                    COURT OF APPEALS OF VIRGINIA

Present:  Chief Judge Fitzpatrick, Judges Benton, Coleman,
          Willis, Elder, Bray, Annunziata, Bumgardner, Lemons and
          Senior Judge Overton *
Argued at Richmond, Virginia


SHURON MAURICE BARKSDALE
                                          MEMORANDUM OPINION ** BY
v.         Record No. 1106-97-2            JUDGE LARRY G. ELDER
                                             FEBRUARY 23, 1999
COMMONWEALTH OF VIRGINIA


                      UPON A REHEARING EN BANC

            FROM THE CIRCUIT COURT OF CHARLOTTE COUNTY
                     William L. Wellons, Judge

           Nora J. Miller (Watson & Nelson, P.C., on
           brief), for appellant.

           Eugene Murphy, Assistant Attorney General
           (Mark L. Earley, Attorney General, on brief),
           for appellee.


     Shuron Maurice Barksdale (appellant) appealed from his bench

trial conviction for possession of cocaine pursuant to Code

§ 18.2-250. 1   On appeal, he contended the evidence was


     *
      Judge Overton participated in the hearing and decision of
this case prior to the effective date of his retirement on
January 31, 1999 and thereafter by his designation as a senior
judge pursuant to Code § 17.1-401, recodifying Code
§ 17-116.01:1.
     **
      Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
     1
      Appellant originally was indicted for possession with
intent to distribute in violation of Code § 18.2-248. The order
of conviction of March 4, 1997 recites that the court "[found]
the accused guilty of possession of cocaine, Virginia Code
Section 18.2-248." However, Code § 18.2-248 proscribes the
offense of possessing cocaine with the intent to distribute,
whereas Code § 18.2-250 proscribes simple possession. The
sentencing order of April 15, 1997 does not make clear the
offense for which appellant was convicted. It mentions only the
insufficient to prove that he possessed the cocaine the arresting

officers found on the ground after his arrest.    He argued that

the evidence failed to exclude the reasonable hypothesis that the

cocaine the officers found at the location of his arrest had been

dropped or placed there by someone else.    In an unpublished

decision, a divided panel of this Court agreed with appellant and

reversed his conviction.   See Barksdale v. Commonwealth, No.

1106-97-2 (Va. Ct. App. July 28, 1998).    We granted a rehearing

en banc and, based on a ruling of the majority of the full court

that the circumstantial evidence was sufficient to prove

appellant actually possessed the cocaine, we affirm appellant's

conviction.

     When considering the sufficiency of the evidence on appeal

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

most favorable to the Commonwealth, granting to it all reasonable

inferences fairly deducible therefrom.     See Higginbotham v.

Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975).      On

review, this Court does not substitute its own judgment for that

of the trier of fact.   See Cable v. Commonwealth, 243 Va. 236,

________________
offense for which appellant was indicted--possession with intent
to distribute in violation of Code § 18.2-248--and imposes a
sentence which would be appropriate for either offense. The
trial transcript makes clear that the trial court convicted
appellant under Code § 18.2-250, for it "[found] that the
evidence does show beyond a reasonable doubt [appellant's] guilt
of a lesser included offense of possession of cocaine."
Therefore, we remand the matter to the trial court for the sole
purpose of correcting the clerical errors in the trial court's
conviction and sentencing orders. See Tatum v. Commonwealth, 17
Va. App. 585, 592, 440 S.E.2d 133, 138 (1994).




                               - 2 -
239, 415 S.E.2d 218, 220 (1992).    The trial court's judgment will

not be set aside unless it appears that the judgment is plainly

wrong or without supporting evidence.     See Martin v.

Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987).

     "Circumstantial evidence is as competent and is entitled to

as much weight as direct evidence, provided it is sufficiently

convincing to exclude every reasonable hypothesis except that of

guilt."     Coleman v. Commonwealth, 226 Va. 31, 53, 307 S.E.2d 864,

876 (1983).    "[W]here the Commonwealth's evidence as to an

element of an offense is wholly circumstantial, 'all necessary

circumstances proved must be consistent with guilt and

inconsistent with innocence and exclude every reasonable

hypothesis of innocence.'"     Moran v. Commonwealth, 4 Va. App.

310, 314, 357 S.E.2d 551, 553 (1987) (citation omitted).

However, the Commonwealth "'is not required to disprove every

remote possibility of innocence, but is instead, required only to

establish guilt of the accused to the exclusion of a reasonable

doubt.'"     Cantrell v. Commonwealth, 7 Va. App. 269, 289, 373

S.E.2d 328, 338 (1988) (citation omitted).    "The hypotheses which

the prosecution must exclude are those '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 (citation

omitted).

     "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



                                 - 3 -
and consciously possessed them."     Josephs v. Commonwealth, 10 Va.

App. 87, 99, 390 S.E.2d 491, 497 (1990) (citation omitted).

"Physical possession giving the defendant 'immediate and

exclusive control' is sufficient."     Gillis v. Commonwealth, 215

Va. 298, 301-02, 208 S.E.2d 768, 771 (1974).    However, mere

proximity to a controlled substance, standing alone, is not

sufficient to establish possession.     See Wright v. Commonwealth,

217 Va. 669, 670, 232 S.E.2d 733, 734 (1977).

     We hold that the evidence was sufficient to prove that

appellant actually possessed the cocaine found by the officers

after his arrest.   The evidence of appellant's conduct proved

that, at the time of his arrest, he was concealing something in

his right hand that he did not want the officers to see.    Trooper

Wilborn testified that, as appellant fled from him, appellant ran

with his right hand partially inside his pants.    Nothing in the

record indicates that appellant's pants were either falling down

or even loose-fitting.   Appellant made no throwing motion while

he was running from Trooper Wilborn.    After the trooper had

placed appellant on the ground, appellant resisted the trooper's

efforts to handcuff his right hand behind his back.    The trooper

succeeded in moving appellant's right hand behind his back only

after ordering him several times and using force.    This evidence

indicates that appellant was holding an object in his right hand

during this time.   The fact that appellant's attempt to conceal

his right hand was made in the context of fleeing from the police

tends to show his awareness that the object in his hand was



                               - 4 -
incriminating.     See Jones v. Commonwealth, 208 Va. 370, 374, 157

S.E.2d 907, 910 (1967) (stating that "evidence of flight to avoid

arrest is admissible as tending to show consciousness of guilt on

the part of the accused").

     The circumstantial evidence regarding the location of the

cocaine found by the officers, the manner in which it was

packaged, and the nature of the surrounding area established to

the exclusion of all reasonable hypotheses of innocence that the

object appellant was attempting to conceal in his right hand was

the cocaine subsequently found by the officers.    The cocaine was

found "exactly where [appellant] had been [lying] down" when he

was handcuffed.    Trooper Wilborn testified the cocaine was

located in a twenty-dollar bill that was crumpled up into a ball

as if it had been held in someone's hand.    Appellant was arrested

on the grounds of a church at an area known as "Bethal."    Bethal

was located at the intersection of Routes 40 and 617.    Although

this intersection was "fairly well traveled," only two buildings

were located there--a church and a store.    Nothing in the record

indicated that Bethal was characterized by even moderate foot

traffic or that it was either a high crime area or an open air

drug market.   The cocaine was found far away from either road--at

least fifty yards from Route 40 and thirty yards from Route

617--reducing the possibility that it had been discarded from a

passing vehicle.    In addition, both the cocaine and the

twenty-dollar bill in which it was wrapped are objects "'of

significant value,'" making it unlikely that they were either



                                 - 5 -
intentionally or carelessly discarded on the grounds of the

church by someone else prior to appellant's arrest.        Powell v.

Commonwealth, 27 Va. App. 173, 178, 497 S.E.2d 899, 901 (1998)

(quoting Collins v. Commonwealth, 13 Va. App. 177, 180, 409

S.E.2d 175, 176 (1991)).    These circumstances support the

conclusion that appellant was holding the twenty-dollar bill

containing the cocaine in his right hand prior to the time

Trooper Wilborn handcuffed him and that the balled-up bill left

appellant's hand as he was lying on the ground.       The evidence

regarding the church's isolated location and the lack of any

evidence indicating the presence of other persons in the area

excludes as a reasonable hypothesis the possibility that someone

else left the cocaine at the spot where Trooper Wilborn placed

appellant on the ground.

     This case is distinguishable from Gordon v. Commonwealth,

212 Va. 298, 301, 183 S.E.2d 735, 737 (1971), because the nature

of the break in the chain of circumstances that occurred in

Gordon is not present here.       In Gordon, the defendant was seen

carrying an envelope while fleeing from the police on foot in the

City of Richmond.     See id. at 299, 183 S.E.2d at 736.    The

officer chasing the defendant briefly lost sight of him twice

during his pursuit.     See id.    When the defendant was arrested, no

envelope was in his possession.       See id.   A short while later, a

detective found an envelope containing "narcotics works," on some

grass adjacent to a "fairly busy" street that was along the

defendant's escape route.     See id. at 299-300, 183 S.E.2d at 736.



                                   - 6 -
This envelope was similar in appearance to the one initially

carried by the defendant.     See id. at 300, 183 S.E.2d at 736.

The Virginia Supreme Court held that the circumstantial evidence

was insufficient to prove that the envelope found by the

detective had been in the defendant's possession.     See id. at

300, 183 S.E.2d at 737.   The Court reasoned that the chain of

circumstantial evidence linking the defendant to the envelope

found by the detective was "fatally" broken because "no witness

was produced who saw [the defendant] dispose of the . . .

envelope" he had been carrying and the envelope found by the

detective was located next to a "public street on which numerous

persons were gathered."     See id. at 300-01, 183 S.E.2d at 737.

     Unlike in Gordon, the cocaine was not found at a point along

appellant's escape route or at a point to which other persons had

access during the relevant time period.    Appellant's conduct

indicates that he was in possession of an object he was

attempting to conceal at the exact location where the cocaine was

eventually found.   Because appellant made no throwing motion

while he was fleeing from Trooper Wilborn and because appellant

resisted allowing his right hand to be placed behind his back

during his arrest, the hypothesis that appellant discarded the

object in his hand at some unknown point along his escape route

does not flow from the evidence.    Moreover, unlike in Gordon, the
cocaine was not found near a city street "on which numerous

persons were gathered."     Id. at 301, 183 S.E.2d at 737.   The

church was only one of two buildings located at a rural, fairly



                                 - 7 -
isolated intersection.   No more than ten minutes passed from the

time appellant was removed from the scene of his arrest to the

time the officers returned with a flashlight to search the area.

No evidence indicated that any other pedestrians or drivers were

on the grounds of the church or even in the Bethel area during

the time the location of appellant's arrest was unattended.

     For the foregoing reasons, we hold that the evidence was

sufficient to support appellant's conviction for possession of

cocaine, and we affirm the conviction.   However, due to the

clerical error in the conviction and sentencing orders regarding

the offense for which appellant was convicted, see supra footnote

1, we remand this matter to the trial court for the sole purpose

of amending the conviction and sentencing orders to reflect that

appellant was convicted under Code § 18.2-250 rather than Code

§ 18.2-248.

                                         Affirmed on the merits
                                         and remanded with
                                         instructions.




                               - 8 -
Benton, J., with whom Fitzpatrick, C.J., joins, dissenting.

     To support a conviction based upon constructive possession

of drugs, "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 [the accused's] dominion and control."   Powers v.

Commonwealth, 227 Va. 474, 476, 316 S.E.2d 739, 740 (1984).

Furthermore, the principle is well established in Virginia that

whenever "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) (quoting Inge v. Commonwealth,

217 Va. 360, 366, 228 S.E.2d 563, 567 (1976)).   Applying these

principles, the Supreme Court has ruled that "circumstances of

suspicion, no matter how grave or strong, are not proof of guilt

sufficient to support a verdict of guilty . . . [because the]

actual commission of the crime by the accused must be shown by

evidence beyond a reasonable doubt to sustain . . . [a]

conviction."   Clodfelter v. Commonwealth, 218 Va. 619, 623, 238

S.E.2d 820, 822 (1977).

     The evidence proved that Shuron Maurice Barksdale initially

encountered the officers at a roadblock where they were checking

driving documents.   When a deputy sheriff asked for Barksdale's

driver's license and registration, Barksdale said he was eighteen



                               - 9 -
years old and did not have a driver's license.   Seeing beer in

the automobile, the deputy told Barksdale to drive to the

roadside where another officer was giving "sobriety" tests.     At

that time, the deputy had not learned Barksdale's name.

Barksdale disregarded the deputy's instructions, accelerated his

automobile, and drove away.

     The deputy and the officer who had been giving "sobriety"

tests followed Barksdale.   At the intersection of two highways,

Barksdale abandoned the automobile and ran.   The officer chased

Barksdale on foot from a grocery store to a church yard, across

the highway.   The officer testified that Barksdale kept his right

hand inside his pants while he was running.   However, the

evidence does not prove whether the teenager was holding up his

pants or engaging in some other activity.   The officer did not

see any item in Barksdale's hands and also testified that

Barksdale made no throwing motions.
     The officer caught Barksdale in the church yard and put

Barksdale on the ground with his face down.   A utility light

illuminated the parking lot "but [it was] . . . kind of hard to

see" in the grassy area beside the church's parking lot where

Barksdale was stopped.   After the officer put handcuffs on

Barksdale, using force to get Barksdale's right wrist behind him,

he searched Barksdale and waited for the deputy to arrive.    The

search revealed no items on Barksdale.   The deputy testified that

when he arrived at the place where the officer had detained

Barksdale, Barksdale was "laying on the ground . . . pretty close



                              - 10 -
to the sidewalk but not far from the bush which is at the corner

of the church."

     Both the deputy and the officer took Barksdale to a police

vehicle.   The deputy and the officer then obtained a flashlight

and returned ten minutes later to search the area where Barksdale

was apprehended.    The officer said the deputy found "a piece of

paper that was balled up in a knot" at the place where Barksdale

was in the grass.   The deputy who found the item testified that

he saw a folded piece of paper "on the edge of the parking lot."

The deputy recalled that the folded paper was "not crumbled in a

ball" but he could not recall if the folded paper was in the

grass.    When the officers examined the paper, they discovered it

was a twenty-dollar bill with a white residue, which was later

determined to be cocaine.
     No evidence proved that Barksdale actually possessed the

twenty-dollar bill containing cocaine residue.   The

Commonwealth's suggestion that Barksdale had something in his

hand during the chase is purely speculative.   No evidence proved

Barksdale ever had anything in his hand.   The officer who chased

and captured Barksdale testified that he did not see any item in

Barksdale's hand.   The deputy first saw the money in the grass

when he returned to the area to search it.   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



                               - 11 -
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) (quoting Simmons v. Commonwealth, 208 Va.

778, 783, 160 S.E.2d 569, 573 (1968)).    "To justify conviction of

a crime, it is insufficient to create a suspicion or probability

of guilt."   Moore v. Commonwealth, 254 Va. 184, 186, 491 S.E.2d

739, 740 (1997).

     The lack of evidence proving that Barksdale possessed any

item in his hand is a "fatal gap in the circumstantial evidence,"
Gordon v. Commonwealth, 212 Va. 298, 301, 183 S.E.2d 735, 737

(1971), and manifestly establishes that the evidence in this case

was insufficient to prove beyond a reasonable doubt that

Barksdale ever possessed the money containing cocaine residue.

The facts in Gordon established that a police officer saw Gordon

retrieve "a brownish color, manila color envelope" from between

bushes and a concrete fence.     Id. at 299, 183 S.E.2d at 736.

After Gordon began to run, the officer chased him and saw that he

was still carrying the envelope.    During the chase, Gordon

discarded the envelope.   While the officer was capturing and

arresting Gordon, another officer found an envelope containing

heroin on the route of the chase.    The arresting officer

testified that the envelope "was the 'same color, size and shape'

as the envelope which he had seen Gordon pick up [and hold]."
Id. at 300, 183 S.E.2d at 736.     Although the arresting officer

saw Gordon retrieve and run with an envelope that was identical



                               - 12 -
to the envelope that contained the drugs, the Supreme Court held

that the trier of fact impermissibly drew an inference that

Gordon had possessed the envelope that was recovered.    Id.

     The majority believes Gordon does not require a reversal of

Barksdale's conviction because the cocaine was not found at a

point along Barksdale's escape route or at a place where other

persons had access during the "relevant time period."   I

disagree.   The majority assumes as fact that Barksdale was

carrying something in his hand.   However, the assumption that

Barksdale had something in his hand is based on pure speculation

and conjecture.   It is not a fact proved beyond a reasonable

doubt.   As was the case in Gordon, "the fatal gap in the
circumstantial evidence" exists precisely because the

Commonwealth failed to prove Barksdale ever possessed the

incriminating item.   Absent proof that Barksdale possessed the

twenty-dollar bill, the evidence establishes only that the bill

with the cocaine was found at a point along Barksdale's escape

route.

     The suggestion that the "relevant time period" is limited to

the moment Barksdale was arrested restricts the "relevant time

period" to exclude consideration of the circumstances surrounding

Barksdale's arrest and ignores evidence that is both in the

record and inconsistent with guilt.    The unchallenged testimony

proved that the twenty-dollar bill was found near a bush adjacent

to a parking lot.   The parking lot was at a "fairly well

travelled" intersection, directly across the road from a grocery


                              - 13 -
store.    The evidence does not exclude the reasonable inference

that the twenty-dollar bill was ejected either intentionally or

accidentally by someone using the parking lot.   By ignoring the

clear evidence that others had access to the grounds and parking

lot where the arrest occurred, the majority impermissibly

relieves the Commonwealth of its burden to "'exclude every

reasonable hypothesis of innocence.'"    Garland, 225 Va. at 184,

300 S.E.2d at 784.

     The relevant difference between Gordon and this case is

immediately apparent and redounds in favor of reversing this

conviction.   In Gordon, the accused was seen holding a package
identical to the package that was found on his route of flight.

Thus, the facts in Gordon, even though insufficient to prove

possession, at least proved that Gordon had in his hand an item

similar to the package containing drugs.   The hypothesis in this

case of Barksdale's possession is purely speculative.

Significantly, the Court in Gordon discussed favorably State v.

Chavis, 154 S.E.2d 340 (N.C. 1967), where the evidence was

insufficient to prove the accused possessed narcotics found on a

hat in a vacant field of high grass where the accused walked.

The officers "positively identified" the hat as one the accused

had worn seconds earlier.    See Gordon, 212 Va. at 301, 183 S.E.2d

at 737.   If those facts provided an insufficient foundation to

prove possession, certainly the majority's assumption that

Barksdale possessed the twenty-dollar bill even though the

officer testified that he saw nothing in Barksdale's hand, is not



                               - 14 -
only unreasonable, it is based on pure speculation.    See also

Craig v. Commonwealth, 215 Va. 260, 262, 208 S.E.2d 744, 746

(1974) (holding that an officer's suspicion that a bag of

marijuana was thrown from a truck when the truck stopped at the

bag's location was "not sufficient to . . . exclude all

reasonable conclusions inconsistent with . . . guilt").

     In support of its hypothesis that Barksdale must have

possessed the cocaine, the Commonwealth emphasizes Barksdale's

flight.   The explanation for Barksdale's flight, however, is just

as likely found in the genesis of his initial contact with the

police.   Barksdale had been stopped at a roadblock; he had no

license; he was a minor in possession of beer; and he had been

directed to a place where an officer would check his sobriety.

Furthermore, the deputy who stopped Barksdale at the roadblock

did not have his name.   Barksdale's flight is equally explained

as an attempt to avoid the consequences of driving without a

license and while intoxicated.   Evidence that is equally

susceptible to two interpretations, one of which is consistent

with the accused's innocence of the charged offense, cannot be

arbitrarily used to support the interpretation that incriminates

the accused of the charged offense.    See Harrell v. Commonwealth,

11 Va. App. 1, 11, 396 S.E.2d 680, 685 (1990).

     The hypothesis that Barksdale did not possess the cocaine

flows inexorably from the evidence.    The twenty-dollar bill was

found near a bush by a parking lot, directly across the road from

a grocery store.   The officer testified that the intersection



                              - 15 -
where the parking lot is located is "fairly well travelled."

Although the majority notes that no evidence proved the area was

"a high crime area," narcotics use in this country is not limited

to "high crime area[s] or . . . open air drug market[s]."     Sadly,

it exists in all communities, rural and urban.   Moreover, the

testimony of the deputy, that the money was carefully folded,

makes it as likely that the money was deliberately placed there

for later retrieval, as the testimony, that the money was

crumpled, makes it likely that it was inadvertently discarded as

trash by someone using the parking lot.   In short, only by

conjecture can it be concluded that the twenty-dollar bill was

not discarded by someone else either as trash or to be later

retrieved.   This was not a bundle or bag of cocaine; it was

residue found on paper money discarded next to a parking lot.
     For these reasons, I would hold that the evidence was

insufficient to support the conviction.   Thus, I would reverse

the conviction and dismiss the indictment.




                              - 16 -
