                    COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judges Benton, Coleman,
     Willis, Elder, Bray, Annunziata, Overton, Bumgardner
     and Lemons
Argued at Richmond, Virginia


GARRETT E. GRAVES
                                           MEMORANDUM OPINION * BY
v.       Record No. 2046-97-3             JUDGE NELSON T. OVERTON
                                              JANUARY 12, 1999
COMMONWEALTH OF VIRGINIA


                      UPON A REHEARING EN BANC
             FROM THE CIRCUIT COURT OF HALIFAX COUNTY
                     William L. Wellons, Judge

           Buddy A. Ward, Public Defender (Office of the
           Public Defender, on brief), for appellant.

           Robert H. Anderson, III, Assistant Attorney
           General (Mark L. Earley, Attorney General, on
           brief), for appellee.



     Garrett Graves (defendant) was convicted of possession of a

controlled substance, in violation of Code § 18.2-250, by the

Circuit Court of Halifax County.   He appealed, contending that

the evidence was insufficient to support his conviction.    A panel

of this Court held the evidence to be insufficient and reversed

the judgment of the trial court.   See Graves v. Commonwealth,

Record No. 2046-97-2 (Va. Ct. App. June 16, 1998).   We stayed the

mandate of that decision and granted a rehearing en banc.   Upon

rehearing en banc, we affirm the judgment of the trial court.

     "An appellate court must discard all evidence of the accused

that conflicts with that of the Commonwealth and regard as true
     *
      Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
all credible evidence favorable to the Commonwealth and all fair

inferences reasonably deducible therefrom."      Lea v. Commonwealth,

16 Va. App. 300, 303, 429 S.E.2d 477, 479 (1993).     So viewed, the

evidence adduced at trial revealed that on December 6, 1996,

Officer Keith Tribble of the Halifax County Sheriff's Department

stopped a car driven by defendant because the car had an

inoperable headlight.    Defendant was the only occupant of the

vehicle.   Officer Tribble talked with defendant, read him his
Miranda warnings and arrested defendant for driving while

intoxicated and without an operator's license.

     Defendant told Officer Tribble that the car belonged to

defendant, he had cleaned the car earlier that evening and he

previously had two passengers in the car.     The car, however, was

registered to defendant's sister.    Pursuant to the arrest,

Officer Tribble searched the car and found a bag which contained

a perforated beer can.    The bag was located on the floor of the

front passenger's side of the car.      The beer can was modified so

that it could be used to smoke cocaine and, in fact, cocaine

residue was visible on the can.   A laboratory analysis later

confirmed the presence of cocaine.      Officer Tribble also

retrieved several small, white chunks from the center console of

the car.   A laboratory confirmed that these were cocaine.     After

the car was towed to the police station an inventory search was

performed which uncovered another can underneath the driver's

front seat, modified in a similar manner to the first.



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     The decision of the trial court shall be affirmed unless it

is plainly wrong or without support in the evidence.     See Brown

v. Commonwealth, 5 Va. App. 489, 491, 360 S.E.2d 719, 721 (1988).

For a conviction of possession of a controlled substance to

stand, the Commonwealth needed to prove defendant either actually

or constructively possessed the substance.     See White v.

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

Because the Commonwealth concedes that the conviction is grounded

in a constructive possession theory, "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

defendant 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).   The fact that the cocaine was found in a vehicle

occupied by defendant does not create the presumption he

possessed the drug, but is only one of the circumstances which we

must consider.   See Code § 18.2-250; Hardy v. Commonwealth, 17

Va. App. 677, 682, 440 S.E.2d 434, 437 (1994).

     We hold that the evidence presented at trial, taken in the

proper light of appellate review, supports the conviction.

Defendant was the sole occupant of the vehicle.    The only

evidence to the contrary comes from his own statements, which the

trial court was entitled to find incredible.    Cocaine and drug

use paraphernalia were found in the car.   The cocaine rocks were




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in plain sight and within inches of defendant's seat when he was

stopped.    Finally, defendant testified he cleaned the car earlier

in the evening, bolstering the evidence that he was familiar with

the incriminating items contained therein.

     In cases such as this, where the Commonwealth lacks direct

evidence of guilt and must prove the case by circumstantial

evidence, the facts must exclude "every reasonable hypothesis of

innocence."     Tucker v. Commonwealth, 18 Va. App. 141, 143, 442

S.E.2d 419, 421 (1994).    Yet such hypotheses must flow from the

evidence and not result from speculation by the parties or the

court.     See Hamilton v. Commonwealth, 16 Va. App. 751, 755, 433

S.E.2d 27, 29 (1993).    When such a hypothesis has been rejected

by the trial court, as it was in this case, that rejection is a

finding of fact, binding on appeal.       See Brown, 5 Va. App. at

491, 360 S.E.2d at 721.    The hypothesis that a previous passenger

left the cocaine in the car without defendant's knowledge was

rejected by the trial court, not supported by the evidence, and

we may not resurrect it on appeal.       All the facts cognizable by

this Court fully support the inference that defendant controlled

the car he was driving and knew of the cocaine and cocaine

smoking devices contained therein.

     Because the evidence was sufficient to support defendant's

conviction, the conviction is affirmed.

                                                            Affirmed.




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Elder, J., with whom Benton, J., joins, dissenting.

     I respectfully dissent for the reasons stated in the

memorandum opinion of the panel.   See Graves v. Commonwealth,

Record No. 2046-97-2 (Va. Ct. App. June 16, 1998).




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