                  COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Coleman and Senior Judge Cole
Argued at Richmond, Virginia


CHRISTOPHER NEWELL LEE
                                       MEMORANDUM OPINION * BY
v.        Record No. 0976-97-2        JUDGE SAM W. COLEMAN III
                                         FEBRUARY 10, 1998
COMMONWEALTH OF VIRGINIA


         FROM THE CIRCUIT COURT OF THE CITY OF HOPEWELL
                      James A. Luke, Judge
          Brad P. Butterworth (Butterworth & Waymack,
          on brief), for appellant.

          Euguene Murphy, Assistant Attorney General
          (Richard Cullen, Attorney General, on brief),
          for appellee.



     Christopher Newell Lee was convicted in a bench trial for

possession of cocaine, a schedule II controlled substance.   The

sole issue on appeal is whether the evidence is sufficient to

prove that appellant constructively possessed the cocaine.

Finding the evidence sufficient, we affirm the conviction.

     In proving possession of a controlled substance, the

Commonwealth may prove either actual or constructive possession.
 See White v. Commonwealth, 24 Va. App. 446, 452, 482 S.E.2d 876,

879 (1997).
          "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 or
          circumstances which tend to show that the
          defendant was aware of both the presence and
          character of the substance and that it was
     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
           subject to his dominion and control.'"


Id. (quoting Drew v. Commonwealth, 230 Va. 471, 473, 338 S.E.2d

844, 845 (1986) (other citations omitted)).       When the

Commonwealth relies on circumstantial evidence, as it must often

do in order to prove constructive possession, the evidence must

exclude every reasonable hypothesis of innocence that flows from

the evidence.     See Cantrell v. Commonwealth, 7 Va. App. 269,

289-90, 373 S.E.2d 328, 338-39 (1988).
     "On appeal, we view the evidence in the light most favorable

to the Commonwealth, granting to it all reasonable inferences

fairly deducible therefrom."     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 not be set aside unless it appears from the

evidence that the judgment is plainly wrong or without evidence

to support it."     Id.

     Viewed accordingly, the evidence proved that appellant

constructively possessed cocaine.        Appellant was driving his

brother's pickup truck when he was stopped by City of Hopewell

Police Detective Michael Whittington.       After appellant consented

to a search of the vehicle, Detective Whittington recovered a

baggie containing cocaine residue from a jacket lying directly

behind the driver's seat.    When Detective Whittington stated to

appellant that he believed the residue was cocaine, appellant

replied:   "It is, but it isn't mine; it's my brother's."



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     The circumstantial evidence supports the trial court's

conclusion that appellant knew of the nature and presence of the

cocaine and that he subjected it to his dominion and control.

Appellant's acknowledgement that the substance in the baggie was

cocaine warranted the inference that he knew of the presence and

nature of the cocaine in the jacket.   See Josephs v.

Commonwealth, 10 Va. App. 87, 99, 390 S.E.2d 491, 497 (1990) (en

banc) (constructive possession may be proved by "evidence of

. . . declarations . . . of the accused for which an inference

may be fairly drawn that he knew of the existence of the

narcotics at the place they were found").   Moreover, from the

fact that appellant knew of the nature and character of the

substance and was familiar with it by claiming that it belonged

to his brother, the fact finder could infer that he was aware of

the presence of the cocaine.   Furthermore, the fact finder could

reasonably conclude that appellant, who knew of the nature and

presence of the cocaine, was exerting dominion and control over

the cocaine from the fact that he was the operator of the

vehicle, which was under his immediate lawful possession and

control.   See Fox v. Commonwealth, 213 Va. 97, 101, 189 S.E.2d

367, 370 (1972); Jetter v. Commonwealth, 17 Va. App. 745, 747,

440 S.E.2d 633, 634 (1994); Burchette v. Commonwealth, 15 Va.

App. 432, 435, 425 S.E.2d 81, 83 (1992).    The proximity of

appellant to the cocaine found directly behind the driver's seat

is a factor that the fact finder could consider in determining




                               - 3 -
whether he possessed the cocaine.      See White, 24 Va. App. at

452-53, 482 S.E.2d at 879.

     Accordingly, upon review, we cannot say that the conviction

is plainly wrong or without evidence to support it.      See

Code § 8.01-680.   We affirm the conviction.

                                                           Affirmed.




                               - 4 -
Benton, J., dissenting.


     "The burden was on the Commonwealth to prove beyond a

reasonable doubt that [Christopher Lee] . . . 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 [Lee] . . . or other facts or

circumstances which tend to show that [Lee] . . . 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).

     No acts, statements, conduct of Lee, or other circumstances

proved that Lee was aware of the presence of the cocaine.    The

evidence proved that the officer stopped Lee while Lee was

driving his brother's truck.    Lee consented to a search of the

truck.   After three or four minutes of searching the cab of the

truck, the officer searched behind the seats and found a jacket

and other clothing.   Inside the pocket of the jacket, the officer



                                 - 5 -
found "a clear, baggy type item" that the officer believed

contained cocaine residue.    The officer testified that he "showed

the item to [Lee] . . . [and] advised him that I believed it was

cocaine residue."   Lee told the officer, "It is, but it isn't

mine; it's my brother's."

     Although the evidence proved that Lee acknowledged that the

substance in the baggie was cocaine residue, that proof does not

warrant the inference, as the majority suggests, that Lee was

aware of the cocaine's presence in the vehicle.    The proof merely

allows the inferences that Lee knew the appearance of cocaine

residue, or that Lee was familiar with his brother's cocaine use,

or that Lee was willing to accept the officer's belief that the

substance was cocaine.   The inferences that flow from the

evidence do not establish that Lee knew before seeing the cocaine

that cocaine was in the jacket or even that he knew the jacket

was in the vehicle.   The principle is well established that

"[w]here inferences are relied upon to establish guilt, they must

point to guilt so clearly that any other conclusion would be

inconsistent therewith."     Dotson v. Commonwealth, 171 Va. 514,

518, 199 S.E. 471, 473 (1938).    Thus, to sustain a conviction, it

is not enough to conclude that the evidence reasonably supports

an inference of guilt, "[t]he actual commission of the crime by

the accused must be shown by evidence beyond a reasonable doubt."

 Clodfelter v. Commonwealth, 218 Va. 619, 623, 238 S.E.2d 820,

822 (1977).



                                 - 6 -
     No evidence proved that Lee knew or should have necessarily

known that a plastic baggie was in a pocket of a jacket in the

cab of a truck that did not belong to him.      See Jones v.

Commonwealth, 17 Va. App. 572, 439 S.E.2d 863 (1994).     The

evidence does not exclude the reasonable hypothesis that Lee

became aware of the presence and the character of the substance

once the officer showed it to Lee and told Lee that he believed

it was cocaine residue.
     It cannot even be reasonably inferred that because Lee

claimed the baggie belonged to his brother, Lee was aware of the

presence of the substance before it was shown to him.     Lee did

not acknowledge that the jacket was his.     The evidence proved

that the vehicle was owned by Lee's brother.     Furthermore, no

evidence excluded the reasonable hypothesis that Lee said the

cocaine was his brother's because it was found in the pocket of a

jacket in his brother's truck.    Certainly, the evidence does not

exclude the reasonable hypothesis that the bag found in the

jacket pocket was the property of Lee's brother, the owner of the

truck.   Lee's presence in the vehicle does not prove that he

possessed the cocaine.    Lee's mere proximity to a controlled

substance is not enough to establish possession, see Wright, 217
Va. 670-71, 232 S.E.2d at 734, and Lee's occupancy of the vehicle

does not give rise to a presumption that he possessed the

cocaine.   See Code § 18.2-250.1(A).     At most, the evidence

creates a suspicion that Lee was aware of the presence of the



                                 - 7 -
cocaine.   "Suspicion, however, no matter how strong, is




                               - 8 -
insufficient to sustain a criminal conviction."   Stover v.

Commonwealth, 222 Va. 618, 624, 283 S.E.2d 194, 197 (1981).

     For these reasons, I would reverse the conviction.




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