                        COURT OF APPEALS OF VIRGINIA


Present: Judges Bray, Clements and Senior Judge Hodges
Argued at Chesapeake, Virginia


TONY BROWN
                                           MEMORANDUM OPINION * BY
v.   Record No. 2516-99-1                   JUDGE RICHARD S. BRAY
                                              OCTOBER 10, 2000
COMMONWEALTH OF VIRGINIA


         FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
                    Johnny E. Morrison, Judge

             S. Jane Chittom, Appellate Counsel (Public
             Defender Commission, on briefs), for
             appellant.

             Virginia B. Theisen, Assistant Attorney
             General (Mark L. Earley, Attorney General, on
             brief), for appellee.


     Tony Brown (defendant) was convicted in a bench trial for

possession of heroin with intent to distribute, a violation of

Code § 18.2-248.    On appeal, he contends the evidence was

insufficient to support the conviction.    We agree and reverse the

trial court.

     The parties are fully conversant with the record, and this

memorandum opinion recites only those facts necessary to a

disposition of the appeal.    In accordance with well established

principles, we view the evidence in the light most favorable to



     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
the Commonwealth.   See Archer v. Commonwealth, 26 Va. App. 1, 11,

492 S.E.2d 826, 831 (1997).

     "To establish 'possession' in the legal sense, not only

must the Commonwealth show actual or constructive possession of

the drug by the defendant, it must also establish that the

defendant intentionally and consciously possessed the drug with

knowledge of its nature and character."     Williams v.

Commonwealth, 14 Va. App. 666, 669, 418 S.E.2d 346, 348 (1992)

(citation omitted).   "'Knowledge of the presence and character

of the controlled substance may be shown by evidence of the

acts, statements or conduct of the accused.'"     Id. at 669, 418

S.E.2d at 348 (citation omitted).     Circumstantial evidence is

sufficient to establish the requisite elements of possession,

provided such proof excludes every reasonable hypothesis of

innocence.   See Tucker v. Commonwealth, 18 Va. App. 141, 143, 442

S.E.2d 419, 420 (1994).   "Whenever the evidence leaves indifferent

which of several hypotheses is true, or merely establishes only

some finite probability in favor of one hypothesis, such evidence

does not amount to proof of guilt beyond a reasonable doubt."

Sutphin v. Commonwealth, 1 Va. App. 241, 248, 337 S.E.2d 897, 900

(1985).

     Here, Portsmouth detectives observed defendant and "another

gentleman," later identified as "Mr. McClelland," standing "very

close together" on a street corner.    As the detectives approached

in an "unmarked" police vehicle, McClelland "handed [defendant] a

                               - 2 -
small plastic container," defendant glanced toward the police car,

and, without "look[ing] at the item," immediately returned it to

McClelland.    McClelland then fled with detectives in pursuit,

discarding the container, later recovered and identified as a

"Tic-Tac box," in his haste.   Subsequent investigation and

analysis of the contents revealed "forty-five capsules" of

"off-white powder," 2.81 grams of heroin.

     Thus, the record establishes only that McClelland passed

defendant an innocuous closed container as the two men

conversed, which defendant immediately returned, without

examination.    Again in possession of the box and aware of police

presence, McClelland fled, then ridding himself of the

contraband, while defendant remained at the scene.     Such

evidence suggests a myriad of scenarios consistent with

defendant's innocence.    The Commonwealth's argument that his

quick return of the box constituted evasive action indicative of

"a consciousness of guilt" is unpersuasive.    To the contrary,

and more compelling, defendant did not join McClelland in flight

at the sight of police.

     Thus, while defendant's conduct may have aroused suspicion

of criminal conduct, "'suspicion of guilt, however strong, is

insufficient to support a criminal conviction.'"     Boothe v.

Commonwealth, 4 Va. App. 484, 492, 358 S.E.2d 740, 745 (1987)

(citation omitted).



                                - 3 -
Accordingly, we reverse the conviction.

                                   Reversed and dismissed.




                         - 4 -
