                   COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Elder and Annunziata
Argued at Salem, Virginia


JAMES JUNIOUS CHANDLER, S/K/A
 JAMES JULIUS CHANDLER
                                      MEMORANDUM OPINION * BY
v.         Record No. 0230-94-3     JUDGE ROSEMARIE ANNUNZIATA
                                           MAY 21, 1996
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE
                      James F. Ingram, Judge
          Mark T. Williams (Williams, Stilwell,
          Morrison, Williams and Light, on brief), for
          appellant.

          Leah A. Darron, Assistant Attorney General
          (James S. Gilmore, III, Attorney General, on
          brief), for appellee.



     Appellant, James Junious Chandler, appeals his conviction

for possession of cocaine in violation of Code § 18.2-250(a).

Appellant contends the evidence was insufficient to support a

conviction based on constructive possession.   We disagree and

affirm.
          "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

(1987) (quoting Drew v. Commonwealth, 230 Va. 471, 473, 338
     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
S.E.2d 844, 845 (1986)).    Neither proximity to contraband nor

presence on the premises where it is found are alone sufficient

to establish constructive possession.     E.g., Brown v.

Commonwealth, 15 Va. App. 1, 9, 421 S.E.2d 877, 882-83 (1992).

Moreover, proximity and presence, together, are insufficient

where the evidence does not show that the defendant's possession

was knowing.     See Scruggs v. Commonwealth, 19 Va. App. 58, 61-63,

448 S.E.2d 663, 665-66 (1994) (defendant, owner and driver of car

in which drugs found within passenger seat, did not

constructively possess drugs because evidence failed to show

defendant knew drugs were there); Jones v. Commonwealth, 17 Va.
App. 572, 574, 439 S.E.2d 863, 864 (1994) (defendant, passenger

in car where drugs found both between passenger and driver seats

and under passenger seat, did not constructively possess drugs

because evidence failed to show how long defendant had been in

car, whether defendant saw drugs between seats, or whether

defendant knew of drugs under seat); Nelson v. Commonwealth, 17

Va. App. 708, 711, 440 S.E.2d 627, 628-29 (1994) (defendant,

present in hotel room where drugs found, did not constructively

possess drugs because drugs not in plain view, no drugs found on

defendant, and evidence failed to show how long defendant had

been in room).

     However, both proximity and presence are factors the trial

court may consider in evaluating the totality of circumstances.
Lane v. Commonwealth, 223 Va. 713, 716, 292 S.E.2d 358, 360




                                 - 2 -
(1982); Brown, 15 Va. App. at 10, 421 S.E.2d at 883; Castaneda v.

Commonwealth, 7 Va. App. 574, 584, 376 S.E.2d 82, 87 (1989).

And, "`[k]nowledge . . . may be proved by evidence of acts,

declarations or conduct of the accused from which the inference

may be fairly drawn that [the accused] knew of the existence of

narcotics at the place where they were found.'"     Hairston v.

Commonwealth, 5 Va. App. 183, 186, 360 S.E.2d 893, 895 (1987)

(quoting People v. Pigrenet, 26 Ill. 2d 224, 227, 186 N.E.2d 306,

308 (1962)).
     In a case of constructive possession, where the Commonwealth

relies wholly on circumstantial evidence to prove a necessary

element of the offense, all the necessary circumstances proved

must be consistent with guilt and inconsistent with innocence to

establish guilt beyond a reasonable doubt.   Harrell v.

Commonwealth, 11 Va. App. 1, 9, 396 S.E.2d 680, 684 (1990).

However, this rule does not require the Commonwealth to disprove

every remote possibility of innocence.   Cantrell v. Commonwealth,

7 Va. App. 269, 289, 373 S.E.2d 328, 338 (1988), cert. denied,
496 U.S. 911 (1990).   The Commonwealth must reasonably exclude

only those hypotheses "which flow from the evidence itself, and

not from the imagination of defendant's counsel."     Id. at 289-90,

373 S.E.2d at 338-39 (quoting Black v. Commonwealth, 222 Va. 838,

841, 284 S.E.2d 608, 609 (1981)).   Thus, as appellant concedes,

"[t]he Commonwealth is not required to prove that there is no

possibility that someone else may have planted, discarded,




                               - 3 -
abandoned or placed the drugs [where they are found near an

accused]."     See, e.g., Brown, 15 Va. App. at 10, 421 S.E.2d at

863.

        Whether an alternative hypothesis is a "reasonable

hypothesis of innocence" is a question of fact.     Cantrell, 7 Va.

App. at 290, 373 S.E.2d at 339.    Unless plainly wrong, a trial

court's factual finding is binding on appeal.     E.g., Naulty v.

Commonwealth, 2 Va. App. 523, 527, 346 S.E.2d 540, 542 (1986).

When considering the sufficiency of the evidence on appeal in a

criminal case, this Court views the evidence in a light most

favorable to the Commonwealth.     Higginbotham v. Commonwealth, 216

Va. 349, 352, 218 S.E.2d 534, 537 (1975).    On review, this Court

may not substitute its own judgment for that of the trier of

fact.     Cable v. Commonwealth, 243 Va. 236, 239, 415 S.E.2d 218,

220 (1992).    Instead, the trial court's judgment will not be set

aside unless it appears that the judgment is plainly wrong or

without supporting evidence.    Code § 8.01-680; Josephs v.
Commonwealth, 10 Va. App. 87, 99, 390 S.E.2d 491, 497 (1990) (en

banc) (quoting Martin v. Commonwealth, 4 Va. App. 438, 443, 358

S.E.2d 415, 418 (1987)).

        Here, the evidence shows that Danville Police Officers

Michael Wallace and D. C. Creed responded to a reported dispute

involving a firearm at the home of a Mrs. Hicks.    When Wallace

arrived, appellant and Hicks were outside.    Wallace checked both

for weapons but found none.    He asked appellant to empty his




                                 - 4 -
pockets, but appellant refused to comply.   Wallace conducted a

pat down search of appellant but felt no weapon.   Wallace then

looked inside a parked vehicle which belonged to neither

appellant nor Hicks and discovered a gun.   By that time, Creed

had arrived.   Wallace exclaimed, "I found a gun," whereupon

appellant ran into Hicks' residence.   Creed pursued appellant,

ordering him to stop four times.   Appellant did not comply.

Instead, appellant ran into a bathroom and closed the door.

Within five to ten seconds, Creed reached the bathroom and opened

the door.   As the door opened, the toilet flushed.   Creed saw

appellant standing next to the toilet with his left pants pocket

pulled inside out and his pants zipped and buttoned.   Creed asked

appellant to step back and to display his hands.   Appellant

complied, and Creed saw appellant neither hold nor drop anything.

Upon bending down to look behind the toilet for a weapon, Creed

noticed what would prove to be a piece of crack cocaine

approximately one-eighth of an inch in diameter.   Creed testified

that the cocaine rested approximately six inches from appellant's

foot on the same side of the floor as the side of appellant's

pants which had the pocket pulled inside out.
     The evidence is sufficient to support a finding, beyond a

reasonable doubt and to the exclusion of a reasonable hypothesis

to the contrary, that appellant was aware of both the presence

and character of the cocaine and that it was subject to his

dominion and control.   Appellant fled from Officer Creed,




                               - 5 -
refusing to stop until he reached the bathroom.    Within seconds,

Creed found appellant standing next to a flushing commode with

his pants zipped and buttoned.    One of appellant's pockets was

turned inside out, and Creed found cocaine on the floor directly

below that pocket, only six inches from appellant's foot.

     Contrary to appellant's assertion, this case is readily

distinguished from Hairston and Wright v. Commonwealth, 217 Va.

669, 232 S.E.2d 733 (1977).   In Hairston, the evidence showed

only that the accused held a child whose clothing contained a

package of drugs and who had been in the care of three other

people for the preceding two and one-half hours.   5 Va. App. at

186, 360 S.E.2d at 895.   In Wright, the evidence showed only that
the accused sat with another man in a room where the police found

drugs.   217 Va. at 670, 232 S.E.2d at 734.

     Accordingly, appellant's conviction is affirmed.

                                                          Affirmed.




                                 - 6 -
BENTON, J., dissenting.

     The Commonwealth had the burden to prove beyond a reasonable

doubt that James Chandler possessed the cocaine found by Officer

Creed.   Because the evidence in this case did not prove that

Chandler "was aware of both the presence and character of the

substance and that it was subject to his dominion and control,"

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

(1986), I would reverse the conviction.
     Viewed in the light most favorable to the Commonwealth,

Commonwealth v. Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d 47,

48 (1991), the evidence proved that when Officer Wallace detained

Chandler in response to a report that "a female had a gun,"

Chandler refused Wallace's request to empty his pockets.     After

the officer frisked him for weapons and walked away, Chandler ran

inside a residence.   Another officer, Creed, chased Chandler into

the bathroom.   Officer Creed estimated that he opened the

bathroom door five to ten seconds after Chandler entered the

bathroom.   When Officer Creed entered the bathroom, he heard the

toilet flushing and saw that the "water had already [gone] down

[and] the bowl was starting to fill back up."   Chandler was

standing in front of the toilet with his pants zippered and

buttoned.   One of his pockets was "pulled inside out."   Creed

asked him to move from the room, searched behind the toilet, and

found a small piece of cocaine on the floor.

     Possession of cocaine may be actual or constructive.      Drew,




                               - 7 -
230 Va. at 473, 338 S.E.2d at 845.     "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

[accused] 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

(1987)(quoting Powers v. Commonwealth, 227 Va. 474, 476, 316

S.E.2d 739, 740 (1984)).   The evidence proved that Officer Creed

did not observe Chandler possess cocaine or do any act to suggest

that he knew the cocaine was on the floor.    Only after "ben[ding]

down to look behind the toilet to see if [Chandler] might have

thrown a weapon behind the toilet," did Officer Creed find the

piece of cocaine.
     Based on the circumstantial evidence, the trial judge could

have inferred that Chandler flushed something down the toilet.

However, only by speculation, surmise or conjecture could he have

concluded that Chandler dropped the cocaine that Officer Creed

found on the floor.   "It is, of course, a truism of the criminal

law that evidence is not sufficient to support a conviction if it

engenders only a suspicion or even a probability of guilt."
Smith v. Commonwealth, 192 Va. 453, 461, 65 S.E.2d 528, 533

(1951).

     In Virginia it is well established that "[e]vidence merely

that the accused was in the proximity of controlled substances is




                               - 8 -
insufficient" to prove possession.      Jones v. Commonwealth, 17 Va.

App. 572, 574, 439 S.E.2d 863, 864 (1994).       Just because Chandler

was near the cocaine does not prove beyond a reasonable doubt

that he was aware of its presence.      Id.    The evidence also failed

to prove that Chandler exercised exclusive dominion or control.

The Commonwealth did not present any evidence that the bathroom

was free of drugs prior to Chandler's entrance or that Chandler

dropped the cocaine.    See Burchette v. Commonwealth, 15 Va. App.

432, 438, 425 S.E.2d 81, 85 (1992).
     To sustain a conviction based upon circumstantial evidence,

"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 (1994).       Evidence is not wholly

inconsistent with innocence where the proof establishes only that

the police find a small piece of cocaine on the floor in the same

room as the accused.    Such evidence leads only to surmise and

conjecture as to who left the cocaine.        "Conviction cannot rest

upon [surmise and] conjecture."     Smith, 192 Va. at 461, 65 S.E.2d

at 533.   See also Hyde v. Commonwealth, 217 Va. 950, 955, 234

S.E.2d 74, 78 (1977).

     Where, as in this case, the evidence amounts to a "mere

suspicion," the evidence is insufficient to convict the accused.

 Garner v. Commonwealth, 186 Va. 600, 613, 43 S.E.2d 911, 917

(1947)(citation omitted).   Therefore, I would reverse the

conviction.



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