                   COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Coleman and Lemons ∗
Argued at Richmond, Virginia


JAMES TYRONE McCRAY
                                           MEMORANDUM OPINION ∗∗ BY
v.   Record No. 0200-99-2                JUDGE JAMES W. BENTON, JR.
                                                MARCH 21, 2000
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                    Margaret P. Spencer, Judge

          Patricia P. Nagel, Assistant Public Defender
          (David J. Johnson, Public Defender, on
          brief), for appellant.

          H. Elizabeth Shaffer, Assistant Attorney
          General (Mark L. Earley, Attorney General,
          on brief), for appellee.


     The trial judge convicted James Tyrone McCray for possession

of cocaine.   See Code § 18.2-250.   On appeal, McCray contends the

trial judge erred (1) in permitting joinder of his trial with the

trial of a codefendant and (2) in finding the evidence sufficient

to prove beyond a reasonable doubt that he possessed cocaine.   For

the reasons that follow, we reverse the conviction.




     ∗
       Justice Lemons participated in the hearing and decision of
this case prior to his investiture as a Justice of the Supreme
Court of Virginia.
     ∗∗
       Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
                                 I.

     McCray and James Gregory were arrested and charged with

possession of a piece of crack cocaine that the police found in

the center console of Gregory's automobile.   Prior to trial, the

prosecutor filed a motion to join the trials of McCray and

Gregory.   In the motion and at the hearing on the motion, the

prosecutor asserted that the offenses occurred at the same time

and place, that the transaction was the same, that the evidence

was the same, and that McCray and Gregory acted in concert in the

offense.   Opposing the motion, McCray's counsel argued, in part,

as follows:

           [T]here is a Bruton [v. United States, 391
           U.S. 123 (1968),] issue in this particular
           case, because we have a statement by
           [Gregory] that is not otherwise admissible
           against [McCray] that implicates [McCray].
           It's not a declaration against interest, so
           it is not going to be able to come in, in
           any other hearsay objection. I think
           because of the potential Bruton violation,
           there would be prejudice to [McCray] to be
           tried at the same time.

Finding "good cause," the trial judge granted the motion.      The

trial judge ruled, however, as follows:

           There will be no Bruton statements admitted
           at trial. If the Commonwealth intends to
           introduce them and an objection is made, the
           Court will sustain that objection.

     At the joint trial, Officer Sybil El-Amin testified that

during daylight she saw McCray exchange money with another man

as McCray stood beside an automobile.   Before entering the


                               - 2 -
passenger side of the automobile, McCray looked in the direction

of the officer's marked police vehicle.    The officer drove

around the block and then followed the automobile as it moved

away.    Seeing "a rejection [inspection] sticker" on the

automobile, the officer activated her emergency lights to make a

traffic stop.    The officer then "called in" the stop and

requested another police unit.    While communicating with her

dispatcher, the officer noticed that the upper portion of

McCray's body was moving back and forth and side-to-side.

        The officer then walked to the passenger side of the

automobile and told McCray to exit the automobile.    The officer

"pat[ted] him down" and told him to stand at the rear of the

automobile.    The officer then spoke to Gregory, who was the

driver.    Gregory gave the officer consent to search his

automobile.

        The officer testified that the automobile had a center

console, which "was a bucket" that fit "over the hump in the

center of the seat."    She further testified that it was "closer

to . . . McCray's side than it was to . . . Gregory's side."

During her search, the officer saw six or seven lottery tickets

at the bottom of the "center console of the [automobile]."

Among those tickets, she found a piece of cocaine about the size

of "a pencil eraser" wrapped inside a folded lottery ticket.

        The officer did not ask Gregory to whom the lottery tickets

belonged.    Gregory "did not say they belonged to him"; however,

                                 - 3 -
he did say "he knew who they belonged to."   The trial judge

sustained McCray's objection to several statements the officer

attributed to Gregory.

     After finding the cocaine, the officer directed "the other

police unit to place . . . McCray in handcuffs and . . . McCray

tried to run."   When the officer took McCray to the police

station, she heard McCray tell "Gregory that he better not tell

them -- you better not say the drugs are mine."   Although she

could not "remember the exact wording," she also heard McCray

say "you know what's going to happen if you say -- something to

that effect."    She acknowledged that McCray told Gregory "you

better not say those drugs were mine, you better not lie on me,

things along that line."

     The trial judge acquitted Gregory and convicted McCray of

possession of the cocaine.   This appeal followed.

                                 II.

     "To sustain a conviction for possession of a controlled

substance in violation of Code § 18.2-250, the evidence must

prove beyond a reasonable doubt that the accused was aware of

the presence and character of the controlled substance."      Jones

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

(1994).   When the Commonwealth seeks to prove beyond a

reasonable doubt that an accused constructively possessed a

controlled substance, "the Commonwealth must point to evidence

of acts, statements, or conduct of the accused or other facts or

                                - 4 -
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."   Drew v. Commonwealth, 230

Va. 471, 473, 338 S.E.2d 844, 845 (1986) (citation omitted).

     Because the Commonwealth relied upon circumstantial

evidence, we are governed by the following principles:

          [W]ell established principles apply to
          testing the sufficiency of circumstantial
          evidence. In LaPrade v. Commonwealth, 191
          Va. 410, 418, 61 S.E.2d 313, 316 (1950),
          [the Supreme Court] summarized those
          principles as follows:

          ". . . [I]f the proof relied upon by the
          Commonwealth is wholly circumstantial, as it
          here is, then to establish guilt beyond a
          reasonable doubt all necessary circumstances
          proved must be consistent with guilt and
          inconsistent with innocence. They must
          overcome the presumption of innocence and
          exclude all reasonable conclusions
          inconsistent with that of guilt. To
          accomplish that, the chain of necessary
          circumstances must be unbroken and the
          evidence as a whole must satisfy the guarded
          judgment that both the corpus delicti and
          the criminal agency of the accused have been
          proved to the exclusion of any other
          rational hypothesis and to a moral
          certainty. . . ."

          But, circumstances of suspicion, no matter
          how grave or strong, are not proof of guilt
          sufficient to support a verdict of guilty.
          The actual commission of the crime by the
          accused must be shown by evidence beyond a
          reasonable doubt to sustain his conviction.

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

822 (1977).




                              - 5 -
                               III.

     The evidence proved that the piece of cocaine was wrapped

in a lottery ticket that was among other lottery tickets at the

bottom of the "console" of Gregory's automobile.     No evidence

proved that McCray put the cocaine there or was aware of its

presence inside the wrapped lottery ticket.     Indeed, the officer

testified that the cocaine was not in plain view.

     Although the officer saw McCray's upper body moving after

she stopped Gregory for having a rejection inspection sticker on

his automobile, that observation raises only a suspicion that

his movement bore a connection to the cocaine.     Likewise,

McCray's warning to Gregory not to tell a lie establishes no

inference that connects McCray to the cocaine.

     Although the trial judge acquitted Gregory of the

possession of the cocaine found in his automobile, that

circumstance did not prove McCray possessed the cocaine.       The

only evidence that did not require the trial judge to speculate

while assessing McCray's guilt or innocence was evidence of

opportunity.   Yet, it is well established that "mere opportunity

to commit an offense 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)).



                               - 6 -
     Because we hold that the evidence was insufficient to

support McCray's conviction, we need not address the joinder

issue.   Accordingly, we reverse the conviction and dismiss the

indictment.

                                       Reversed and dismissed.




                               - 7 -
