                   COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Fitzpatrick, Judges Elder and Bray
Argued at Chesapeake, Virginia


TERRANCE LESTER KINDRED, JR., S/K/A
 TERRENCE LESTER KINDRED, JR.
                                     MEMORANDUM OPINION * BY
v.   Record No. 1182-99-1       CHIEF JUDGE JOHANNA L. FITZPATRICK
                                          MARCH 7, 2000
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
                    Wilford Taylor, Jr., Judge

          J. Ashton Wray, Jr., for appellant.

          Stephen R. McCullough, Assistant Attorney
          General (Mark L. Earley, Attorney General, on
          brief), for appellee.


     Terrence Lester Kindred, Jr. (appellant) was convicted in a

bench trial of possession with intent to distribute cocaine, in

violation of Code § 18.2-248.    The sole issue raised on appeal

is whether the evidence was sufficient to establish that

appellant constructively possessed the cocaine.    Finding the

evidence insufficient, we reverse.

                                 I.

     When the sufficiency of the evidence is challenged on

appeal, we determine whether the evidence, viewed in the light

most favorable to the prevailing party, the Commonwealth, and


     *
       Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
the reasonable inferences fairly deducible from that evidence

support each and every element of the charged offense.    See

Moore v. Commonwealth, 254 Va. 184, 186, 491 S.E.2d 739, 740

(1997); Derr v. Commonwealth, 242 Va. 413, 424, 410 S.E.2d 662,

668 (1991).   "In so doing, we must discard the evidence of the

accused in conflict with that of the Commonwealth, and regard as

true all the credible evidence favorable to the Commonwealth and

all fair inferences that may be drawn therefrom."    Watkins v.

Commonwealth, 26 Va. App. 335, 349, 494 S.E.2d 859, 866 (1998).

"We will not reverse the judgment of the trial court, sitting as

the finder of fact in a bench trial, unless it is plainly wrong

or without evidence to support it."    Reynolds v. Commonwealth,

30 Va. App. 153, 163, 515 S.E.2d 808, 813 (1999) (citing Martin

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

(1987)).

     Viewed in this light, the evidence established that on

April 12, 1998, at approximately 4:30 a.m., Officer Daniel

Jackson found appellant asleep in the driver's seat of a running

car that was stopped at an intersection.   Appellant was the sole

occupant of the car.   He had a pager and a cellular phone in his

lap and $140 in cash in his pocket.    The money was in small

denominations--five one dollar bills, one five dollar bill, one

ten dollar bill, and six twenty dollar bills.   No smoking device

was recovered from the car or appellant's person.   Jackson

arrested appellant for driving under the influence of alcohol.

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In an inventory search of the car, Jackson found a clear plastic

bag containing 8.949 grams of crack cocaine between the driver's

side sun visor and the roof of the car.   Jackson testified that

he could not see the cocaine and only part of the plastic bag

was visible.

     The car was registered to appellant's girlfriend.    No

evidence established that appellant drove the car on a regular

basis or whether he had ever driven it before.    Appellant denied

knowledge of the presence of the cocaine in the car and at the

time of his arrest told Jackson that he was going to use the

cash to buy his daughter an Easter dress.

     To establish possession of a controlled substance, the

Commonwealth must prove that "'the defendant was aware of the

presence and character of the particular substance and was

intentionally and consciously in possession of it.'"     McNair v.

Commonwealth, 31 Va. App. 76, 85-86, 521 S.E.2d 303, 308 (1999)

(en banc) (quoting Gillis v. Commonwealth, 215 Va. 298, 301, 208

S.E.2d 768, 771 (1974)).   However, "[c]onstructive possession

may be proved through evidence demonstrating 'that the accused

was aware of both the presence and character of the substance

and that it was subject to his or her dominion and control.'"

Id. at 86, 521 S.E.2d at 308 (quoting Wymer v. Commonwealth, 12

Va. App. 294, 300, 403 S.E.2d 702, 706 (1991)).   "Knowledge of

the presence and character of the controlled substance may be

shown by evidence of the acts, statements or conduct of the

                               - 3 -
accused."     Eckhart v. Commonwealth, 222 Va. 447, 450, 281 S.E.2d

853, 855 (1981); see Glasco v. Commonwealth, 26 Va. App. 763,

774, 497 S.E.2d 150, 155 (1998).

     Proof by circumstantial evidence "'is not sufficient . . .

if it engenders only a suspicion or even a probability of guilt.

Conviction cannot rest upon conjecture.'"     Littlejohn v.

Commonwealth, 24 Va. App. 401, 414, 482 S.E.2d 853, 859 (1997)

(quoting Hyde v. Commonwealth, 217 Va. 950, 955, 234 S.E.2d 74,

78 (1977)).    "'"[A]ll necessary circumstances proved must be

consistent with guilt and inconsistent with innocence and

exclude every reasonable hypothesis of innocence."'"     Betancourt

v. Commonwealth, 26 Va. App. 363, 373, 494 S.E.2d 873, 878

(1998) (quoting Stover v. Commonwealth, 222 Va. 618, 623, 283

S.E.2d 194, 196 (1981) (quoting Inge v. Commonwealth, 217 Va.

360, 366, 228 S.E.2d 563, 567 (1976))).    "When, from the

circumstantial evidence, 'it is just as likely, if not more

likely,' that a 'reasonable hypothesis of innocence' explains

the accused's conduct, the evidence cannot be said to rise to

the level of proof beyond a reasonable doubt."     Littlejohn, 24

Va. App. at 414, 482 S.E.2d at 859 (quoting Haywood v.

Commonwealth, 20 Va. App. 562, 567-68, 458 S.E.2d 606, 609

(1995)).    The Commonwealth need not "exclude every possible

theory or surmise," but it must exclude those hypotheses "which

flow from the evidence itself."     Cantrell v. Commonwealth, 7 Va.



                                 - 4 -
App. 269, 289-90, 373 S.E.2d 328, 338-39 (1988) (citations

omitted).

     In the instant case, the Commonwealth's evidence failed to

prove acts or conduct from which the trial court could infer

beyond a reasonable doubt that appellant knowingly and

intentionally possessed the cocaine found behind the sun visor

of the car.     When Jackson first approached the car, he found

appellant sleeping at the wheel.    After waking appellant and

upon further investigation, the officer learned that the car was

not registered to appellant and he later found out that it

belonged to appellant's girlfriend.      Appellant denied any

knowledge of the presence of the cocaine, and Jackson admitted

on cross-examination that appellant did not make "any gestures"

to indicate that "he knew [the cocaine] was there."     Appellant's

mere proximity to the cocaine found in the visor is not

sufficient to prove his possession of the controlled substance.

See Walton v. Commonwealth, 255 Va. 422, 426, 497 S.E.2d 869,

872 (1998). 1


     1
       The cases cited by the Commonwealth are factually
distinguishable. For example, in Glasco, 26 Va. App. at 774, 497
S.E.2d at 155, although the car in which drugs were found did not
belong to the defendant, the arresting officer had seen the
defendant driving it on previous occasions. Likewise, in Brown v.
Commonwealth, 15 Va. App. 1, 9, 421 S.E.2d 877, 882 (1992), while
the car in which drugs were found was registered to another
individual, the defendant drove the car to a known drug area, got
out and later returned from an "area where other drug related
arrests had been made that night."
     In other cases cited by the Commonwealth, there was some
other act or statement by the defendant. See Logan v.

                                 - 5 -
     Additionally, the cellular phone and pager found in

appellant's lap when the officer approached the car did not tie

him to the drugs found behind the visor.    "It does not follow

. . . that because police officers know that drug dealers

frequently own guns, cellular telephones, or beepers, [that the

defendant] was a drug dealer and, therefore, he knowingly

possessed the [cocaine] found in . . . the parked vehicle."

Burchette v. Commonwealth, 15 Va. App. 432, 437, 425 S.E.2d 81,

85 (1992) (emphasis added).   "In essence, the Commonwealth asks

us to hold that since most drug dealers carry [cellular phones

and beepers], most people who carry [cellular phones and

beepers] are drug dealers.    We reject this hypothesis."   Id.

     Viewed as a whole, the circumstantial factors here are

suspicious, but they do not prove beyond a reasonable doubt that

appellant constructively possessed the cocaine found in the

visor of the car.   For the foregoing reasons, we reverse and

dismiss the conviction.

                                           Reversed and dismissed.




Commonwealth, 19 Va. App. 437, 444-45, 452 S.E.2d 364, 369 (1994)
(defendant never disputed that the car was his in answering the
Commonwealth's questions); Jetter v. Commonwealth, 17 Va. App.
745, 747, 440 S.E.2d 633, 634 (1994) (defendant was sole owner of
the car and had the keys in his bedroom); Hamilton v.
Commonwealth, 16 Va. App. 751, 754, 433 S.E.2d 27, 28-29 (1993)
(although defendant initially denied ownership of the drugs, she
later told the officer she had a drug problem and stated that she
would not return to the area if the officer "let her go").

                                - 6 -
