                   COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Willis and Lemons
Argued at Richmond, Virginia


ROBERT JONES, S/K/A
 ROBERT G. JONES, JR.
                                         MEMORANDUM OPINION * BY
v.        Record No. 2670-97-2        JUDGE JERE M. H. WILLIS, JR.
                                          FEBRUARY 16, 1999
COMMONWEALTH OF VIRGINIA


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

          John H. Click, Jr. (White, Blackburn & Conte,
          P.C., on brief), for appellant.

          Thomas D. Bagwell, Senior Assistant Attorney
          General (Mark L. Earley, Attorney General, on
          brief), for appellee.


     On appeal from his conviction for possession of cocaine, in

violation of Code § 18.2-250, Robert Jones contends that the

evidence is insufficient to support his conviction.   We disagree

and affirm the judgment of the trial court.

     "On appeal, we review the evidence in the light most

favorable to the Commonwealth, granting to it all reasonable

inferences deducible therefrom."   Martin v. Commonwealth, 4 Va.

App. 438, 443, 358 S.E.2d 415, 418 (1987).

     On September 22, 1995, Jones was arrested by Officer Isaac

Hawkins, Jr., pursuant to a misdemeanor arrest warrant.   Officer

Hawkins frisked Jones before placing him in the rear seat of a

police cruiser.   Hawkins testified that Jones was the only

     *
      Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
occupant of the rear seat of the police vehicle during Hawkins'

shift that night, that he had arrested Jones around 11:15 p.m.,

and that he had processed Jones himself.     At the sentencing

hearing held June 5, 1996, the Commonwealth reopened its case so

that Hawkins could correct his testimony.     Hawkins then testified

that he arrested Jones around 8:15 p.m. and that he did not

himself process Jones.     The vehicle was locked with its windows

rolled up at all times during Hawkins' shift.

     Upon concluding his shift, Hawkins turned the vehicle over

to Officer Paul Entrobia, Jr., who searched the vehicle

preparatory to undertaking the next shift.     Under the rear seat,

Officer Entrobia found a white chalky substance, determined upon

laboratory analysis to be crack cocaine.

     The Commonwealth based its case against Jones on the theory

that Hawkins had searched the vehicle at the beginning of his

shift, that his search had disclosed no contraband, specifically

cocaine, and that Jones was the only occupant of the rear seat of

the vehicle before Officer Entrobia discovered the cocaine upon

his search.    The issue on appeal is whether, prior to placing

Jones in the vehicle, Hawkins conducted a search establishing

that the vehicle, at that time, contained no cocaine.
     On direct examination, Officer Hawkins testified:

              A.   Standard procedure, Your Honor, before
                   taking a shift, each vehicle is checked
                   thoroughly by each officer coming on to
                   the shift, which means that the backseat
                   of the vehicle, the police vehicle,
                   which is a removable seat, bench style,
                   is actually pulled out from the vehicle



                                  - 2 -
                  where the -- the bottom of the seat is
                  checked for any possible weapons,
                  contraband, or anything that is left of
                  what's supposed to be in the vehicle.

             Q.   Did you do this on that date?

             A.   That's correct.

             *       *      *        *      *      *      *

             Q.   When you took the seat out, did you do a
                  thorough investigation of your vehicle?

             [DEFENSE ATTORNEY]:     Judge, it's been asked
                 and answered.

             *      *       *        *      *      *      *

             THE COURT:   It's been asked and answered.

     The foregoing testimony established that Officer Hawkins

searched his vehicle at the beginning of his shift, but he was

neither asked nor stated what, if anything, that search

disclosed.   The Commonwealth argues that Hawkins' silence on the

subject will support an inference that he found nothing.      It

argues also that the presumption that an officer will do his duty

supports an inference that Hawkins would have removed any

contraband that he found.       We find neither argument persuasive.

     However, on cross-examination, Hawkins was questioned and

testified as follows:
             Q.   Okay. And then this rock was found
                  afterwards in the patrol car; is that
                  correct?

             A.   It was located by Officer Entrobia after
                  the shift change.

             Q.   In the patrol car?

             A.   That's correct.



                                    - 3 -
              Q.   So this defendant would have had to have
                   had that rock of crack cocaine on his
                   person when you patted him down,
                   correct?

          A.       That would be correct prior to him being
                   placed in the police vehicle.

              Q.   That being the case, then, when you
                   patted him down, you simply must have
                   missed that large rock of crack cocaine
                   on his person?

              A.   Are you asking me a question, sir, or
                   are you speculating?

              Q.   I'm asking you if -- I'm asking you that
                   rock -- your testimony is that that rock
                   of crack cocaine was on this man's
                   person when you patted him down?

              A.   Prior to placing him in my police
                   vehicle, that's correct.

              Q.   So if that's your testimony, then, you
                   must have, when you patted him down,
                   missed seeing that rock of crack
                   cocaine?

              A.   Obviously, I did.   Correct.

     The foregoing dialogue on cross-examination necessarily

supposes and infers that the crack cocaine was not in the police

vehicle prior to Jones' placement in the vehicle.      That inference

supports the finding that Hawkins' inspection of the vehicle

disclosed no contraband because no contraband was there and that

the contraband must have gone into the vehicle with Jones.     That

finding is sufficient to support Jones' conviction for possession

of cocaine.
     Jones contends that Hawkins' testimony is insufficient to

support his conviction because Hawkins made several errors in his




                                  - 4 -
trial testimony.   "It is fundamental that 'the credibility of

witnesses and the weight accorded their testimony are matters

solely for the fact finder who has the opportunity of seeing and

hearing the witnesses.'"   Singleton v. Commonwealth, 19 Va. App.

728, 735, 453 S.E.2d 921, 926 (1995) (en banc) (citation

omitted).   The trial court reviewed the testimony of both parties

and determined that Hawkins was credible.   The trial court was

afforded a second opportunity to judge Hawkins' credibility at

the sentencing hearing and again found Jones guilty.

     Because the findings of the trial court are not plainly

wrong, the evidence is sufficient and the conviction must stand.

See Glover v. Commonwealth, 3 Va. App. 152, 160-61, 348 S.E.2d

434, 440 (1986), aff'd, 236 Va. 1, 372 S.E.2d 134 (1988).

     The judgment of the trial court is affirmed.

                                                        Affirmed.




                               - 5 -
Benton, J., dissenting.

     The majority concludes that the circumstances were

sufficient to permit an inference that Robert Jones possessed the

cocaine found under the rear seat of the officer's vehicle.        I

would reverse the conviction because the evidence was

insufficient to prove beyond a reasonable doubt that Jones

possessed the cocaine.

     At trial, Officer Hawkins testified concerning his "standard

procedure . . . before taking a shift" of searching his vehicle

for weapons or contraband.   His testimony established only that

he did not see anything he believed to be cocaine when, to the

best of his "recollection," he searched the vehicle at 4:00 p.m.

     When Officer Hawkins arrived at Jones' residence, Jones was

wearing shorts and no shirt.    Officer Hawkins could not recall

whether Jones wore shoes or socks.      He searched Jones in the

residence and again outside before he put Jones in his vehicle.

He found no cocaine on Jones.   At trial, Officer Hawkins

testified that he arrested Jones at 11:15 p.m.     However, at the

sentencing hearing several months later, Officer Hawkins

testified that his trial testimony was incorrect and that he had

in fact arrested Jones at 8:15 p.m.     He explained this

discrepancy by stating that his prior testimony was based on his

"best recollection."
     Officer Hawkins did not find the cocaine.      Officer Entrobia

testified that when his shift began at 12:00 a.m., he searched

the vehicle that Officer Hawkins had used.     He completely removed



                                - 6 -
the back seat of the vehicle and found a piece of cocaine on the

floor of the space he exposed.

       This evidence does not prove that Jones was ever in actual

possession of the cocaine.    His proximity to the cocaine is

insufficient to prove beyond a reasonable doubt that he possessed

it.    See Clodfelter v. Commonwealth, 218 Va. 619, 623, 238 S.E.2d

820, 822 (1977).    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).    Furthermore, the evidence was

insufficient to even prove constructive possession because no

facts or circumstances indicated that Jones was aware of the

presence of the cocaine and exercised dominion and control over

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

845 (1986).

       The Commonwealth's theory of prosecution was that Jones was

the only person who could have possessed the cocaine.      However,

to support the conviction, the evidence must exclude every

reasonable hypothesis other than Jones' possession of the

cocaine.     See Bishop, 227 Va. at 169, 313 S.E.2d at 393.   It does

not.   Officer Hawkins' testimony does not exclude the reasonable

hypothesis that he incompletely searched the vehicle or simply

did not recognize the item that Officer Entrobia found three and

a half hours after Jones had been removed from the vehicle.




                                 - 7 -
     Officer Hawkins searched Jones twice before putting him in

the car.   Jones did not wear much clothing.   To the best of

Officer Hawkins' "recollection," he had earlier searched the car

according to standard procedure.   However, his testimony clearly

proved that his recollection was faulty because he could not

accurately recall the time he arrested Jones.   In addition,

Officer Hawkins testified at trial that he personally processed

Jones and took him before a magistrate.   However, at the

sentencing hearing he admitted that he did not process Jones.         He

attributed that mistake in his trial testimony to his belief at

trial that "to the best of [his] recollection . . . [he] followed

standard procedure."    The officer's faulty recollection casts

doubt upon whether he earlier searched the car.

     On this evidence, it is equally as likely that Officer

Hawkins overlooked the piece of cocaine earlier during an

incomplete search of his vehicle as it is that he overlooked the

piece of cocaine during the two searches of Jones before he put

Jones in the vehicle.   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 the accused.       See

Corbett v. Commonwealth, 210 Va. 304, 307, 171 S.E.2d 251, 253

(1969).    Furthermore, cocaine was found under the seat by Officer

Entrobia, who searched the vehicle three and a half hours after

Jones was in the vehicle.   The completeness of Officer Entrobia's




                                - 8 -
search does nothing to establish whether Officer Hawkins was

complete in his search.

     The evidence in the record only raises a suspicion that

Jones somehow had 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).    The evidence in

this case was wholly circumstantial and did not exclude the

reasonable hypothesis of innocence that another person left the

cocaine in the vehicle.    Therefore, I would hold that the

circumstantial evidence does not prove beyond a reasonable doubt

that Jones possessed the cocaine.    I dissent.




                                 - 9 -
