                  COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Agee and Senior Judge Hodges
Argued at Chesapeake, Virginia


WALLACE L. WILSON, III
                                           MEMORANDUM OPINION * BY
v.   Record No. 1072-00-1                   JUDGE G. STEVEN AGEE
                                                MARCH 13, 2001
COMMONWEALTH OF VIRGINIA


         FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
                    Von L. Piersall, Jr., Judge

          Joseph R. Winston, Special Appellate Defender
          (Public Defender Commission, on brief), for
          appellant.

          Leah A. Darron, Assistant Attorney General
          (Mark L. Earley, Attorney General, on brief),
          for appellee.


     Wallace L. Wilson, III (defendant) was convicted and

sentenced in the Circuit Court of the City of Portsmouth for

possession of a firearm while in possession of cocaine in

violation of Code § 18.2-308.4, possession of cocaine with

intent to distribute in violation of Code § 18.2-248 and

obstruction of justice in violation of Code § 18.2-460(C).     He

appeals those convictions averring that the evidence was

insufficient to support the convictions.




     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
     For the reasons set forth below, we affirm the convictions

for possession under Code §§ 18.2-308.4 and 18.2-248, but

reverse the conviction for obstruction of justice.

                                I.

     On the evening of November 4, 1999, Portsmouth Police

Officer R.G. Suggs was on routine patrol when he observed the

defendant driving a vehicle with a broken taillight.    The

defendant and his passenger parked, exited the car and began

walking away when Officer Suggs pulled in behind the vehicle.

     Officer Suggs told the defendant that he intended to run a

status check on the defendant's driver's license.    The defendant

did not have his license, but verbally provided Officer Suggs

with a name, birth date and social security number.

     Officer Suggs' computer check came back "not on file," and

the defendant replied that Officer Suggs had gotten his

information wrong.   As Officer Suggs was obtaining additional

information from the defendant for another check, Officer W.G.

Culpepper arrived and walked to the passenger side of the

defendant's vehicle.   Officer Culpepper shined his flashlight

through the vehicle's window and observed, in plain view, on top

of the ashtray, a folded dollar bill and a red straw.   Officer

Culpepper also detected, from his view, a residue on the

observed item that he concluded to be cocaine or heroin.

     Officer Culpepper asked the defendant if the "heroin straw"

belonged to him, and the defendant responded that the "cocaine

                               - 2 -
straw" belonged to his passenger who had earlier left the area

at Officer Suggs' request.   The defendant then agreed to allow

Officer Culpepper to search the vehicle.

     Officer Culpepper proceeded to the driver's side of the

car, shined his light inside and observed the open end of a

plastic bag under the front seat armrest.   The bag was right

beside the driver's seat opened toward the driver.    Just as

Officer Culpepper leaned inside the car and grabbed the plastic

bag, the defendant "took off running."   Officers Suggs and

Culpepper pursued the defendant, apprehending him after a

quarter mile chase.

     When Officer Culpepper returned to the vehicle, he found

that the observed bag contained a large chunk of cocaine and two

other bags with a smaller amount of cocaine powder.   The officer

also found, underneath the cocaine bag, a loaded handgun.     A

subsequent search of the defendant's person revealed $84 in cash

and a razor blade.    In addition, Officer Suggs determined that

the vehicle did not belong to the defendant, however it had not

been reported stolen.

     At trial, an expert testified that the chunk of cocaine

weighed 3.5 grams, with a street value of $350, and the cocaine

powder had a total weight of 1 gram with a street value of $100.

The expert also testified that the circumstances of the case

were inconsistent with personal use.



                                - 3 -
     The defendant testified that he knew nothing about the gun,

the dollar bill, the straw or the cocaine.   He knew his

passenger by his first name, but had no personal relationship

with him.   He claimed he did not know the location of the

passenger at the time of trial.

     The defendant further testified that he told Officer

Culpepper that the "cocaine straw" was not his, but denied

telling him it belonged to his passenger.    He testified he did

not see the "cocaine straw" as he exited the car and that his

passenger remained in the car several seconds after his exit.

The defendant testified that Officer Suggs was mistaken when he

testified that the defendant and the passenger had exited the

car at the same time.

     The defendant also testified that he fled because he had a

suspended driver's license.   He admitted, however, that he did

not run until Officer Culpepper had leaned into the car to

retrieve the observed bag.

                                  II.

     When the sufficiency of the evidence is challenged, we

consider all the evidence, and any reasonable inferences fairly

deducible therefrom, in the light most favorable to the party

that prevailed at trial, which is the Commonwealth in this case.

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

537 (1975).   Witness credibility, the weight accorded the

testimony and the inferences to be drawn from proven facts are

                               - 4 -
matters to be determined by the fact finder.    See Long v.

Commonwealth, 8 Va. App. 194, 199, 379 S.E.2d 473, 476 (1989).

A trial court's judgment is not to be disturbed on appeal unless

it is plainly wrong or without evidence to support it.      See Code

§ 8.01-680.

     It is well-established that circumstantial evidence is just

as competent and 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).     The

Commonwealth's evidence, however, need not affirmatively

disprove all theories which might negate the conclusion that the

defendant committed the crimes; the conviction will instead be

sustained if the evidence excludes every reasonable hypothesis

of innocence.    Higginbotham, 216 Va. at 353, 218 S.E.2d at 537.

Whether an alternative hypothesis of innocence is reasonable is

a question of fact, binding on appeal unless plainly wrong.

Archer v. Commonwealth, 26 Va. App. 1, 12-13, 492 S.E.2d 826,

831-32 (1997).

     To convict someone of illegal possession of illicit drugs,

the Commonwealth must prove the defendant was aware of the

presence and character of the drug and that he consciously

possessed it.    Andrews v. Commonwealth, 216 Va. 179, 182, 217

S.E.2d 812, 814 (1975).   However, actual possession of the

controlled substance is not required; constructive possession

                                - 5 -
will suffice.   The "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"

prove constructive possession.     Drew v. Commonwealth, 230 Va.

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

     Possession of significant sums of cash and drugs, items

routinely classified as tools of the drug trade, the manner in

which the drugs are packaged and testimony that the quantity and

packaging of the drugs in question is consistent with dealing in

the local drug trade are all significant factors when

determining whether the evidence supports a finding of both

possession and an intent to distribute.     White v. Commonwealth,

24 Va. App. 446, 452-53, 482 S.E.2d 876, 879 (1997) (citations

omitted).   It is "universally conceded that the fact of an

accused's flight . . . and related conduct, are admissible as

evidence of consciousness of guilt, and thus of guilt itself."

Langhorne v. Commonwealth, 13 Va. App. 97, 102, 409 S.E.2d 476,

480 (1991).

     "[P]roof that a person is in close proximity to contraband

is a relevant fact that, depending on the circumstances, may

tend to show that, as an owner or occupant of property or of a

vehicle, the person necessarily knows of the presence, nature

and character of a substance that is found there."     Burchette v.

Commonwealth, 15 Va. App. 432, 435, 425 S.E.2d 81, 83 (1992).

                                 - 6 -
     In the instant case, the bag containing drugs was opened

toward the driver's side of the car, the defendant was in

possession of cash and a razor blade, and identified the straw

found by Officer Culpepper as a "cocaine straw."    Moreover, the

defendant ran from the scene contemporaneous with Officer

Culpepper leaning into the car close to the items located under

the armrest.   "Flight following the commission of a crime is

evidence of guilt . . . ."     Clagett v. Commonwealth, 252 Va. 79,

93, 472 S.E.2d 263, 271 (1996).

     Furthermore, the gun was found in the same location as the

drugs.   "[F]irearms are recognized as tools of the drug trade,

the possession of which are probative of intent to distribute."

Glasco v. Commonwealth, 26 Va. App. 763, 775, 497 S.E.2d 150,

156 (1998), aff'd, 257 Va. 433, 513 S.E.2d 137 (1999).

     From the totality of these circumstances, the trial judge

could conclude beyond a reasonable doubt that the defendant

constructively possessed the drugs with the intent to distribute

and the gun in conjunction with the drugs.

                                 III.

     The defendant was also indicted and convicted under the

felony obstruction of justice statute, Code § 18.2-460(C).    This

statute provides inter alia:

           If any person by threats of bodily harm or
           force knowingly attempts to intimidate or
           impede a . . . law enforcement officer . . .
           or to obstruct or impede the administration


                                 - 7 -
          of justice in any court . . . he shall be
          guilty of a Class 5 felony.

Code § 18.2-460(C) (emphasis added).

     The Commonwealth argued on brief that the incorrect

information allegedly given by the defendant to Officer Suggs

was sufficient to convict him under subsection (A) of Code

§ 18.2-460, the misdemeanor provision which requires that a

person "knowingly obstructs . . . a law enforcement officer."

However, the defendant was convicted under the felony provision,

subsection (C), not the misdemeanor provision.    Notwithstanding

that the Commonwealth's argument goes to the wrong statute, it

would fail in any event under Ruckman v. Commonwealth, 28 Va.

App. 428, 505 S.E.2d 388 (1998).

     Ruckman holds that conflicting or incorrect statements to

the investigating officer do not "obstruct" the officer in the

performance of his duties as contemplated by Code § 18.2-460(A).

Id. at 431, 505 S.E.2d at 390.     As the defendant's alleged

statements to Officer Suggs would not sustain a conviction under

the misdemeanor subsection, then ä fortiori Ruckman bars a

conviction under the felony provision of Code § 18.2-460(C) for

similar acts.

     The felony provision requires "threats of bodily harm or

force" by the defendant to prove obstruction of justice.    The

Commonwealth argues the defendant's flight from the scene is

such an action.   This contention is plainly wrong as the


                                 - 8 -
long-standing precedent of Jones v. Commonwealth, 141 Va. 471,

126 S.E. 74 (1925), reveals:   "to escape an officer by running

is not such an obstruction as the law contemplates."   Id. at

478, 126 S.E. at 75-76.

     The record being devoid of any evidence that the defendant

"by threats of bodily harm or force knowingly attempted to

intimidate or impede the officers," there is clearly no evidence

to support the conviction of obstruction of justice.

                                IV.

     The defendant's convictions under Code § 18.2-308.4 and

Code § 18.2-248 are hereby affirmed.   The conviction under Code

§ 18.2-460(C) is hereby reversed and dismissed.

                                              Affirmed in part,
                                              reversed in part.




                               - 9 -
Benton, J., concurring and dissenting.

     I concur in Part III of the opinion reversing the

conviction for obstruction of justice.       I dissent from Part II

of the opinion and, for the reasons that follow, I would reverse

the convictions for possession of cocaine with intent to

distribute and possession of the firearm.

     Code § 18.2-250 is very explicit.       "Upon the prosecution of

a person [for possession of a controlled substance], ownership

or occupancy of . . . [a] vehicle upon or in which a controlled

substance was found shall not create a presumption that such

person either knowingly or intentionally possessed such

controlled substance."   Id.   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 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."   Powers v. Commonwealth, 227 Va. 474,

476, 316 S.E.2d 739, 740 (1984).

          [W]ell established principles apply to
          testing the sufficiency of circumstantial
          evidence.

          *      *       *      *        *        *      *

             "[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

                               - 10 -
             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) (citations omitted).

     The evidence proved that the vehicle Wallace L. Wilson was

driving was not his vehicle and was not stolen.    Officer Suggs

testified that Wilson and another man exited the vehicle after

it stopped.    Officer Suggs could not see inside the vehicle

before it stopped and, therefore, had no basis to know who owned

or handled the items later found in the vehicle.    Officer Suggs

did not testify that the other man exited the vehicle before

Wilson.   The other man walked away after Officer Suggs ordered

him to do so.

     No evidence proved whether the vehicle belonged to the

other man.    The evidence does prove, however, that when Officer

Suggs told Wilson that he needed to speak to him about the


                                - 11 -
vehicle's broken lens, the other man attempted to speak to

Officer Suggs.   Officer Suggs told the other man to leave

without ascertaining whether he owned the vehicle.     Obeying

Officer Suggs, the other man walked away.

       When Officer Culpepper arrived and looked in the vehicle,

the other man was not present.   In response to the officers'

inquiry, Wilson said that he had no drugs or weapons.     Officer

Culpepper testified that he looked in the vehicle and saw a

straw in the ashtray.   When he asked Wilson "if that was his

heroin straw in the ashtray," Wilson denied that it was his and

said it belonged to the other man.      At Officer Culpepper's

request, Wilson gave the officers permission to search the

vehicle.

       No evidence proved that Wilson knew the bag of cocaine was

under the armrest or knew the gun was under the bag under the

armrest.   Indeed, Wilson's statements to the officers were that

he was unaware of any drugs or weapons in the vehicle.     Officer

Culpepper first searched the car and saw the bag when he used

his search light to illuminate the car.     Later, Officer Suggs

discovered the gun from under the same armrest that covered the

bag.   No evidence proved Wilson was aware of those items.       "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,

                               - 12 -
17 Va. App. 572, 574, 439 S.E.2d 863, 864 (1994).   The fact that

the bag was "opened toward" the driver's side is as consistent

with the other man holding the bag and placing it under the

armrest as it is with Wilson placing it.   Moreover, no evidence

excludes the hypothesis it was left there by the owner of the

vehicle.

       Wilson told the officers that the straw in the ashtray

belonged to the other man.    He denied that he had drugs or

contraband and allowed the officer to search.   Wilson's

statements denying ownership clearly are not evidence tending to

show that he exercised dominion and control over the straw with

cocaine or the other items.    See Wright v. Commonwealth, 217 Va.

669, 670-71, 232 S.E.2d 733, 733-34 (1977).   Likewise,

permitting a search of the vehicle is not conduct that evidences

guilt.   As in Jones, where the accused did not possess the items

and was only in proximity to them, the trier of fact could

attribute those items to Wilson "[o]nly by drawing an

impermissible inference of knowledge from [Wilson's] mere

proximity to [those items]."   17 Va. App. at 574, 439 S.E.2d at

864.

       Although the law clearly indicates that flight may be

conduct that evidences guilt, the record in this case proves

that Wilson had other reasons to cause him to flee.   He was

driving without a license, and he had been confronted with

discovery of the other man's cocaine straw in the vehicle.

                               - 13 -
Under these circumstances, the inference to be drawn from his

flight is equivocal.     Such evidence is not wholly consistent

with guilt of the charged offense and wholly inconsistent with

innocence of that offense.      See Scruggs v. Commonwealth, 19 Va.

App. 58, 61, 448 S.E.2d 663, 664 (1994).

     Even if it is probable that the drugs and the gun found in

the vehicle belonged to Wilson, probability of guilt is

insufficient to warrant a criminal conviction.      Crisman v.

Commonwealth, 197 Va. 17, 21, 87 S.E.2d 796, 799 (1955).

Suspicious circumstances "'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.'"      Id. (quoting Powers v. Commonwealth, 182 Va. 669,

676, 30 S.E.2d 22, 25 (1944)).     Suspicious circumstances alone

are not sufficient to prove knowing possession of a controlled

substance.   Id.

     "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 v. Commonwealth, 24 Va. App. 401, 414, 482

S.E.2d 853, 859 (1997) (citation omitted).     The evidence does

not exclude the hypothesis that the drugs and the gun were put

under the armrest by the other man or the owner of the vehicle,

                                 - 14 -
who may have been the other man.   Moreover, no evidence proved

that Wilson was aware of the presence of those items.   "Because

there exists a hypothesis of innocence consistent with the

circumstantial evidence in this case, we [must] reverse the

conviction for possession [of the gun and] of cocaine with

intent to distribute and dismiss the indictment."   Scruggs, 19

Va. App. at 62-63, 448 S.E.2d at 665-66.




                             - 15 -
