                    COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Clements and Agee
Argued at Richmond, Virginia


REGINA BROWN
                                           MEMORANDUM OPINION * BY
v.   Record No. 2875-00-2                   JUDGE G. STEVEN AGEE
                                               JANUARY 22, 2002
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                    James B. Wilkinson, Judge

          Craig W. Stallard, Assistant Public Defender
          (Patricia P. Nagel, Assistant Public
          Defender; Office of the Public Defender, on
          brief) for appellant.

          Steven A. Witmer, Assistant Attorney General
          (Randolph A. Beales, Attorney General, on
          brief), for appellee.


     Regina Brown (Brown) was convicted, after a bench trial, of

one count of possession of cocaine, in violation of Code

§ 18.2-250.    She was sentenced to serve seven months

incarceration.   On appeal, Brown contends that the trial court

erred in finding the evidence sufficient to establish that she

possessed the drugs.   For the following reasons, we agree and

reverse her conviction.




     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
                              BACKGROUND

     As the parties are fully conversant with the record in this

case and because this memorandum opinion carries no precedential

value, only those facts necessary to a disposition of this

appeal are recited.

     On May 30, 2000, at approximately 2:50 a.m., Officer Carter

of the Richmond Police Department observed Brown, the sole

occupant of the vehicle she was driving, park a car in front of

an apartment building.    The car's back license plate hung by one

screw.   Suspicious, Officer Carter "ran the tags" and discovered

the license plate was registered to another vehicle.

     When Brown returned to the car alone two minutes later,

Officer Carter detained her and asked for her driver's license.

A second officer arrived at the scene to assist Officer Carter.

The second officer walked around the car, looking inside.

Officer Carter asked if Brown had anything illegal in the car

and requested permission to perform a search.     Brown consented

to a search of the car.

     After the consent was given, the second officer informed

Officer Carter that he had noticed a short metal pipe and stem

in the ashtray as he peered inside the vehicle.     Officer Carter

then found the pipe and stem in the open ashtray which was in

the middle of the car's console.      Laboratory analysis of the

pipe found cocaine residue.


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     No evidence was introduced to establish the ownership of

the vehicle Brown occupied or the license plate attached to the

vehicle.   Other than the observation by Officer Carter when

Brown parked the vehicle, there was no evidence as to the period

of time Brown was in possession of the vehicle.   Officer Carter

testified he did not see Brown make any movement towards the

center of the console during the brief time he observed her.

There was no direct evidence that Brown was cognizant of the

metal pipe or its contents.

                              ANALYSIS

           Where the sufficiency of the evidence is
           challenged after conviction, it is our duty
           to consider it in the light most favorable
           to the Commonwealth and give it all
           reasonable inferences fairly deducible
           therefrom. We should affirm the judgment
           unless it appears from the evidence that the
           judgment is plainly wrong or without
           evidence to support it.

Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534,

537 (1975) (citation omitted).

     "In order to convict a defendant of 'possession' of a

narcotic drug . . . it generally is necessary to show that

defendant was aware of the presence and character of the

particular substance and was intentionally and consciously in

possession of it."   Ritter v. Commonwealth, 210 Va. 732, 741,

173 S.E.2d 799, 805 (1970).

           [P]ossession of a controlled substance may
           be actual or constructive. See Archer [v.
           Commonwealth], 225 Va. [416,] 418, 303
                             - 3 -
           S.E.2d [863,] 863 [(1983)]. "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.'" Drew v.
           Commonwealth, 230 Va. 471, 473, 338 S.E.2d
           844, 845 (1986) (quoting Powers v.
           Commonwealth, 227 Va. 474, 476, 316 S.E.2d
           739, 740 (1984)); see Eckhart v.
           Commonwealth, 222 Va. 447, 450, 281 S.E.2d
           853, 855 (1981).

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

(1987).   The Commonwealth argues that Brown's sole occupancy of

the car at the time of seizure proved Brown had knowledge of the

drugs in the vehicle, which were in plain view, and that they

were subject to her dominion and control.   We disagree.

     "Proof of constructive possession necessarily rests on

circumstantial evidence; thus, '"all necessary circumstances

proved must be consistent with guilt and inconsistent with

innocence and exclude every reasonable hypothesis of

innocence."'"   Burchette v. Commonwealth, 15 Va. App. 432, 434,

425 S.E.2d 81, 83 (1992) (citations omitted).   While it is a

circumstance that may be probative in determining whether an

accused possessed such drugs, mere proximity to contraband is

insufficient to establish possession.   Lane v. Commonwealth, 223

Va. 713, 716, 292 S.E.2d 358, 360 (1982).   Likewise,

"[o]wnership or occupancy of the vehicle in which the drugs are

found is . . . [simply] a circumstance probative of possession."
                             - 4 -
Glasco v. Commonwealth, 26 Va. App. 763, 774, 497 S.E.2d 150,

155 (1998) (citations omitted), aff’d, 257 Va. 433, 513 S.E.2d

137 (1999).   Thus, we 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).

     Proof by circumstantial evidence "'is not sufficient . . .

if it engenders only a suspicion or even a probability of

guilt.'"   Littlejohn v. Commonwealth, 24 Va. App. 401, 414, 482

S.E.2d 853, 859 (1997) (quoting Hyde v. Commonwealth, 217 Va.

950, 955, 234 S.E.2d 74, 78 (1977)).    "'"[A]ll necessary

circumstances proved must be consistent with guilt and

inconsistent with innocence and exclude every reasonable

hypothesis of innocence."'"     Betancourt v. Commonwealth, 26 Va.

App. 363, 373, 494 S.E.2d 873, 878 (1998) (quoting Stover v.

Commonwealth, 222 Va. 618, 623, 283 S.E.2d 194, 196 (1981)

(citation omitted)).    "When, from the circumstantial evidence,

'it is just as likely, if not more likely,' that a 'reasonable

hypothesis of innocence' explains the accused's conduct, the

evidence cannot be said to rise to the level of proof beyond a

reasonable doubt."     Littlejohn, 24 Va. App. at 414, 482 S.E.2d

at 859 (quoting Haywood v. Commonwealth, 20 Va. App. 562,

567-68, 458 S.E.2d 606, 609 (1995)).    The Commonwealth need not

"'exclude every possible theory or surmise,'" but it must

exclude those hypotheses "'which flow from the evidence


                               - 5 -
itself.'"     Cantrell v. Commonwealth, 7 Va. App. 269, 289-90, 373

S.E.2d 328, 338-39 (1988) (citation omitted).

     Here, the facts establish no more than a mere suspicion

that Brown possessed the drugs.    While Brown was in close

proximity to the drugs and was the sole occupant of the vehicle,

there is no evidence that she used the pipe or the drugs, or

that she knew of their presence.    There is no evidence Brown

ever saw the pipe or the cocaine remnants or exercised dominion

and control over them.    There was no evidence that Brown was

nervous, fidgety, or made furtive gestures toward the

contraband.    She made no statements indicating she was aware of

the presence and character of the drugs or the metal pipe.

     The evidence proved the loose license plate was registered

to another vehicle, but no evidence established the ownership of

the license plate.    There was no evidence Brown owned the car or

how long she had been driving it.    No evidence established that

she drove the car on a regular basis or whether she had ever

driven it before.    A hypothesis that someone else used the drugs

in the car and left the remnants in the ashtray without Brown's

knowledge is as consistent with the facts as her guilt.       See

Jones v. Commonwealth, 17 Va. App. 572, 574, 439 S.E.2d 863, 864

(1994).

     The Commonwealth's evidence failed to prove acts or conduct

from which the trial court could infer beyond a reasonable doubt

that Brown knowingly and intentionally possessed the items found
                            - 6 -
in the ashtray of the car she was driving.    As we held in

Burchette, "[this] evidence simply does not exclude the very

real possibility that . . . someone other than [Brown] used or

had access to the vehicle and had left the drugs there

unbeknownst to [her]. . . .   The evidence does not exclude every

reasonable hypothesis of innocence."   15 Va. App. at 438, 425

S.E.2d at 85.

     The Commonwealth failed to carry its burden of proof as to

the fundamental elements of knowledge and possession.    We,

therefore, reverse the conviction and enter final judgment

dismissing the indictment.

                                             Reversed and dismissed.




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