                       COURT OF APPEALS OF VIRGINIA


Present: Judges Baker, Benton and Bray
Argued at Richmond, Virginia


ELVIN ROBERTSON
                                             MEMORANDUM OPINION * BY
v.   Record No. 1807-96-2                     JUDGE RICHARD S. BRAY
                                                  JUNE 24, 1997
COMMONWEALTH OF VIRGINIA


               FROM THE CIRCUIT COURT OF MECKLENBURG COUNTY
                     Charles L. McCormick, III, Judge
               Theodore N. I. Tondrowski (Amy M. Curtis;
               Bowen & Bowen, P.C., on brief), for
               appellant.

               Monica S. McElyea, Assistant Attorney General
               (James S. Gilmore, III, Attorney General, on
               brief), for appellee.



      Elvin Robertson (defendant) was convicted in a bench trial

for possession of cocaine with intent to distribute in violation

of Code § 18.2-248.       On appeal, defendant argues that the

Commonwealth failed to prove his knowledge of the presence and

character of the offending substance, a necessary element to the
          1
crime.        Finding no error, we affirm the conviction.

                                    I.

      In reviewing the sufficiency of the evidence, we examine the

record in the light most favorable to the Commonwealth, granting

      *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
      1
      We decline to address defendant's argument that the
evidence was insufficient to prove the necessary intent to
distribute. See Rule 5A:12(c) ("Only questions presented in the
petition for appeal will be noticed by the Court of Appeals.").
to it all reasonable inferences fairly deducible therefrom.       See

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

(1987).   The judgment of a trial court, sitting without a jury,

is entitled to the same weight as a jury verdict and will be

disturbed only if plainly wrong or without evidence to support

it.   See id.   The credibility of a witness, the weight accorded

the testimony, and the inferences to be drawn from proven facts

are matters to be determined by the fact finder.    See Long v.
Commonwealth, 8 Va. App. 194, 199, 379 S.E.2d 473, 476 (1989).

      Viewed accordingly, the evidence establishes that police

investigator Jay Jordan, 2 acting on a detailed telephone tip from

a reliable confidential informant that defendant was in

possession of cocaine, 3 located and began following a vehicle,

driven by defendant but owned by another.   When traffic

conditions momentarily separated Jordan from the car, he radioed

Chase City Police Officer Ben Williams to stop the vehicle.

Jordan arrived at the scene within minutes, and Williams then

approached defendant on the driver's side, requesting that he

produce his operator's license.   Defendant answered that "he

didn't have [his driver's license] with him," but provided a

Social Security number which was sufficient for Williams to

initiate a Department of Motor Vehicles (DMV) inquiry.

      2
       Jordan was Chase City Chief of Police at the time of trial.
      3
      The contents of the tip were not considered substantive
evidence by the trial court.




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     Meanwhile, Jordan directed defendant to exit the car and

conducted a weapons pat-down of his person.    Defendant declined

Jordan's request to search the vehicle.    Jordan then advised

defendant of the informant's "complaint" against him and returned

to the open driver's door of the stopped vehicle.   When Jordan

"looked down" at the floorboard from outside the open door, he

noticed "what appeared to be a plastic bag."   As he "began to

kneel down to see what it was, [defendant] fled on foot."   Based

upon a cursory examination of the bag, Jordan suspected that it

contained cocaine, "chase[d] [defendant] down" and arrested him

for possession of cocaine with intent to distribute.
     Police discovered $242 on defendant's person during a search

incidental to his arrest, and further examination of the bag and

later analysis of its contents revealed thirty smaller baggies of

cocaine.   The DMV inquiry disclosed that defendant had provided a

false Social Security number.   The record is silent with respect

to the status of his operator's license.

                                II.

     Under settled legal principles,
          possession of a controlled substance may be
          actual or constructive. "To support a
          conviction based upon constructive
          possession, 'the Commonwealth must point to
          evidence of acts, statements, 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.'"


McGee v. Commonwealth, 4 Va. App. 317, 322, 357 S.E.2d 738, 740



                                - 3 -
(1987) (quoting Drew v. Commonwealth, 230 Va. 471, 473, 338

S.E.2d 844, 845 (1986)) (other citations omitted).    Possession

"need not always be exclusive.    The defendant may share it with

one or more."   Josephs v. Commonwealth, 10 Va. App. 87, 99, 390

S.E.2d 491, 497 (1990) (en banc).     Although mere proximity to

drugs is insufficient to establish possession, it is a

circumstance which may be probative in determining whether an

accused possessed such drugs.     See Lane v. Commonwealth, 223 Va.

713, 716, 292 S.E.2d 358, 360 (1982); Brown v. Commonwealth, 15
Va. App. 1, 9, 421 S.E.2d 877, 882 (1992) (reh'g en banc).

Ownership or occupancy of the vehicle in which the drugs are

found is likewise a circumstance probative of possession.     See

Drew v. Commonwealth, 230 Va. 471, 473, 338 S.E.2d 844, 845

(1986) (citing Code § 18.2-250).    Thus, in resolving this issue,

the Court must consider "the totality of the circumstances

disclosed by the evidence."     Womack v. Commonwealth, 220 Va. 5,

8, 255 S.E.2d 351, 353 (1979).

     Circumstantial evidence may establish possession, provided

it excludes every reasonable hypothesis of innocence.      See, e.g.,

Tucker v. Commonwealth, 18 Va. App. 141, 143, 442 S.E.2d 419, 420

(1994).   However, "[t]he Commonwealth need only exclude

reasonable hypotheses of innocence that flow from the evidence,

not those that spring from the imagination of the defendant."

Hamilton v. Commonwealth, 16 Va. App. 751, 755, 433 S.E.2d 27, 29

(1993).   Whether a hypothesis of innocence is reasonable is a



                                 - 4 -
question of fact, see Cantrell v. Commonwealth, 7 Va. App. 269,

290, 373 S.E.2d 328, 339 (1988), and a finding by the trial court

is binding on appeal unless plainly wrong.       See Martin, 4 Va.

App. at 443, 358 S.E.2d at 418.

        Here, a plastic bag containing cocaine was clearly visible

on the floor of the driver's side of a vehicle operated by

defendant.    Defendant was alone in the car, provided police with

a false Social Security number, and was in possession of $242 in

cash.    Finally, defendant fled upon learning particulars of the

informant's report and at the moment Jordan spotted the bag of

cocaine and proceeded to investigate, conduct indicative of a

guilty mind.     See Langhorne v. Commonwealth, 13 Va. App. 97,

102-03, 409 S.E.2d 476, 480 (1991).      "Although none of these

circumstances, standing alone, would have sufficiently proved

that defendant knowingly possessed the drugs, the facts combined

to support the finding that the narcotics discovered were subject

to defendant's informed 'dominion and control.'"       Hetmeyer v.
Commonwealth, 19 Va. App. 103, 111-12, 448 S.E.2d 894, 899-900

(1994).

        Accordingly, we affirm the conviction.

                                                  Affirmed.




                                 - 5 -
Benton, J., dissenting.



     "The burden was on the Commonwealth to prove beyond a

reasonable doubt that [Elvin Robertson] was aware of the presence

and character of the [cocaine] and was intentionally and

consciously in physical or constructive possession of it."

Wright v. Commonwealth, 217 Va. 669, 670, 232 S.E.2d 733, 734

(1977).   Because the conviction was based upon constructive

possession, the evidence must prove "acts, statements, or conduct

of the accused or other facts or circumstances which tend to show

that the [accused] was aware of both the presence and character

of the substance and that it was subject to his dominion and

control."    Powers v. Commonwealth, 227 Va. 474, 476, 316 S.E.2d

739, 740 (1984).   "Further, where, as here, a conviction is based

on circumstantial evidence, 'all necessary circumstances proved

must be consistent with guilt and inconsistent with innocence and

exclude every reasonable hypothesis of innocence.'"    Garland v.

Commonwealth, 225 Va. 182, 184, 300 S.E.2d 783, 784 (1983)

(citation omitted).

     The evidence proved that the vehicle was not owned by

Robertson.   Certainly, the evidence does not exclude the

hypothesis that the bag under the driver's seat was the property

of the owner of the vehicle.   Robertson's presence in the vehicle

does not prove that he possessed the cocaine.   The principle is

well established that mere proximity to the controlled substance

is not enough to establish possession.    See Wright, 217 Va. at



                                - 6 -
670-71, 232 S.E.2d at 734.    Furthermore, Robertson's occupancy of

the vehicle did not give rise to a presumption that he possessed

the cocaine.     See Code § 18.2-250.1(A).

        No acts, statements, or conduct of Robertson proved that

Robertson was aware of the presence of the cocaine.    The evidence

proved that after Robertson had been told to exit the vehicle,

the officer went to the open door of the vehicle and saw "on the

floorboard sticking approximately three to five inches . . . a

floor mat."    The officer then saw "what appeared to be a plastic

bag."    Because he "couldn't detect what type of material was

inside of it . . . [, he] knelt down" and took a closer look.

The photograph in the record shows a corner of a plastic bag

protruding from under the seat.    No evidence proved that

Robertson saw anything amiss in the vehicle or should have

necessarily seen that a plastic bag was under the driver's seat.
 See Jones v. Commonwealth, 17 Va. App. 572, 439 S.E.2d 863

(1994); see also Fogg v. Commonwealth, 216 Va. 394, 219 S.E.2d

672 (1975); Burton v. Commonwealth, 215 Va. 711, 213 S.E.2d 757
(1975).    The evidence only permits suspicious inferences to be

drawn.    "'[E]vidence is not sufficient to support a conviction if

it engenders only a suspicion or even a probability of guilt.'"

Hyde v. Commonwealth, 217 Va. 950, 955, 234 S.E.2d 74, 78 (1977)

(citation omitted).

        Robertson's flight was certainly not sufficient to prove

beyond a reasonable doubt that he knew of the presence of




                                 - 7 -
cocaine.    The evidence proved that when the officer asked

Robertson for his driving permit, Robertson gave the officer a

Social Security number that was not his.     His flight occurred

while the officer was checking the validity of the number.

     The principle is well established that "'where a fact is

equally susceptible of two interpretations one of which is

consistent with the innocence of the accused, [the trier of fact]

cannot arbitrarily adopt that interpretation which incriminates

him.'"     Corbett v. Commonwealth, 210 Va. 304, 307, 171 S.E.2d

251, 253 (1969) (citation omitted).      From the Commonwealth's

evidence, it is just as likely, if not more likely, that

Robertson, "who was in trouble with the law [because he gave the

officer an improper Social Security number], merely attempted to

run . . . to avoid apprehension" for that circumstance.       Haywood

v. Commonwealth, 20 Va. App. 562, 567, 458 S.E.2d 606, 608

(1995).    That is a reasonable hypothesis that the evidence fails

to exclude.

     For these reasons, I would reverse the conviction.




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