                     COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Agee and Senior Judge Hodges
Argued at Chesapeake, Virginia


HOWARD WILLIAM RICHARDS
                                           MEMORANDUM OPINION * BY
v.   Record No. 0823-00-1                  JUDGE WILLIAM H. HODGES
                                               FEBRUARY 20, 2001
COMMONWEALTH OF VIRGINIA


           FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
                        Randolph T. West, Judge

             Paul E. Turner, Jr., for appellant.

             Stephen R. McCullough, Assistant Attorney
             General (Mark L. Earley, Attorney General, on
             brief), for appellee.


     Appellant was convicted of possession of cocaine with the

intent to distribute and possession of heroin with the intent to

distribute.    On appeal, appellant contends that the evidence was

insufficient to prove that he possessed the drugs.    Appellant

argues that the evidence was entirely circumstantial and failed to

exclude every reasonable hypothesis of innocence.    We agree and

reverse.

     "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.



     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
Commonwealth, 26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997)

(citation omitted).

     So viewed, the evidence proved that at approximately

11:00 p.m. on June 30, 1999, Officer James Vollmer was on patrol

in a marked police vehicle and saw appellant standing at the curb

of the roadway and "bent over at the waist."   Appellant then

walked to a yard of a nearby residence.   Vollmer made a u-turn and

returned to the location where appellant had been bent over.

Vollmer found a plastic bag containing five bags of heroin and six

bags of cocaine.    The plastic bag was in the gutter under a

crushed soda can.   There had been a heavy rain earlier that

evening and items in the gutter were wet.   However, the plastic

bag was not wet.    Appellant told Vollmer that when he was bent

over, he discarded a beer bottle.   Vollmer testified that the only

beer bottle on the street was located twenty feet from where

appellant had bent over.   No drugs or drug paraphernalia were

found on appellant.

          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. . . . It is not necessary to show
          actual possession of the controlled
          substance. Constructive possession of a
          controlled substance may be shown by
          establishing that it was subject to his
          dominion or control. Such "possession may
          be proved by 'evidence of acts, declarations
          or conduct of the accused from which an
          inference may be fairly drawn that he knew

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             of the existence of narcotics at the place
             where they were found.'"

Josephs v. Commonwealth, 10 Va. App. 87, 99-100, 390 S.E.2d 491,

497-98 (1990) (citations omitted).

     Where "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) (citations

omitted).    Appellant's hypothesis of innocence was that he saw

something on the ground, bent over, glanced at it and walked off.

     It is well established that "[s]uspicious circumstances,

including proximity to a controlled drug, are insufficient to

support a conviction."     Behrens v. Commonwealth, 3 Va. App. 131,

135, 348 S.E.2d 430, 432 (1986).    Likewise, the "mere

opportunity to commit an offense raises only 'the suspicion that

the defendant may have been the guilty agent; and suspicion is

never enough to sustain a conviction.'"     Christian v.

Commonwealth, 221 Va. 1078, 1082, 277 S.E.2d 205, 208 (1981)

(citation omitted).    "[E]ven probability of guilt is not

sufficient" to support a conviction.     Gordon v. Commonwealth,

212 Va. 298, 300, 183 S.E.2d 735, 737 (1971).

     The evidence falls short of establishing that appellant knew

of the presence of the drugs and exercised dominion and control

over them.    The drugs were not in open view because a crushed soda

                                 - 3 -
can covered them.   Vollmer never saw appellant put anything on the

ground or put anything under the soda can.   Vollmer only saw

appellant's back and that he was bent over at the waist.

Accordingly, appellant's convictions for possession of cocaine

with intent to distribute and possession of heroin with intent to

distribute are reversed, and the charges are dismissed.

                                             Reversed and dismissed.




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