                    COURT OF APPEALS OF VIRGINIA


Present: Judges Baker, Benton and Bray
Argued at Richmond, Virginia


LANETTA TORIAN
                                         MEMORANDUM OPINION * BY
v.   Record No. 1770-96-2              JUDGE JAMES W. BENTON, JR.
                                              MAY 27, 1997
COMMONWEALTH OF VIRGINIA


              FROM THE CIRCUIT COURT OF HALIFAX COUNTY
                  Charles L. McCormick, III, Judge
            Amy M. Curtis (Theodore N. I. Tondrowski;
            Bowen & Bowen, P.C., on brief), for
            appellant.

            Robert H. Anderson, III, Assistant Attorney
            General (James S. Gilmore, III, Attorney
            General, on brief), for appellee.



      Lanetta Torian was convicted of possession of cocaine with

intent to distribute.   She contends that the evidence was

insufficient to support the conviction.   We agree and reverse the

conviction.

                                 I.

      The undisputed evidence proved that officers of the South

Boston Police Department entered a residence at 1907 Spring

Avenue with a warrant to search for narcotics.     The property was

leased to Jane Jeffreys, the mother of Michael and James

Jeffreys.   Michael Jeffreys, James Jeffreys, and eight other

people were in the residence.

      Lovelle Jenkins was in the northwest bedroom.     The police
      *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
found in that room a loaded Larson .380 caliber pistol under the

bed mattress and a plastic bag containing eleven smaller bags of

marijuana in the middle of the floor.   The police saw men's

clothing hanging in the closet and found six small bags of

marijuana in a jacket hanging in the closet.   In James Jeffreys'

wallet, the police found a receipt for the gun.

     In the southwest bedroom, the police found in the nightstand

a document listing "people who owe Michael money."   Under the

mattress they found a digital scale with cocaine residue.    Men's

clothing was hanging in the closet.
     James Jeffreys, Lawanda Chandler, and a small infant were

sitting on the bed in the northeast bedroom.   In that room, the

police found lying on the floor an Advil bottle that contained

rocks and crumbs of cocaine.   In a nightstand about six feet from

the bottle were several documents indicating that Torian's

address was 1907 Spring Avenue.   Women's clothing was found in

this bedroom.

     When the police arrived, Torian was in the residence but not

in any of the bedrooms.   About twenty minutes after the police

entered the northeast bedroom and discovered the Advil bottle,

Torian entered the room accompanied by a female officer.    The

police officer who was searching the room testified, "I think she

got some clothes."

     On this evidence, the trial judge found Torian guilty of

possession of cocaine with intent to distribute.   Torian was




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sentenced to 5 years in the penitentiary, with all but 7 months

suspended, and fined $500.

                                 II.

     "The burden was on the Commonwealth to prove beyond a

reasonable doubt that [Torian] 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 is based upon constructive possession, the

evidence must prove "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 [her] 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 evidence proved that Torian was aware of the presence of

cocaine in the residence or that she exercised control over any

drugs in the residence.    See Drew v. Commonwealth, 230 Va. 471,

338 S.E.2d 844 (1986).    No evidence proved that she had been in

the northwest or southwest bedrooms where police found cocaine



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and men's clothing.

     In the northeast bedroom where the police found the Advil

bottle containing cocaine, the police found an adult female and

James Jeffreys, whose mother was the lessee.   The Advil bottle

was found on the floor in their presence.   The evidence does not

exclude the hypothesis that one of them discarded the Advil

bottle onto the floor as the police entered the residence.

     At most, the evidence creates a suspicion that Torian was

aware of the presence of the cocaine.   "Suspicion, however, no

matter how strong, is insufficient to sustain a criminal

conviction."   Stover v. Commonwealth, 222 Va. 618, 624, 283

S.E.2d 194, 197 (1981).   Accordingly, we reverse the judgment and

dismiss the indictment.

                                         Reversed and dismissed.




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