                    COURT OF APPEALS OF VIRGINIA


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


LORENZO MOORE
                                          MEMORANDUM OPINION * BY
v.   Record No. 2037-99-1                 JUDGE WILLIAM H. HODGES
                                              OCTOBER 17, 2000
COMMONWEALTH OF VIRGINIA


                FROM THE CIRCUIT COURT OF YORK COUNTY
                    N. Prentis Smiley, Jr., Judge

          Alice K. Twiford for appellant.

          Kathleen B. Martin, Assistant Attorney
          General (Mark L. Earley, Attorney General, on
          brief), for appellee.


     Lorenzo Moore, appellant, appeals his convictions for

possession of cocaine, in violation of Code § 18.2-250, and

possession of a firearm while in possession of cocaine, in

violation of Code § 18.2-308.4.   Appellant challenges the

sufficiency of the evidence for both offenses.     We conclude the

evidence was insufficient to prove appellant possessed the

cocaine and, accordingly, we reverse the convictions.

                               FACTS

     On December 18, 1998, at 12:40 a.m., State Trooper M.T.

Fisher stopped a rental vehicle for defective equipment.     As

Fisher approached the car, he observed the passenger making

     *
       Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
quick, furtive movements.    The driver, appellant, made no

movements.    When Fisher shined his flashlight into the car, he

immediately saw a 9mm firearm on the console between appellant

and the passenger.    Fisher asked appellant and the passenger to

exit the vehicle.    When appellant complied, Fisher observed a

torn plastic baggie corner with a small piece of suspected crack

cocaine on the driver's seat between where appellant's right leg

would have been and the console.    Fisher described the size and

appearance of the cocaine as being like that of half a dime.

The baggie and cocaine together were the size of a dime.      Fisher

testified he immediately recognized the substance to be cocaine,

based on his training and experience.    He conceded, however,

that someone who had no experience with cocaine and its

packaging might have mistaken the object for trash.    Laboratory

analysis proved the substance was cocaine.

        Fisher also found a smoking device under the driver's seat,

marijuana under the armrest of the console between the front

seats, and a loaded magazine for the weapon under the

passenger's seat.    The passenger produced documentation

indicating the gun belonged to him and he claimed possession of

the marijuana.    Appellant made no statement.   The record does

not indicate whether the smoking device was for marijuana,

crack, or some other substance.    Nor did the officer have the

pipe tested to determine the source of the burnt residue on the

pipe.    The officer stated that both occupants had been drinking,

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but did not testify that either appeared to be under the

influence of any other substances.    The rental car was

registered to a company, not to appellant or the passenger.

                             ANALYSIS

     "On appeal, 'we review the evidence in the light most

favorable to the Commonwealth, granting to it all reasonable

inferences fairly deducible therefrom.'"    Archer v.

Commonwealth, 26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997)

(citation omitted).

          In reviewing that evidence, however, "we
          cannot . . . disregard credible, unimpeached
          evidence of the Commonwealth which
          exculpates the defendant and creates a
          reasonable doubt." A conviction based on
          circumstantial evidence may be sustained
          only if the evidence, when taken as a whole,
          excludes every reasonable hypothesis of
          innocence. Thus, the evidence must be
          wholly consistent with guilt and wholly
          inconsistent with innocence.

Scruggs v. Commonwealth, 19 Va. App. 58, 61, 448 S.E.2d 663,

664-65 (1994) (citations omitted).

     "To sustain a conviction for possession of a controlled

substance in violation of Code § 18.2-250, the evidence must

prove beyond a reasonable doubt that the accused was aware of

the presence and character of the controlled substance."     Jones

v. Commonwealth, 17 Va. App. 572, 574, 439 S.E.2d 863, 864

(1994) (citation omitted).

          "To support a conviction based on
          constructive possession, 'the Commonwealth
          must point to evidence of acts, statements,

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            or conduct of the accused or other facts or
            circumstances which tend to show that the
            defendant was aware of both the presence and
            character of the substance and that it was
            subject to his dominion and control.'"

White v. Commonwealth, 24 Va. App. 446, 452, 482 S.E.2d 876, 879

(1997) (citations omitted).   "Evidence merely that the accused

was in the proximity of controlled substances is insufficient,

however, to prove that the accused was aware of the presence and

character of a controlled substance."    Jones, 17 Va. App. at

574, 439 S.E.2d at 864.

      The Commonwealth contends the smoking device found under

appellant's seat connects appellant with the cocaine.      We

disagree.   The device was not in plain view, and no evidence

proved appellant knew it was under the seat or that he had used

it.   Appellant made no furtive movements to suggest he put the

device under the seat.    Further, the evidence does not prove

that the device was used to smoke cocaine.   Therefore, the

smoking device does not tie appellant to the cocaine in any way.

      The Commonwealth also argues that the trial court could

infer appellant's knowledge of the cocaine's presence and

character because he was sitting on the cocaine.   However,

regardless of whether appellant was seated on or next to the

cocaine, it was small enough to go unnoticed.   Even if he knew

of its presence, no evidence showed he was aware of its

character or that he exercised any dominion and control over it.

Fisher candidly testified that someone without experience in

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handling cocaine could have mistaken the package for trash.    No

evidence proved appellant had any experience with cocaine.

     The passenger made the furtive movements and claimed

ownership of the gun and the marijuana.   Appellant made no

statements, nor exhibited any conduct, and no circumstances

existed from which one could infer that he was aware of the

presence or character of the cocaine.   Therefore, having failed

to exclude reasonable hypotheses of innocence, the evidence does

not prove beyond a reasonable doubt that appellant possessed the

cocaine.   Finding the evidence insufficient, we reverse the

possession of cocaine conviction.   Without the predicate offense

of possession of cocaine, we also reverse the conviction for

possession of a firearm while in possession of cocaine.

                                           Reversed and dismissed.




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