                     COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Fitzpatrick, Judges Annunziata and Agee
Argued at Alexandria, Virginia


KENNETH RAY LOWE
                                                 OPINION BY
v.   Record No. 1910-00-3                JUDGE ROSEMARIE ANNUNZIATA
                                                JULY 10, 2001
COMMONWEALTH OF VIRGINIA


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

          (Freddie E. Mullins; Buddy H. Wallen, P.C.,
          on briefs), for appellant. Appellant
          submitting on briefs.

          (Mark L. Earley, Attorney General; Leah A.
          Darron, Assistant Attorney General, on
          brief), for appellee. Appellee submitting on
          brief.


     The appellant, Kenneth Ray Lowe, appeals his conviction in

the Circuit Court of Buchanan County for manufacturing

marijuana, in violation of Code § 18.2-248.1. 1     Lowe contends the

evidence was insufficient to support the conviction.       We agree,

and reverse.




     1
       The Court notes that the conviction and sentencing order
reflects that the appellant pled guilty to the charge of
manufacturing marijuana. However, after a review of the entire
record in this case, it appears the appellant pled not guilty.
Accordingly, this matter is remanded to the trial court for the
sole purpose of correcting that clerical error.
                            BACKGROUND

     On appeal, we view the evidence and all reasonable

inferences fairly deducible therefrom, in the light most

favorable to the Commonwealth.     Higginbotham v. Commonwealth,

216 Va. 349, 352, 218 S.E.2d 534, 537 (1975).    On July 19, 1999,

Buchanan County Sheriff's Investigator Blaine Crouse was looking

for Jerry Lowe, the appellant's brother.    He drove to Jerry

Lowe's home and spoke with a woman who lived with him.    The

woman advised Crouse that Jerry Lowe "wasn't at home, that he

had spent the night at [the appellant's] residence and then told

[the officer] that [the appellant's] house was down there at the

railroad trestle."

     Crouse was familiar with appellant's residence because he

had been there "probably three or four times" in the prior four

months, and he had once arrested appellant there.    Crouse also

testified that when he arrived at appellant's home that day, a

German Shepherd dog that he had seen on his previous visits was

tied up in the backyard.

     Crouse walked onto the front porch and knocked on the door.

When no one answered, he turned to leave, but saw a bucket

containing a marijuana plant sitting on the hillside, fifteen

feet from the residence.   He walked up on the hillside to check

the plant and, when he turned around, saw four other buckets

containing marijuana plants sitting on a table against the side

of the house.   The dirt in the buckets looked like it had "just

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been worked," and he observed finger and hand prints in the soil

surrounding the plants.

     Crouse also observed a device nailed to the house that

channeled water onto the plants.   The plants were sent to the

Bureau of Forensic Science for analysis, which established that

the plants were marijuana and weighed two grams.

     Crouse also testified that he had been at the same

residence two hours prior to discovering the marijuana plants

and that he had spoken to a young lady during that earlier

visit, but had not learned her name.

     Defense counsel moved to strike at the close of the

Commonwealth's evidence.   The trial court overruled the motion

and found that the evidence established that freshly tended

marijuana plants were found at the appellant's home and that

this circumstantial evidence proved that appellant had dominion

and control over the drugs.   Appellant was convicted of

manufacturing marijuana and sentenced to five years in prison

with four years of the sentence suspended.

                              ANALYSIS

     In order to prove that the appellant manufactured the

marijuana in question, the Commonwealth was required to prove

that he "planted, cultivated, grew or harvested" the marijuana.

Patterson v. Commonwealth, 19 Va. App. 698, 702, 454 S.E.2d 367,

369 (1995); King v. Commonwealth, 2 Va. App. 708, 710-11, 347

S.E.2d 530, 531 (1986).    In addition, because "[a] person cannot

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manufacture marijuana without possessing it," Patterson, 19 Va.

App. at 702, 454 S.E.2d at 369, the Commonwealth was required to

prove the defendant was:   (1) aware of the presence and

character of the particular substance; and (2) was intentionally

and consciously in possession of it.     Clodfelter v.

Commonwealth, 218 Va. 619, 622, 238 S.E.2d 820, 822 (1977).       The

Commonwealth was not required to prove the defendant actually

possessed the controlled substance, but could rely on proof of

constructive possession.     Drew v. Commonwealth, 230 Va. 471,

473, 338 S.E.2d 844, 845 (1986).

     To support a conviction based on constructive possession,

the Commonwealth must point to evidence of acts, statements or

conduct of the accused or other facts and circumstances which

tend to show the defendant was aware of both the presence and

character of the substance and that it was subject to his

dominion and control.   Garland v. Commonwealth, 225 Va. 182,

184, 300 S.E.2d 783, 784 (1983); Clodfelter, 218 Va. at 622, 238

S.E.2d at 822.   Where the Commonwealth's case rests entirely

upon circumstantial evidence, as in this case, the evidence not

only must be consistent with guilt, but it also must exclude

every reasonable hypothesis of innocence.     Clodfelter, 218 Va.

at 623, 238 S.E.2d at 822.

     The Commonwealth's evidence failed to establish that the

appellant occupied the home at the time the marijuana plants

were found or that he was the only person with access to the

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residence.   Although it proved that Lowe resided at the home and

had been present there on previous occasions, evidence of

ownership or occupancy of the premises, alone, is insufficient

to prove constructive possession.   Nicholas v. Commonwealth, 186

Va. 315, 322, 42 S.E.2d 306, 310 (1947); see also Lane v.

Commonwealth, 223 Va. 713, 716, 292 S.E.2d 358, 360 (1982)

(citing Code § 18.2-250.1).

     While evidence of ownership or occupancy is probative on

the question and constitutes a circumstance that may be

considered along with other evidence, Powers v. Commonwealth,

227 Va. 474, 476, 316 S.E.2d 739, 740 (1984), in this case, no

other evidence connected the appellant to the marijuana.    No

evidence showed the appellant had been at the house on the day

the marijuana was found or during a period from which the finder

of fact could reasonably conclude appellant constructively

possessed the marijuana.   Furthermore, the Commonwealth's own

evidence showed that two other people, the appellant's brother

and the unidentified woman, were at the residence on the day

Investigator Crouse discovered the recently "worked" marijuana

plants.

     The Commonwealth's circumstantial evidence failed to

eliminate the reasonable hypothesis that someone other than

Lowe brought the pots of marijuana to the home on the day they

were discovered.   See Burchette v. Commonwealth, 15 Va. App.

432, 438, 425 S.E.2d 81, 85 (1992) (where we found, "[t]he

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evidence simply does not exclude the very real possibility that

other members of [the defendant's] family or someone other than

[the defendant] used or had access to the vehicle and had left

the drugs there unbeknownst to him").   Therefore, we find the

evidence to be insufficient, as a matter of law, to prove the

appellant manufactured the marijuana.   Accordingly, we reverse

the conviction and dismiss the indictment.

                                         Reversed and dismissed.




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