                   COURT OF APPEALS OF VIRGINIA

Present:  Judge Elder, Senior Judge Duff and
          Retired Judge Plummer *
Argued at Alexandria, Virginia


JIMMIE MCAURTHER WRIGHT
                                            MEMORANDUM OPINION** BY
v.   Record No. 1780-96-4                    JUDGE LARRY G. ELDER
                                              NOVEMBER 25, 1997
COMMONWEALTH OF VIRGINIA


             FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
                      Stanley P. Klein, Judge
           Mark Petrovich (Martin, Arif & Petrovich, on
           brief), for appellant.

           Leah A. Darron, Assistant Attorney General
           (Richard Cullen, Attorney General, on brief),
           for appellee.



     Jimmie McAurther Wright (appellant) appeals his conviction

of possession of cocaine with intent to distribute in violation

of Code § 18.2-248.   He contends that the evidence was

insufficient to support his conviction. 1    For the reasons that

follow, we reverse and remand.

     When considering the sufficiency of the evidence on appeal

in a criminal case, this Court views the evidence in a light most
     *
      Retired Judge William G. Plummer took part in the
consideration of this case by designation pursuant to Code
§ 17-116.01.
     **
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.

     1
      At trial, the trial court ruled that appellant waived his
motion to strike by presenting evidence during the Commonwealth's
case-in-chief. We do not address the merits of this ruling
because the Commonwealth concedes that appellant preserved for
appeal his challenge of the sufficiency of the evidence.
favorable to the Commonwealth, granting to it all reasonable

inferences fairly deducible therefrom.    See Higginbotham v.

Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975).      On

review, this Court does not substitute its own judgment for that

of the trier of fact.    See Cable v. Commonwealth, 243 Va. 236,

239, 415 S.E.2d 218, 220 (1992).   The trial court's judgment will

not be set aside unless it appears that the judgment is plainly

wrong or without supporting evidence.    See Martin v.
Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987).

     "Circumstantial evidence is as competent and is entitled to

as much weight as direct evidence, provided it is sufficiently

convincing to exclude every reasonable hypothesis except that of

guilt."    Coleman v. Commonwealth, 226 Va. 31, 53, 307 S.E.2d 864,

876 (1983).   "[W]here the Commonwealth's evidence as to an

element of an offense is wholly circumstantial, 'all necessary

circumstances proved must be consistent with guilt and

inconsistent with innocence and exclude every reasonable

hypothesis of innocence.'"    Moran v. Commonwealth, 4 Va. App.

310, 314, 357 S.E.2d 551, 553 (1987) (citation omitted).

However, the Commonwealth "'is not required to disprove every

remote possibility of innocence, but is instead required only to

establish guilt of the accused to the exclusion of a reasonable

doubt.'"    Cantrell v. Commonwealth, 7 Va. App. 269, 289, 373

S.E.2d 328, 338 (1988) (citation omitted).   "The hypotheses which

the prosecution must exclude are those 'which flow from the



                                 -2-
evidence itself, and not from the imagination of defendant's

counsel.'"     Id. at 289-90, 373 S.E.2d at 338-39.

        In a prosecution under Code § 18.2-248, the Commonwealth has

the burden of proving two elements: (1) that the accused

possessed a controlled substance (2) while having the specific

intent to distribute such a substance.     See Wilkins v.

Commonwealth, 18 Va. App. 293, 298, 443 S.E.2d 440, 444 (1994);

Stanley v. Commonwealth, 12 Va. App. 867, 869, 407 S.E.2d 13, 15

(1991); Code § 18.2-248.    Appellant contends that the

Commonwealth failed to prove either element.    We consider each in

turn.
                                  A.

                              POSSESSION

        We hold that the evidence was sufficient to prove that

appellant knowingly and intentionally possessed cocaine in the

motel room.    "To convict a defendant of illegal possession of

drugs, the Commonwealth must prove that the defendant was aware

of the presence and character of the drugs, and that he

intentionally and consciously possessed them."        Josephs v.

Commonwealth, 10 Va. App. 87, 99, 390 S.E.2d 491, 497 (1990)

(citation omitted).    "Physical possession giving the defendant

'immediate and exclusive control' is sufficient."        Gillis v.

Commonwealth, 215 Va. 298, 301-02, 208 S.E.2d 768, 771 (1974).

        The testimony of Captain Lomonaco proved that appellant

possessed a plastic bag containing objects the size and shape of



                                  -3-
little rocks in his right pants pocket at the time the captain

patted down appellant's clothing.      The evidence of appellant's

conduct after Captain Lomonaco felt the plastic bag in his pocket

and the circumstances surrounding the discovery of the plastic

bag containing crack cocaine on the ground outside of the

bathroom window was sufficient to support the jury's conclusion

that the two bags were one and the same.     Immediately after

Captain Lomonaco felt the plastic bag in appellant's pants

pocket, appellant pushed the captain away and barricaded himself

inside the bathroom.   When the officers arrested appellant forty

or fifty seconds later, the bag in his pants pocket was no longer

present.   The window to the bathroom had been closed prior to

appellant's evasive action and was open when the officers kicked

in the door and overpowered appellant.     Captain Lomonaco

testified that the toilet did not flush while appellant was in

the bathroom and that he observed appellant "leaning out the

[bathroom] window with what appeared to be both hands."       The

plastic bag containing the crack was found on top of "fresh snow"

about ten to fifteen feet from the outside of the bathroom

window.    Detective Feightner testified that there were no tracks

other than his within ten or fifteen feet of the bag.

Appellant's awareness of the cocaine in his pocket and his intent

to possess it could be reasonably inferred from his evasive

conduct after the captain felt the bag in his pocket.     Any

reasonable hypotheses that the appellant disposed of the plastic



                                 -4-
bag in his possession in some manner other than tossing it out

the window or that the bag found on the ground was placed there

by someone else were excluded by two key facts:     (1) only forty

or fifty seconds passed in between the time that Captain Lomonaco

felt the plastic bag in appellant's pocket and discovered that

the plastic bag was no longer there and (2) the toilet did not

flush while appellant was in the bathroom.

     This case is distinguishable from Gordon v. Commonwealth,

212 Va. 298, 183 S.E.2d 735 (1971), because the circumstances

that rendered the gap in the police's observation of the

defendant "fatal" in that case are not present here.     In Gordon,
the defendant was seen fleeing from the police carrying an

envelope.     See id. at 299, 183 S.E.2d at 736.   When the defendant

was arrested following a chase on foot, no envelope was in his

possession.     See id.   A short while later, a detective found an

envelope containing "narcotics works," on some grass adjacent to

a "fairly busy" street that was near the route taken by the

defendant.     See id. at 299-300, 183 S.E.2d at 736.   The Virginia

Supreme Court held that the circumstantial evidence was

insufficient to prove that the envelope containing the heroin had

been in the defendant's possession.      See id. at 300, 183 S.E.2d

at 737.   The Court reasoned that because the envelope found by

the detective was located next to "the public street on which

numerous persons were gathered" and because no officer had seen

where along defendant's escape route he had discarded his




                                   -5-
envelope, the circumstantial evidence had failed to exclude the

reasonable hypothesis that the envelope found by the detective

had been dropped by some other pedestrian walking along the

street.     See id. at 300-01, 183 S.E.2d at 737.

     Unlike Gordon, the officers in this case could pinpoint the

area where appellant would have discarded the plastic bag to the

patch of ground adjacent to the bathroom window.    Moreover,

Captain Lomonaco observed appellant reaching toward the opened

window with his hands as he and Officer Miller attempted to kick

in the bathroom door.    In addition, the bag containing the crack

was found on top of undisturbed snow and was ten to fifteen feet

away from a path that the record established was frequented only

by a dog owner and his or her dog.
                                  B.

                         INTENT TO DISTRIBUTE

     Although we conclude that the evidence was sufficient to

prove that appellant possessed cocaine, we hold that the evidence

was insufficient to support the jury's conclusion that appellant

had the specific intent to distribute the drug.     The intent of an

accused to distribute drugs may be shown by circumstantial

evidence.     Wells v. Commonwealth, 2 Va. App. 549, 551, 347 S.E.2d

139, 140 (1986).    Circumstances that shed light on the accused's

specific intent regarding illegal drugs in his possession include

(1) the quantity and method of packaging of the drugs possessed

by him, (2) the presence or absence of an unusual amount of money




                                  -6-
suggesting profit from sales, and (3) the presence or absence of

drug paraphernalia.   See Servis v. Commonwealth, 6 Va. App. 507,

524-25, 371 S.E.2d 156, 165 (1988); see also Dukes v.

Commonwealth, 227 Va. 119, 122, 313 S.E.2d 382, 383 (1984);

Wells, 2 Va. App. at 551-52, 347 S.E.2d at 140.

     Although the evidence in this case created a suspicion that

appellant may have had the intent to distribute drugs, it was not

inconsistent with the hypothesis that he merely possessed cocaine

with the intent to consume it himself.    The evidence established

that appellant possessed about six grams of crack cocaine with a

street value of between $600 and $900 and that he had $232 on his

person at the time of his arrest.     However, no evidence indicated

whether these amounts of cocaine and cash were consistent with

distribution or personal use.   Although a blue gym bag containing

drug paraphernalia and razor blades was discovered on a bed in

the motel room where appellant was arrested, no evidence

established that these items belonged to appellant rather than to

one of the room's other two occupants.    The motel room, itself,

was registered to "Bobby Goode," and a man by this name answered

the door when the police arrived to search the room.    Based on

these circumstances, the mere possession of the cocaine and cash

by appellant is insufficient to exclude the reasonable hypothesis

that appellant had purchased cocaine for personal use from one of

the other occupants of the room prior to the officers' arrival.
     For the foregoing reasons, we reverse appellant's conviction



                                -7-
of possession of cocaine with intent to distribute in violation

of Code § 18.2-248 and remand the proceeding to the trial court

for a new trial on the charge of possession of cocaine, if the

Commonwealth so elects.

                                           Reversed and remanded.




                               -8-
