                   COURT OF APPEALS OF VIRGINIA


Present:  Chief Judge Fitzpatrick, Judges Benton, Elder,
          Annunziata, Bumgardner, Frank, Humphreys, Clements,
          Agee, Felton and Kelsey
Argued at Richmond, Virginia


PHILLIP BRANCH
                                          MEMORANDUM OPINION * BY
v.   Record No. 1077-01-2               JUDGE ROSEMARIE ANNUNZIATA
                                             DECEMBER 3, 2002
COMMONWEALTH OF VIRGINIA


                     UPON A REHEARING EN BANC

           FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                      Robert W. Duling, Judge

           Cynthia E. Payne, Assistant Public Defender
           (Office of the Public Defender, on brief),
           for appellant.

           Robert H. Anderson, III, Senior Assistant
           Attorney General (Jerry W. Kilgore, Attorney
           General, on brief), for appellee.


     On May 7, 2002, a unanimous panel of this Court reversed

and dismissed the conviction of appellant, Phillip Branch, for

possession of a firearm, in violation of Code § 18.2-308.2. 1   The

panel determined that the Commonwealth's evidence did not

establish beyond a reasonable doubt that Branch was aware of the

nature, presence and character of the gun in the car and,


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
     1
       Branch was also convicted of attempting to elude the
police in violation of Code § 46.2-817(B). That conviction is
not at issue on appeal.
therefore, that he was not in constructive possession of it.      We

stayed the mandate of that decision and reinstated the appeal.

Upon rehearing en banc, we affirm the trial court.

        On appeal, we view the facts in the light most favorable to

the Commonwealth, the party prevailing below, and grant to it

all reasonable inferences fairly deducible therefrom.      See

Cressell v. Commonwealth, 32 Va. App. 744, 763-64, 531 S.E.2d 1,

10 (2000).    On September 27, 2000, at approximately 2:00 a.m.,

Trooper Jeffrey Stump, of the Virginia State Police, observed

Branch travelling 71 miles per hour in a posted 55

miles-per-hour zone.    When Stump turned on his emergency lights

and siren, Branch began a high-speed flight, through a

construction zone, that ended only after he ran into a 12-foot

stockade fence.    The collision brought the car to a complete

stop.    Branch exited the car and ran, leaving behind a person in

the passenger side of the car.

        Stump had the passenger exit the car.   He saw a .44 Magnum

revolver, partially under the floor mat with the handle in close

proximity to the brake pedal.    Branch was apprehended by another

trooper a short time later.

        At trial, Branch testified that he was driving the car,

which belonged to his girlfriend, Sherelle Crews, and had been

stolen around 10:30 p.m. that evening and that he and a friend

looked for the stolen car until they found it at approximately

1:00 a.m.
                                 - 2 -
     After locating the car, Branch drove onto Interstate 95.

Branch testified he was speeding because he was afraid to drive

without his license and he knew he was on probation.     He stated

he "panicked" and tried to flee when Stump activated his

emergency lights and siren.     However, he claimed he did not know

the gun was in the car and contended that it would have been

impossible for him to drive with the gun in the location where

Stump found it.

     Branch's girlfriend, Crews, testified that her car was

stolen earlier that evening and that Branch and a friend had

gone to look for it.    She denied owning a gun and denied telling

Stump that Branch did not have permission to drive the car.

     On appeal, Branch contends the evidence presented by the

Commonwealth was insufficient to establish his constructive

possession of the gun.      We disagree and affirm.

     When reviewing the sufficiency of the evidence after a

conviction, we consider that evidence in the light most

favorable to the Commonwealth, and we affirm the conviction

unless it is plainly wrong or without evidence to support it.

Shackleford v. Commonwealth, 262 Va. 196, 209, 547 S.E.2d 899,

906-07 (2001) (citing Horton v. Commonwealth, 255 Va. 606, 608,

499 S.E.2d 258, 259 (1998)).     When the circuit court sits

without a jury, as in this case, it acts as the fact finder and,

therefore, the court's judgment is accorded the same weight as a

jury verdict.     See id.   As the fact finder, the court "need not
                                  - 3 -
believe the accused's explanation and may infer that he is

trying to conceal his guilt."    Id.   Moreover, "[f]light

following the commission of a crime is evidence of guilt

. . . ."    Clagett v. Commonwealth, 252 Va. 79, 93, 472 S.E.2d

263, 271 (1996), cert. denied, 519 U.S. 1122 (1997).

Nevertheless, where the evidence is entirely circumstantial, all

necessary circumstances proved must be consistent with guilt and

inconsistent with innocence, and must exclude every reasonable

hypothesis of innocence.    Sutphin v. Commonwealth, 1 Va. App.

241, 244, 337 S.E.2d 897, 898 (1985) (citations omitted).

"Whether an alternative hypothesis of innocence is reasonable is

a question of fact and, therefore, is binding on appeal unless

plainly wrong."    Stevens v. Commonwealth, 38 Va. App. 528, 535,

567 S.E.2d 537, 540 (2002) (citations omitted).

     To support a conviction for knowingly and intentionally

possessing a firearm after having been convicted of a felony,

there must be proof that the defendant actually or

constructively possessed the firearm at issue.     See Blake v.

Commonwealth, 15 Va. App. 706, 708-09, 427 S.E.2d 219, 220-21

(1993).    To sustain a conviction based upon constructive

possession, "the Commonwealth must point to evidence of acts,

statements, or conduct of the accused or other facts or

circumstances which tend to show that [Branch] was aware of both

the presence and character of the [gun] and that it was subject

to his dominion and control."    Powers v. Commonwealth, 227
                                - 4 -
Va. 474, 476, 316 S.E.2d 739, 740 (1984).   "'However, the

Commonwealth is not required to prove that there is no

possibility that someone else may have planted, discarded,

abandoned, or placed the [firearm] where [it was] found near an

accused.'"    Grier v. Commonwealth, 35 Va. App. 560, 571, 546

S.E.2d 743, 748 (2001) (quoting Pemberton v. Commonwealth, 17

Va. App. 651, 655, 440 S.E.2d 420, 422 (1994)).

     Mere proximity to the gun is not sufficient to establish

dominion and control.    See Drew v. Commonwealth, 230 Va. 471,

473, 338 S.E.2d 844, 845 (1986).   Likewise, "ownership or

occupancy alone is insufficient to prove knowing possession of a

gun located on the premises or in a car."    Burchette v.

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

However, ownership, occupancy and proximity are circumstances

that may be considered together to prove constructive

possession.    See id.; see generally Drew, 230 Va. at 473, 338

S.E.2d at 845; Powers, 227 Va. at 476, 316 S.E.2d at 740.

     We find the Commonwealth's evidence excluded Branch's

hypothesis that someone else placed the gun in the car and that

he neither knew of its presence nor exercised dominion and

control over it.    See Archer v. Commonwealth, 26 Va. App. 1,

12-13, 492 S.E.2d 826, 832 (1997) ("'The Commonwealth need only

exclude reasonable hypotheses of innocence that flow from the

evidence, not those that spring from the imagination of the

defendant.'" (citation omitted)).
                              - 5 -
     The gun was present in plain view and under Branch's feet,

in a car Branch was driving.   Branch's contention at trial, that

he would not have been able to operate the car with the gun in

that location, was rejected by the trial court.   The photograph

introduced to establish the gun's location relative to the

operating pedals does not place the gun below the brake pedal,

but rather, to the left of the pedal, near the footrest.

     Viewing this evidence, together with Branch's flight from

police, the trial court's resolution of the remaining

credibility issues raised by Branch and his witness, Crews,

including Branch's denial that he possessed a gun, we find the

evidence proves beyond a reasonable doubt that Branch possessed

a firearm, in violation of Code § 18.2-308.2.



                                                           Affirmed.




                               - 6 -
Humphreys, J., with whom Benton, J., joins, dissenting.

     Because I would find the circumstantial evidence in this case

was insufficient as a matter of law to prove beyond a reasonable

doubt that Branch constructively possessed the gun, I respectfully

dissent from the majority opinion.

     As the majority aptly states, "[w]hen a defendant challenges

the sufficiency of the evidence on appeal, the reviewing court

must give the judgment of the trial court sitting without a jury

the same weight as a jury verdict."   Tarpley v. Commonwealth, 261

Va. 251, 256, 542 S.E.2d 761, 763 (2001) (citing Hickson v.

Commonwealth, 258 Va. 383, 387, 520 S.E.2d 643, 645 (1999);

Commonwealth v. Taylor, 256 Va. 514, 518, 506 S.E.2d 312, 314

(1998)).   Indeed, an appellate court has the duty to examine the

evidence that tends to support the conviction and to uphold the

conviction unless it is plainly wrong or without evidence to

support it.   Code § 8.01-680.   However, an "appellate court is

equally obligated to set aside the trial court's judgment when it

is contrary to the law and the evidence and, therefore, the

judgment is plainly wrong."   Tarpley, 261 Va. at 256, 542 S.E.2d

at 763 (emphasis added).

     "When 'a conviction is based on circumstantial evidence, all

necessary circumstances proved must be consistent with guilt and

inconsistent with innocence and exclude every reasonable

hypothesis of innocence.'"    Grier v. Commonwealth, 35 Va. App.

560, 571, 546 S.E.2d 743, 748 (2001) (quoting Garland v.
                               - 7 -
Commonwealth, 225 Va. 182, 184, 300 S.E.2d 783, 784 (1983)).

Thus, the evidence itself, when taken in the light most favorable

to the Commonwealth, must exclude every reasonable hypothesis of

innocence. 2

     The evidence in this case, taken in the light most favorable

to the Commonwealth and as accepted by the trial court, proved

that Branch was driving a car that did not belong to him when he

was observed speeding by the police.      The evidence further proved

that a police pursuit ensued, during which Branch drove at speeds

in excess of 80 miles per hour, drove through a road construction

zone where the car collided with construction barrels and drove

across railroad tracks at a high rate of speed.     As Trooper Stump

testified, when Branch hit the railroad tracks, the car he was

driving left the ground and collided with a 12-foot stockade

fence, traveling "five, six feet through the fence before it

stopped."      Stump testified that when the car came to a stop, he

observed Branch "immediately" get out of the car and run.     Stump

stated that when he approached the driver's side of the car, he

saw the gun at issue "underneath the driver's foot pedal and

partially under the [floor] mat."     The photograph admitted into

evidence during trial revealed that the handle of the gun was


     2
       As the majority recognizes, it is fundamental that such
hypotheses must be reasonable and flow from the evidence itself.
"The Commonwealth need . . . not [exclude] those [hypotheses]
that spring from the imagination of the defendant." Hamilton v.
Commonwealth, 16 Va. App. 751, 755, 433 S.E.2d 27, 29 (1993).
                                  - 8 -
indeed, in close proximity to the brake pedal, that the floor mat

was askew, and that other debris was scattered on the floor of the

passenger compartment.   The evidence also established that Branch

was on probation at the time of the incident and that he was

driving without a valid operator's license.    Finally, depending on

the version of the events accepted by the trial court, the

evidence proved that the car had either been stolen that evening

and Crews had given Branch permission to search for it, or that

Branch was driving Crews' car without her permission.

     Applying the above-stated standard of review, I conclude that

this evidence, while certainly suspicious to the extent of showing

a probability of guilt, is insufficient as a matter of law to

establish Branch's constructive possession of the gun.   First, the

Commonwealth produced no direct evidence linking the gun to

Branch.   In addition, and contrary to the view espoused by the

majority, there was simply no evidence that the gun was in plain

view while Branch was in control of the car.    Indeed, the evidence

established that the contents of the driver's side floor area of

the car were askew and in disarray when Trooper Stump approached

the car, immediately after the collision.   Thus, any conclusion

that the gun was in plain view, or even in close proximity to

Branch, prior to the collision and while Branch was in control of

the car, could not be reached without an exercise in conjecture

and speculation.


                               - 9 -
     Next, although it is reasonable to infer that Branch ran from

police because he had knowledge of the gun in the car, the

inference, standing alone, is insufficient to establish Branch's

guilt beyond a reasonable doubt.   Neither this inference, nor the

evidence, excluded the remaining reasonable hypotheses of Branch's

innocence.   Indeed, Branch claimed he ran because he knew he was

on probation and that he was driving without a license when

Trooper Stump observed him speeding.   Assuming the trial court

rejected Branch's testimony to this effect, the trial court's

factual determinations, as suggested by the majority, establish

that Branch was committing a separate offense when Trooper Stump

observed him speeding.   Namely, unauthorized use of a vehicle,

which can be either a misdemeanor or felony, depending on the

value of the car at issue.   Therefore, neither the trial court,

nor this Court, could assume, based on the evidence produced by

the Commonwealth that Branch ran from police because he had

knowledge of the gun.    To do so would again, amount to nothing

more than rank speculation and conjecture.

     Finally, and contrary to the holding of the majority, the

evidence does not exclude the reasonable hypothesis, flowing from

the undisputed evidence, that someone other than Branch may have

placed the gun in the car.   Assuming the trial court rejected the

testimony of both Branch and Crews, it remains patently clear that

at least two other people had access to the car that evening –

Crews and Branch's passenger.   No evidence, circumstantial or
                                - 10 -
otherwise, excluded the very reasonable possibility that one of

those individuals placed the gun in the car, unbeknownst to

Branch.

       As the majority recognizes, the trial court was most

certainly entitled to disbelieve Branch's assertions that he did

not know the gun was in the car.   Nevertheless, the trial court's

rejection of this testimony, although another circumstance of

guilt, does not provide a factual basis for establishing beyond a

reasonable doubt that Branch had knowledge of the gun, nor that it

was subject to his dominion and control.   See Tarpley, 261 Va. at

256-57, 542 S.E.2d at 764.

       In summary, the majority utilizes the standard of review to

supply a sufficient factual basis to support Branch's conviction,

where none exists in the record.   The evidence here, considered as

a whole, in my view is highly suspicious of Branch's guilt.

However, it simply does not prove, beyond a reasonable doubt, that

Branch constructively possessed the gun found on the floor of the

car.   See Littlejohn v. Commonwealth, 24 Va. App. 401, 415, 482

S.E.2d 853, 860 (1997) ("Suspicion, no matter how strong, is not

enough.   Convictions cannot rest upon speculation and conjecture."

(citing Bishop v. Commonwealth, 227 Va. 164, 170, 313 S.E.2d 390,

393 (1984); Smith v. Commonwealth, 192 Va. 453, 461, 65 S.E.2d

528, 533 (1951))).   For these reasons, I would find the trial

court's judgment was based upon evidence that was insufficient as


                                - 11 -
a matter of law and, therefore, plainly wrong, and I would reverse

the conviction.




                              - 12 -
                                                Monday     10th

          June, 2002.


Phillip Branch,                                            Appellant,

against      Record No. 1077-01-2
             Circuit Court No. 01-F-59

Commonwealth of Virginia,                                  Appellee.


                  Upon a Petition for Rehearing En Banc

                        Before the Full Court


          On May 21, 2002 came the appellee, by the Attorney

General of Virginia, and filed a petition praying that the Court

set aside the judgment rendered herein on May 7, 2002, and grant

a rehearing en banc thereof.

          On consideration whereof, the petition for rehearing

en banc is granted, the mandate entered herein on May 7, 2002 is

stayed pending the decision of the Court en banc, and the appeal

is reinstated on the docket of this Court.

          The parties shall file briefs in compliance with Rule

5A:35. The appellee shall attach as an addendum to the opening

brief upon rehearing en banc a copy of the opinion previously

rendered by the Court in this matter. It is further ordered that

the



                                - 13 -
appellee shall file with the clerk of this Court twelve

additional copies of the appendix previously filed in this case.


                          A Copy,

                               Teste:
                                        Cynthia L. McCoy, Clerk
                               By:

                                        Deputy Clerk




                             - 14 -
                 THE COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Annunziata and Humphreys
Argued at Richmond, Virginia


PHILLIP BRANCH
                                         MEMORANDUM OPINION * BY
v.   Record No. 1077-01-2               JUDGE ROBERT J. HUMPHREYS
                                               MAY 7, 2002
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                      Robert W. Duling, Judge

          Cynthia E. Payne, Assistant Public Defender
          (Office of the Public Defender, on brief),
          for appellant.

          Robert H. Anderson, III, Senior Assistant
          Attorney General (Randolph A. Beales,
          Attorney General, on brief), for appellee.


     Phillip Branch appeals his conviction, after a bench trial,

for possession of a firearm by a convicted felon, in violation

of Code § 18.2-308.2.   Branch contends that the trial court

erred in finding the evidence sufficient as a matter of law to

sustain the conviction. 3

     On September 27, 2000, at approximately 2:00 a.m., Trooper

Jeffrey Stump, of the Virginia State Police, was working

stationary radar on Interstate 95 in the City of Richmond.     He


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
     3
       Branch was also convicted of attempting to elude police in
violation of Code § 46.2-817(B). That conviction is not at
issue on appeal.

                              - 15 -
observed Branch travelling 71 miles per hour in a posted 55

miles-per-hour zone.   Trooper Stump turned on his emergency

lights and siren and followed Branch's car northbound on

Interstate 95.   Branch slowed his car briefly, but after

approximately 30 seconds he accelerated and reached a speed of

more than 80 miles per hour.

     Branch, followed by Stump, arrived at the James River

Bridge, where "traffic was backed up" due to construction that

limited travel to one southbound lane.    Branch drove the car

through the construction area and hit construction barrels that

struck and damaged Stump's police car.    Branch then proceeded

north in the shutdown lanes of Interstate 95, passing traffic

that had stopped or slowed for the construction zone.    Branch

finally left the interstate and proceeded onto Seventh Street,

where his car hit the railroad tracks at a high rate of speed.

His car left the ground and hit a 12-foot stockade fence, which

brought the car to a complete stop.     Branch then got out of the

car and ran, leaving behind a person in the passenger side of

the car.

     Stump approached the stopped car and removed the passenger.

Stump then went to the driver's side of the car and observed a

.44 Magnum revolver under the driver's foot pedal and partially

under the floor mat.   Branch was apprehended by another trooper

a short time later.



                               - 16 -
      At trial, Branch testified that he was driving the car, but

claimed the car belonged to his girlfriend.    Branch further

testified that her car had been stolen around 10:30 p.m. that

evening, approximately three and one-half hours before Stump

attempted to pull Branch over.     Branch stated that he and a

friend had gone to look for the stolen car for his girlfriend,

and had found it at approximately 1:00 a.m. that morning, on a

dark road.   Branch then drove the car onto Interstate 95.   He

conceded he did not have a driver's license and that he was on

probation at the time.    Further, he admitted he was speeding

when he was initially observed by Stump.    He claimed he was

afraid of driving without his license and that he wanted to

return the car to his girlfriend quickly.

      Branch testified he did not pull over when Stump turned on

his lights and siren because he knew he was not supposed to be

driving.   He admitted running from the troopers on foot when the

car finally came to a stop.   However, he claimed he did not know

the gun was in the car.   He stated that he never saw the gun,

and testified that it would have been impossible for him to

drive with the gun in the location where it was found by Stump.

      Branch's girlfriend testified that her car had been stolen

that evening and that Branch and a friend had gone to look for

it.   She denied owning a gun.




                                 - 17 -
     On appeal, Branch contends the evidence presented by the

Commonwealth was insufficient to establish his constructive

possession of the gun.    We agree.

            When reviewing the sufficiency of the
            evidence after a conviction, we consider
            that evidence in the light most favorable to
            the Commonwealth, and we affirm the
            conviction unless it is plainly wrong or
            without evidence to support it. The circuit
            court sitting without a jury in this case
            acted as the fact finder; hence, the court's
            judgment is accorded the same weight as a
            jury verdict. As the fact finder, the court
            "need not believe the accused's explanation
            and may infer that he is trying to conceal
            his guilt." 4

Nevertheless, where the evidence is entirely circumstantial, all

necessary circumstances proved must be consistent with guilt and

inconsistent with innocence and must exclude every reasonable

hypothesis of innocence. 5

     To support a conviction for knowingly and intentionally

possessing a firearm after having been convicted of a felony,

there must be proof that the defendant possessed the firearm at

issue. 6   "'Possession may be actual or constructive.'" 7   The


     4
       Shackleford v. Commonwealth, 262 Va. 196, 209, 547 S.E.2d
899, 906-07 (2001) (quoting Black v. Commonwealth, 222 Va. 838,
842, 284 S.E.2d 608, 610 (1981)).
     5
       Sutphin v. Commonwealth, 1 Va. App. 241, 244, 337 S.E.2d
897, 898 (1985) (citations omitted).
     6
       Blake v. Commonwealth, 15 Va. App. 706, 708-09, 427 S.E.2d
219, 220-21 (1993).
     7
       Brown v. Commonwealth, 15 Va. App. 1, 7-8, 421 S.E.2d 877,
882 (1992) (quoting Castaneda v. Commonwealth, 7 Va. App. 574,
583-84, 376 S.E.2d 82, 86-87 (1989)).

                                - 18 -
principles that govern constructive possession of illegal drugs

also apply to constructive possession of a firearm. 8   Thus, to

sustain a conviction based upon constructive possession, "the

Commonwealth must point to evidence of acts, statements, or

conduct of the accused or other facts or circumstances which

tend to show that [Branch] was aware of both the presence and

character of the [gun] and that it was subject to his dominion

and control." 9   "'However, the Commonwealth is not required to

prove that there is no possibility that someone else may have

planted, discarded, abandoned, or placed the [firearm] where [it

was] found near an accused.'" 10

     Further, mere proximity to the gun is not sufficient to

establish dominion and control. 11   Likewise,

          [o]wnership or occupancy of a car or of
          premises where [a firearm is] found is a
          circumstance that may be considered together
          with other evidence tending to prove that
          the owner or occupant exercised dominion and
          control over items in the car or on the
          premises in order to prove that the owner or
          occupant constructively possessed the [gun];
          however, ownership or occupancy alone is
          insufficient to prove knowing possession of

     8
       Grier v. Commonwealth, 35 Va. App. 560, 570, 546 S.E.2d
743, 747-48 (2001).
     9
       Powers v. Commonwealth, 227 Va. 474, 476, 316 S.E.2d 739,
740 (1984).
     10
       Grier, 35 Va. App. at 571, 546 S.E.2d at 748 (quoting
Pemberton v. Commonwealth, 17 Va. App. 651, 655, 440 S.E.2d 420,
422 (1994)).
     11
       Drew v. Commonwealth, 230 Va. 471, 473, 338 S.E.2d 844,
845 (1986).

                               - 19 -
            [a gun] located on the premises or in a
            car." 12

In order for ownership or occupancy of property or of a car to

be sufficient to support the inference that the owner or

occupant also possessed the gun at issue, the owner or occupant

must be shown to have exercised dominion and control over the

premises and to have known of the presence, nature, and

character of the gun at the time of such ownership or

occupancy. 13

     In the case at bar, the only evidence tending to establish

Branch's constructive possession of the gun is the fact that it

was found on the floor of the driver's side of the car he was

driving.    Indeed, the undisputed evidence established that

Branch was not the owner of the car and that the car had been

stolen by a person or persons unknown, only a few hours before

the gun was discovered by Stump.    Further, unlike many of the

cases cited by the Commonwealth, Branch was not the sole

occupant of the car when he was ultimately stopped by police,

nor did the evidence tend to exclude the reasonable possibility

that someone other than Branch placed the gun in the car without

Branch's knowledge. 14   Furthermore, none of the cases relied upon


     12
       Burchette v. Commonwealth, 15 Va. App. 432, 435, 425
S.E.2d 81, 83 (1992).
     13
          Id. at 435, 425 S.E.2d at 83-84.
     14
       See Hamilton v. Commonwealth, 16 Va. App. 751, 754-55,
433 S.E.2d 27, 28-29 (1993); Langston v. Commonwealth, 28

                                - 20 -
by the Commonwealth involved a collision similar to the incident

at issue.   Finally, as the photograph in evidence demonstrates,

the gun was found under the pedals of the car and partially

under a floor mat, which itself was askew from its normal

position, – a combination of conditions which would clearly have

made the car more difficult to operate.

     Accordingly, Branch contends that the evidence is

consistent with his claim that he had no knowledge of the gun,

as it was concealed somewhere out of his view by someone else

and was forced under the gas and brake pedals as a result of the

accident.   Branch further argues that he could not have driven

the car with the gun under the pedals as it was found by police.

We agree with Branch's contention that the circumstantial

evidence in this case, while clearly suspicious, simply does not

exclude every reasonable hypothesis of Branch's innocence,


Va. App. 276, 285-86, 504 S.E.2d 380, 384-85 (1998); Logan v.
Commonwealth, 19 Va. App. 437, 444-45, 452 S.E.2d 364, 368-69
(1994); and Watkins v. Commonwealth, 26 Va. App. 335, 349, 494
S.E.2d 859, 866 (1998). See also Adkins v. Commonwealth, 217
Va. 437, 438-39, 229 S.E.2d 869, 870 (1976) (finding
constructive possession of marijuana found in the floor of the
driver's side of the car where defendant, who was sitting in the
passenger side of the car when police approached, was the only
occupant in the front seat and police had observed furtive
movements by the occupant of the front seat upon approaching the
car); and Grier, 35 Va. App. at 570-71, 546 S.E.2d at 748
(finding constructive possession of drugs and a firearm where
the defendant, the sole passenger in the car, was observed
exchanging capsules and unidentified small objects from the
window of the car for cash just minutes prior to being stopped
by police).



                              - 21 -
supported by evidence in the record.    Moreover, the

Commonwealth's insistence that Branch's flight from police is

evidence of his guilt lends little credence to its position.

Branch contended that his reason for running was his guilty

knowledge that he was driving without a driver's license, he was

on probation, and he was speeding when he was observed by

Trooper Stump.   Thus, while the evidence viewed in the light

most favorable to the Commonwealth "creates a strong suspicion,

indeed a probability," that Branch constructively possessed the

gun, the evidence does not establish beyond a reasonable doubt

that Branch was aware of the "presence, nature, and character"
                                                        15
of the gun at the time of his occupancy of the car.

Furthermore, "we have said, suspicious circumstances and

probability of guilt, no matter how strong, are insufficient to

sustain a criminal conviction." 16   Because the circumstances of

this case do not exclude the reasonable hypothesis that someone

else placed the gun in the car, unbeknownst to Branch, we hold

that the trial court was plainly wrong in finding the evidence

sufficient as a matter of law to support Branch's conviction on

this charge.    Accordingly, the decision of the trial court must

be reversed and the charge dismissed.

                                            Reversed and dismissed.


     15
       Rogers v. Commonwealth, 242 Va. 307, 320, 410 S.E.2d 621,
629 (1991).
     16
          Id.

                               - 22 -
