                       COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Felton and Senior Judge Hodges
Argued at Chesapeake, Virginia


JASON DALE TUELL
                                          MEMORANDUM OPINION * BY
v.   Record No. 2018-01-1                 JUDGE WILLIAM H. HODGES
                                             OCTOBER 22, 2002
COMMONWEALTH OF VIRGINIA


         FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE
                 Russell I. Townsend, Jr., Judge

          Robert G. Byrum (Shames & Byrum, P.C., on
          brief), for appellant.

          Stephen R. McCullough, Assistant Attorney
          General (Jerry W. Kilgore, Attorney General,
          on brief), for appellee.


     Jason Dale Tuell, appellant, appeals his convictions of

possession with the intent to distribute Ecstasy, possession of

diazepam (Valium), and possession with the intent to distribute

between one-half ounce and five pounds of marijuana.   Appellant

contends the evidence was not sufficient to prove appellant

possessed the drugs.   We agree and reverse the convictions.

                             BACKGROUND

     On May 4, 2000, police executed a search warrant for the

residence leased to appellant and John McCarthy.   Appellant was

not present during the search of the residence, though McCarthy


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
and his girlfriend were.   In appellant's downstairs bedroom, the

police found twenty-six Ecstasy pills and seventy-four Valium

pills in the bottom drawer of a nightstand situated to the left of

the bed.   Police also found marijuana in another drawer of the

same nightstand.   In the nightstand to the right of the bed,

police found a checkbook for a joint account belonging to

appellant and another person, as well as photographs of appellant.

On the top shelf of the closet, police found a shoebox containing

marijuana, packaged in separate baggies.     The shoebox also

contained plastic baggies, commonly used for distribution of

marijuana, a set of hanging scales, and a black sports bag with

another checkbook from the joint account in it.    Police discovered

more marijuana in a dresser drawer.     In the top right drawer of

the dresser, police found appellant's wallet, which contained his

driver's license, social security card, credit cards and a health

insurance card.

     McCarthy testified on behalf of the Commonwealth.     McCarthy

stated the drugs found in appellant's bedroom were not his.     In

his testimony, McCarthy also indicated he had not seen appellant

in the residence for four days, though that was not uncommon since

they had different schedules.   McCarthy recounted that he had

never seen appellant use or sell drugs and that he was surprised

that the police found narcotics in appellant's room.    McCarthy

testified that at least twelve visitors had recently been to the



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residence and three or four different people had spent the night

in appellant's room.    Further, in order to get to the backyard,

people were required to pass through appellant's room to go

outside to smoke or to take out the trash.

                               ANALYSIS

             In reviewing a challenge to the sufficiency
             of evidence to sustain a conviction, we are
             guided by well-established principles. We
             view the evidence in the light most
             favorable to the Commonwealth and accord to
             that evidence all reasonable inferences that
             flow from it. In reviewing that evidence,
             however, "we cannot . . . disregard
             credible, unimpeached evidence of the
             Commonwealth which exculpates the defendant
             and creates a reasonable doubt." A
             conviction based on circumstantial evidence
             may be sustained only if the evidence, when
             taken as a whole, excludes every reasonable
             hypothesis of innocence. Thus, the evidence
             must be wholly consistent with guilt and
             wholly inconsistent with innocence.

Scruggs v. Commonwealth, 19 Va. App. 58, 60-61, 448 S.E.2d 663,

664-65 (1994) (citation omitted).

     Appellant was not present during the search of the

residence.    Thus, appellant was not found in actual possession

of the contraband.     The Commonwealth relies on a theory of

constructive possession.

             Constructive possession of contraband may be
             shown by proof that the substance is known
             to the defendant and subject to his dominion
             and control. Knowledge of the presence and
             character of the drug may be shown by
             evidence of the acts, statements, or conduct
             of the accused. While an accused's



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          occupancy of the premises does not give rise
          to a presumption of possession, this factor
          may be considered with other evidence in
          determining whether a defendant
          constructively possessed drugs.

Garland v. Commonwealth, 225 Va. 182, 184, 300 S.E.2d 783, 784

(1983) (citations omitted).

     Appellant concedes that the residence was leased to him and

that the room in which the drugs were found was his bedroom.

The additional evidence linking appellant to the drugs is the

presence of his wallet in the dresser where marijuana was also

found, his checkbook in a nightstand where no drugs were found,

and a sports bag containing an additional checkbook in the

shoebox where the majority of the marijuana was found.

     The only personal item found in the same physical location

as any drugs was one of the checkbooks.   Even that item,

however, was in a separate bag within the shoebox.   Further, the

checkbooks were for a joint account held by appellant and

another person.   No evidence indicated how long the various

items were in place or who placed them where they were found.

Though all the contraband was tested for fingerprints, only one

print was detected and that fingerprint did not match appellant.

     Additionally, McCarthy testified the last time he saw

appellant in the residence was four days prior to the search.

McCarthy did not know appellant to use or sell drugs and, in

fact, was "shocked" to learn drugs were found in his room.



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McCarthy also indicated the bedroom was used not only by

appellant, but at least three other people who had spent the

night in appellant's bed.   Moreover, at least twelve people had

been to the residence, several of whom had to pass through

appellant's bedroom to smoke in the backyard or to take out the

trash.

     While all the evidence creates a strong suspicion that

appellant possessed the drugs, "[s]uspicion . . . no matter how

strong, is insufficient to sustain a criminal conviction."     Id.

at 184-85, 300 S.E.2d at 785 (citation omitted).   We cannot

ignore the credible evidence that many people other than

appellant had access to and used appellant's bedroom.   Finally,

none of appellant's personal items conclusively established that

appellant knew of the presence of the contraband or exercised

any dominion or control over the drugs.   Accordingly, we reverse

the judgment of the trial court and dismiss the indictments.

                                          Reversed and dismissed.




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