                        COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Frank and Humphreys
Argued at Salem, Virginia


ANTHOINE PLUNKETT, S/K/A
 ANTOINE PLUNKETT

v.   Record No. 3002-99-3

COMMONWEALTH OF VIRGINIA                  MEMORANDUM OPINION * BY
                                         JUDGE ROBERT J. HUMPHREYS
ANTHOINE PLUNKETT                            DECEMBER 19, 2000

v.   Record No. 0257-00-3

COMMONWEALTH OF VIRGINIA


           FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE
                       James F. Ingram, Judge

           Brian H. Turpin (Law Offices of Brian H.
           Turpin, on brief), for appellant.

           Amy L. Marshall, Assistant Attorney General
           (Mark L. Earley, Attorney General, on brief),
           for appellee.


     Anthoine Plunkett appeals his conviction, after a bench

trial, of one count of possession of a controlled substance with

intent to distribute.    Plunkett contends that the trial court

erred in finding the evidence sufficient to establish that he had

the requisite knowledge of the nature, character and location of

the drugs and that he had actual or constructive possession of the

drugs.   In a separate appeal to this Court, Plunkett contends that


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
the trial court erred in subsequently revoking his suspended

sentence for a prior drug-related offense. 1   We dispose of both

appeals in this memorandum opinion.

     "Where the sufficiency of the evidence is challenged after

conviction, it is our duty to consider it in the light most

favorable to the Commonwealth and give it all reasonable

inferences fairly deducible therefrom.   We should affirm the

judgment unless it appears from the evidence that the judgment is

plainly wrong or without evidence to support it."    Higginbotham v.

Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975)

(citation omitted).

     "In order to convict a defendant of 'possession' of a

narcotic drug . . . it generally is necessary to show that

defendant was aware of the presence and character of the

particular substance and was intentionally and consciously in

possession of it."    Ritter v. Commonwealth, 210 Va. 732, 741,

173 S.E.2d 799, 805 (1970).   However, "[p]ossession [of drugs]

may be actual or constructive.    Constructive possession may be

established by '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 the character

of the substance and that it was subject to his dominion and


     1
       Although Plunkett's appeals have not been formally
consolidated, due to their interrelated nature, we dispose of
both matters in this decision.


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control.'"     Powers v. Commonwealth, 227 Va. 474, 476, 316 S.E.2d

739, 740 (1984).

             The applicable law is summarized in Womack
             v. Commonwealth, 220 Va. 5, 255 S.E.2d 351
             (1979). Constructive possession may be
             shown by establishing that the [contraband]
             was known to and subject to the dominion and
             control of the accused. Knowledge of the
             presence and character of the controlled
             substance may be shown by evidence of the
             acts, statements or conduct of the accused.
             Mere proximity to the controlled substance,
             however, is insufficient to establish
             possession. Nevertheless, the possession
             need not be exclusive.

Eckhart v. Commonwealth, 222 Va. 447, 450, 281 S.E.2d 853, 855

(1981).   "Proof of constructive possession necessarily rests on

circumstantial evidence; thus, all necessary circumstances

proved must be consistent with guilt and inconsistent with

innocence and exclude every reasonable hypothesis of innocence."

Burchette v. Commonwealth, 15 Va. App. 432, 434, 425 S.E.2d 81,

83 (1992) (citations omitted).

     Here, the evidence established that Plunkett was found on

the premises of the residence belonging to Angela Wilson,

although outside the house, when the police arrived to execute

the warrant.    In addition, Plunkett's daughter was inside the

house when the police arrived.    However, the police also found

three other men inside the house.    One was found in the front

room, sitting on the couch.    Another was found sitting at a

table which was located "just outside the bathroom."    The third



                                 - 3 -
male was found in the bathroom, with the toilet refilling as if

it had just been flushed.

     The police found a gym bag on the floor in the front room.

It was "cinched" shut when the police initially found it.

Inside the bag's main compartment were the following items: 1)

a letter addressed to Plunkett from an attorney; 2) sales

receipt information in Plunkett's name; 3) a First State Bank

bag; 4) some checkbooks and banking information in Plunkett's

name; 5) a deposit ticket in the name of Angela Wilson; 6) a

deposit ticket in the name of David Hamlett; 7) a watch; 8)

latex gloves; 9) a digital scale; and 10) a Crown Royal bag

containing 33.48 grams of cocaine.      In the side compartments of

the bag, officers found Plunkett's wallet, containing his

driver's license, social security card and other identifying

information.   They also found two cameras.

     Plunkett ran from the scene once the officers tried to

detain him.    When asked for identification, Plunkett waved

toward the gym bag, indicating that he knew his wallet and/or

identification were in the bag.

     The Commonwealth argues that these circumstances prove

Plunkett had knowledge of the drugs in the bag and that they

were subject to his dominion and control.     We disagree.

     We have previously held that the fact that a suspect's

personal items are found in close proximity to contraband does

not, in and of itself, establish ownership, knowledge or

                                - 4 -
possession.    See Burchette, 15 Va. App. at 437-38, 425 S.E.2d at

85 (the fact that some of defendant's personal possessions were

found in the vehicle during the search establishes, at most,

that he had, at some point in time, been in the vehicle; that

evidence does not establish that he had been in the vehicle when

the contraband was present);    See Drew v. Commonwealth, 230 Va.

471, 472-74, 338 S.E.2d 844, 845-46 (1986) (evidence that

defendant's checkbook, bank statement, telephone bill, driver's

license, vehicle registration, and credit union voucher were

found in house in which large amounts of cocaine were discovered

was held insufficient to support conviction for constructive

possession).

     Here, Plunkett denied knowledge of the contents of the bag.

Other than the fact that Plunkett's personal items were found in

the bag, there was no evidence that Plunkett had access to the

bag, or that the bag was ever subject to his possession and/or

dominion and control.   In fact, witness Angela Wilson testified

that the bag belonged to her and claimed that she put the items

belonging to Plunkett, as well as the deposit tickets belonging

to herself and David Hamlett, in the bag.    She denied knowledge

of the contents in the bag related to the drugs.

     Despite the above, Plunkett's flight from police does

provide some evidence of guilty knowledge.   His possession of

items associated with drug use and distribution (such as the

pager and the large sum of cash) are also factors to be

                                - 5 -
considered by the trier of fact.   Yet, these factors alone do

not establish guilt.   See White v. Commonwealth, 25 Va. App.

662, 668, 492 S.E.2d 451, 454 (1997) (en banc); see also Glasco

v. Commonwealth, 26 Va. App. 763, 775, 497 S.E.2d 150, 156

(1998), affirmed 257 Va. 433, 513 S.E.2d 137 (1999); Langhorne v.

Commonwealth, 13 Va. App. 97, 102, 409 S.E.2d 476, 480 (1991).

     While it is true that in resolving questions of possession,

a court must consider "the totality of the circumstances

disclosed by the evidence," the evidence here, even combined,

simply does not relate Plunkett with the drugs in the gym bag.

See Womack, 220 Va. at 8, 255 S.E.2d at 353.   At most, the

evidence establishes a suspicion that Plunkett knew about the

drugs and/or had some degree of dominion and control over the

gym bag and its contents.   "Suspicious circumstances no matter

how grave or strong, are not proof of guilt sufficient to

support a verdict of guilty."    Burchette, 15 Va. App. at 437-38,

425 S.E.2d at 85 (citations omitted).

     Furthermore, the fact that Plunkett nodded toward the bag

when asked for identification establishes only that Plunkett

knew his wallet and/or identification was in the bag.   It does

not establish that the bag was his, nor that he had knowledge,

dominion, or control over the bag and its contents.

     As we held in Burchette, "[this] evidence simply does not

exclude the very real possibility that . . . someone other than

[Plunkett] used or had access to the [gym bag] and had left the

                                - 6 -
drugs there unbeknownst to him. . . . The evidence does not

exclude every reasonable hypothesis of innocence."     Burchette,

15 Va. App. at 438, 425 S.E.2d at 85.   "When, from the

circumstantial evidence, it is just as likely, if not more

likely, that a reasonable hypothesis of innocence explains the

accused's conduct, the evidence cannot be said to rise to the

level of proof beyond a reasonable doubt.   The Commonwealth need

not exclude every possible theory or surmise, but it must

exclude those hypotheses which flow from the evidence itself."

Haskins v. Commonwealth, 31 Va. App. 145, 151, 521 S.E.2d 777,

780 (1999) (citations omitted).

     Thus, we hold that the Commonwealth failed to carry its

burden of proof with regard to both the elements of knowledge

and possession.   Because knowledge and possession are essential

elements of the crime with which Plunkett was charged, we

reverse the conviction and enter final judgment dismissing the

indictment.

     In a separate but related appeal, Plunkett argues that the

trial court erred when it subsequently revoked his suspended

sentence for a prior drug conviction.   Plunkett argues that the

trial court erred because it was required to continue the

revocation matter pending the outcome of his appeal.    We

disagree with Plunkett's contention.

     "[In] a proceeding to revoke probation, a trial court may

take steps to ensure that a defendant will not be incarcerated

                               - 7 -
because of a revocation based on an improper conviction.   If a

defendant's suspended sentence is revoked, execution of the

sentence may be postponed pending an appeal.   [However,] the

decision to grant or deny a continuance in a criminal case lies

within the sound discretion of the trial court."   Patterson v.

Commonwealth, 12 Va. App. 1046, 1049, 407 S.E.2d 43, 45 (1991).

     Accordingly, we affirm the trial court's decision on this

basis.   However, in light of our decision to reverse and dismiss

the underlying conviction, we remand this matter to the trial

court for further proceedings consistent with that decision.

See id. at 1049-50, 407 S.E.2d at 45 (if, on appeal of a

revocation proceeding, the underlying conviction is reversed,

the revocation must also be reversed).

                                         Record No. 3002-99-3,
                                         reversed and dismissed.

                                         Record No. 0257-00-3,
                                         affirmed and remanded.




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