                       COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Elder and Bumgardner
Argued at Richmond, Virginia

VAN DERRICK TUCKER
                                           MEMORANDUM OPINION * BY
v.      Record No. 0348-97-2            JUDGE RUDOLPH BUMGARDNER, III
                                               JUNE 16, 1998
COMMONWEALTH OF VIRGINIA

             FROM THE CIRCUIT COURT OF THE CITY OF PETERSBURG
                       James F. D'Alton, Jr., Judge

               (Paul C. Bland; Beverly M. Murray, on brief),
               for appellant. Appellant submitting on
               brief.
               Ruth Ann Morken, Assistant Attorney General
               (Richard Cullen, Attorney General, on brief),
               for appellee.



        The defendant was charged with possession of cocaine with

the intent to distribute.      After a bench trial, he was found

guilty.      He appeals his conviction arguing that there was

insufficient evidence.      Finding that the evidence was sufficient

to support the conviction, we affirm.

        Officer E.S. Jones arrested the defendant by executing an

outstanding arrest warrant for a parole violation.      The defendant

tried to escape arrest, but the officer was able to overcome him.

 This officer placed handcuffs on the defendant, conducted a

quick pat-down search but did not check his back pockets, lower

legs, or shoes.      Another officer transported the defendant to

jail.       While driving him, the officer saw the defendant squirm

around and apparently try to get into his back pocket.         Nothing

        *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
was found in the vehicle where the defendant had been seated.

        The defendant was placed in a holding cell and watched by

two officers, Officer Jeanette Richardson and the officer who

transported him.    He was the only one in the cell.    At first he

was seated on a processing bench.    He kept moving around and was

told to be still.    He finally got up and walked ten to fifteen

feet to a desk and chair.    These were at the other end of the

cell at the point farthest from the officers.      When seated at the

desk, the defendant was partly out of the officers' sight.        While

there, the defendant appeared to be reaching into his right

pocket and messing with his shoes.       Richardson remarked to the

other officer that the defendant was trying to ditch something.

When Officer Jones arrived, the defendant's clothes were

disheveled, one pocket was pulled out, and his right shoe was

off.    The other officer had Jones check the area where the

defendant had been sitting.    In plain sight and within one to two

feet of where the defendant had been seated, Jones found cocaine.

Richardson had been in that area twenty minutes before, she had

sat where the defendant had been seated, and she saw no drugs

there then.    Only Jones and the defendant had been back in that

area.
        Where an appellant challenges the sufficiency of the

evidence, the evidence must be viewed in the light most favorable

to the Commonwealth, granting it all reasonable inferences fairly

deducible therefrom.     See Higginbotham v. Commonwealth, 216 Va.

349, 352, 218 S.E.2d 534, 537 (1975).      We may not disturb a

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verdict unless it was "plainly wrong or without evidence to

support it."     Stockton v. Commonwealth, 227 Va. 124, 145, 314

S.E.2d 371, 385 (1984).    On appeal this Court must "discard the

evidence of the accused in conflict with that of the

Commonwealth, and regard as true all the credible evidence

favorable to the Commonwealth and all fair inferences to be drawn

therefrom."     Wright v. Commonwealth, 196 Va. 132, 137, 82 S.E.2d

603, 606 (1954).
     From the evidence, the trial court could properly infer that

the defendant had the illegal drugs on his person.    When the

police arrested him, they did not thoroughly search the

defendant.    While being transported he appeared to be trying to

get into his pocket, but nothing was found where he was seated.

In the cell he moved away from the jailer and was partially

concealed.    He again appeared to be reaching into his pocket.

His clothes were disheveled, his pocket was pulled out, and his

shoe was off.    Immediately after he left the cell, the drugs were

found where he had been seated when acting strangely.    He had

been alone in the cell, and only twenty minutes before an officer

had looked at the area and seen nothing where the drugs were

found.   This evidence supports the inference that the drugs were

discarded by the defendant when he was finally able to remove

them from his person.

     Finding evidence to support the findings of the trial court,

we affirm.
                                                          Affirmed.

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Benton, J., dissenting.


      The majority concludes that the circumstances were

sufficient to permit an inference that Van Derrick Tucker

possessed the cocaine found in the holding cell.   I would reverse

the conviction because the evidence was insufficient to prove

beyond a reasonable doubt that Tucker constructively possessed

the cocaine.

      Because no evidence proved that Tucker was ever in actual

possession of the cocaine, the question is whether Tucker

constructively possessed the cocaine.   His proximity to the

twenty-three bags of cocaine is insufficient to prove beyond a

reasonable doubt that he constructively possessed them.     See

Clodfelter v. Commonwealth, 218 Va. 619, 623, 238 S.E.2d 820, 822

(1977).   In order to prove that Tucker constructively possessed

the cocaine, the Commonwealth was required to prove facts and

circumstances that indicated that Tucker was aware of the

presence of the cocaine and exercised dominion and control over

it.   Drew v. Commonwealth, 230 Va. 471, 473, 338 S.E.2d 844, 845

(1986).   Moreover, in order for circumstantial evidence to prove

guilt beyond a reasonable doubt, the evidence must be wholly

consistent with guilt and wholly inconsistent with innocence.

See Bishop v. Commonwealth, 227 Va. 164, 169, 313 S.E.2d 390, 393

(1984).

      Tucker fled when the officer approached to arrest him for a

parole violation.   After the officer caught Tucker and struggled

with him, the officer put handcuffs on Tucker and searched Tucker

                               - 4 -
before putting him in a police vehicle.    The officer did not find

the twenty-three bags of cocaine on Tucker.    The officer does not

suggest how she could not have discovered twenty-three bags of

cocaine that the majority infers were then in Tucker's

possession.

        Although the officer who transported Tucker to jail

testified at trial that he saw Tucker "squirming around," he

obviously was not concerned that Tucker may have had a weapon or

contraband because the officer did not search Tucker.    When that

officer delivered Tucker to the jail, he put Tucker in a holding

cell.    The holding cell was accessible to a variety of people and

used to hold arrested persons.    The jail was very busy at that

time.    No one searched the holding cell before Tucker was placed

there.    In the holding cell were a desk, a chair, and a bench.

Furthermore, the officer who was present and watching Tucker "the

whole time" did not see Tucker with the twenty-three bags of

cocaine and did not see Tucker drop anything.
        Viewed as a whole, the circumstantial evidence does not

prove beyond a reasonable doubt that Tucker possessed the

cocaine.    "Suspicion, no matter how strong, is not enough.

Convictions cannot rest upon speculation and conjecture."

Littlejohn v. Commonwealth, 24 Va. App. 401, 415, 482 S.E.2d 853,

860 (1997) (citations omitted).    Moreover, when evidence is

equally susceptible of two interpretations, one of which is

consistent with the innocence of the accused, the trier of fact

cannot arbitrarily adopt that interpretation which incriminates

                                 - 5 -
the accused.    See Corbett v. Commonwealth, 210 Va. 304, 307, 171

S.E.2d 251, 253 (1969).

     The evidence proved that the police officer searched Tucker

and did not find the twenty-three bags of cocaine.     The second

police officer then placed Tucker in a holding cell that had not

been searched and that had been used to detain other prisoners.

A third police officer watched Tucker while he was in the holding

cell and did not see Tucker with the twenty-three bags of

cocaine.   Only after Tucker was searched and put in the cell that

had not been searched did the police find twenty-three bags of

"chunk-like" cocaine under a desk.      On these facts, this

conviction is supported only by speculation and conjecture that

somehow Tucker carried the twenty-three bags of cocaine into the

holding cell.
     Because the evidence in this case was wholly circumstantial

and because it did not exclude the reasonable hypothesis of

innocence that another prisoner or person left the twenty-three

bags of cocaine in the cell, the evidence was insufficient to

prove Tucker's guilt beyond a reasonable doubt.     I dissent.




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