 144, 442

S.E.2d at 421.



                                  5
     Accordingly, we find the evidence insufficient to sustain

the appellant's conviction beyond a reasonable doubt and reverse.

See, e.g., Burchette v. Commonwealth, 15 Va. App. 432, 435-36,

425 S.E.2d 81, 84 (1992); Hairston v. Commonwealth, 5 Va. App.

183, 186-87, 360 S.E.2d 893, 895 (1987).

                                           Reversed and dismissed.




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