                   COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Annunziata and Senior Judge Hodges
Argued at Alexandria, Virginia


GARY WAYNE STEED
                                          MEMORANDUM OPINION * BY
v.   Record No. 2602-00-4                 JUDGE WILLIAM H. HODGES
                                             OCTOBER 23, 2001
COMMONWEALTH OF VIRGINIA


            FROM THE CIRCUIT COURT OF CULPEPER COUNTY
                      John R. Cullen, Judge

          Jeffrey S. Larson for appellant.

          Stephen R. McCullough, Assistant Attorney
          General (Mark L. Earley, Attorney General;
          Shelly R. James, Assistant Attorney General,
          on brief), for appellee.


     Gary Wayne Steed, appellant, appeals his conviction for

possession of cocaine.    He challenges the sufficiency of the

evidence to prove beyond a reasonable doubt that he constructively

possessed the cocaine.    For the following reasons, we affirm

appellant's conviction.

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

favorable to the Commonwealth, granting to it all reasonable

inferences fairly deducible therefrom.'"     Archer v.

Commonwealth, 26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997)

(citation omitted).


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
       So viewed, the evidence proved that Trooper M.C. Woodard

stopped a car driven by appellant for a traffic violation.

Woodard testified the area where he stopped appellant was a

"known drug area."   Woodard approached the driver's window and

asked appellant for his driver's license and car registration.

As Woodard stood near the car, he saw "a small white rock

substance" approximately the size of a BB located on the seat

between appellant's legs.   Woodard stated that the rock was

"laying freely on top of the seat between [appellant's] legs."

Woodard suspected the item was crack cocaine.     He retrieved the

item and asked appellant about it.      Appellant stated he knew

nothing about the "rock" and that he did not smoke crack

cocaine.   Woodard testified that appellant "was very nervous,

especially after I had located the rock."     Laboratory analysis

confirmed that the substance was cocaine.

       William Riley, the owner of the car, was seated in the

front passenger seat of the car.   Riley told Woodard the rock

could have been a piece of rock salt spread on the snow-covered

roads by the Highway Department.   No rock salt was found in the

car.

       "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 control.'"      Logan v.

                                - 2 -
              , 19 Va. App. 437, 444, 452 S.E.2d 364, 368-69

(1994) (en banc) (citations omitted).    Constructive possession

may be established by circumstantial evidence provided such

evidence excludes every reasonable hypothesis of innocence that

flows from the evidence.    See Tucker v. Commonwealth, 18 Va.

App. 141, 143, 442 S.E.2d 419, 420 (1994).   Whether a hypothesis

of innocence is reasonable is a question of fact.    See Cantrell

v. Commonwealth, 7 Va. App. 269, 290, 373 S.E.2d 328, 339

(1988).   The Commonwealth "need not affirmatively disprove all

theories which might negate the conclusion that the defendant

[possessed the cocaine], but the conviction will be sustained if

the evidence excludes every reasonable hypothesis of innocence."

Higginbotham v. Commonwealth, 216 Va. 349, 353, 218 S.E.2d 534,

537 (1975).

           Ownership or occupancy of a vehicle or of
           premises where illicit drugs are 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 the items in the vehicle or on
           the premises in order to prove that the
           owner or occupant constructively possessed
           the contraband . . . . Furthermore, proof
           that a person is in close proximity to
           contraband is a relevant fact that,
           depending on the circumstances, may tend to
           show that, as an owner or occupant of
           property or of a vehicle, the person
           necessarily knows of the presence, nature,
           and character of a substance that is found
           there.

Burchette v. Commonwealth, 15 Va. App. 432, 435, 425 S.E.2d 81,

83 (1992) (citations omitted).

                                 - 3 -
    The cocaine was in plain view, located between appellant's

legs, on top of appellant's seat in the car.    Although the

passenger owned the car, the rock was in close proximity to

appellant.   Furthermore, the trier of fact need not accept

appellant's statement that he did not know about the presence of

the drug.    See Rollston v. Commonwealth, 11 Va. App. 535, 547,

399 S.E.2d 823, 830 (1991).   An accused's claims of innocence

may be considered as mere fabrications to conceal guilt.       See

id. at 548, 399 S.E.2d at 830.     In addition, appellant became

more nervous after Woodard discovered the cocaine.

     The fact finder believed the Commonwealth's evidence and

rejected appellant's statements.    "The credibility of the

witnesses and the weight accorded the evidence are matters

solely for the fact finder who has the opportunity to see and

hear that evidence as it is presented."     Sandoval v.

Commonwealth, 20 Va. App. 133, 138, 455 S.E.2d 730, 732 (1995).

The Commonwealth's evidence was competent, was not inherently

incredible, and was sufficient to prove beyond a reasonable

doubt that appellant was aware of the presence and character of

the cocaine he constructively possessed.

     Accordingly, we affirm the conviction.

                                                          Affirmed.




                                 - 4 -
Benton, J., dissenting.

     To prove beyond a reasonable doubt that an accused

constructively possessed a controlled substance, "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 [accused] 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).   Furthermore, Code § 18.2-250

could not be clearer:    "Upon the prosecution of a person [for

possession of a controlled substance], ownership or occupancy of

. . . [a] vehicle upon or in which a controlled substance was

found shall not create a presumption that such person either

knowingly or intentionally possessed such controlled substance."

          [W]ell established principles apply to
          testing the sufficiency of circumstantial
          evidence. . . .

             "[I]f the proof relied upon by the
          Commonwealth is wholly circumstantial, as it
          here is, then to establish guilt beyond a
          reasonable doubt all necessary circumstances
          proved must be consistent with guilt and
          inconsistent with innocence. They must
          overcome the presumption of innocence and
          exclude all reasonable conclusions
          inconsistent with that of guilt. To
          accomplish that, the chain of necessary
          circumstances must be unbroken and the
          evidence as a whole must satisfy the guarded
          judgment that both the corpus delicti and
          the criminal agency of the accused have been
          proved to the exclusion of any other
          rational hypothesis and to a moral
          certainty."

                                - 5 -
                But, circumstances of suspicion, no
             matter how grave or strong, are not proof of
             guilt sufficient to support a verdict of
             guilty. The actual commission of the crime
             by the accused must be shown by evidence
             beyond a reasonable doubt to sustain his
             conviction.

Clodfelter v. Commonwealth, 218 Va. 619, 623, 238 S.E.2d 820,

822 (1977) (citations omitted).

        The evidence proved the officer approached the car at

10:00 p.m., shined his flashlight into the car, and saw a small

rock-like object he believed was cocaine.    No evidence proved

that Gary Wayne Steed was aware of the presence or character of

the small object on the seat of the car.    The car was not

Steed's; it was owned by a passenger in the car.

        The officer testified that the object was approximately the

size of a BB pellet.    He also testified that it was "not down in

the crack of [Steed's] pants or anything, it's just laying

freely on top of the seat between his legs."    No evidence proved

that Steed had touched it or was aware of it before the officer

illuminated the seat with his flashlight.    No evidence proved

that other trash was not in the car and on the seats.

        The trier of fact had to speculate that Steed would have

seen such an object on the seat of the car at 10:00 p.m., in the

dark.    Moreover, no evidence in this record suggests that, even

if Steed saw the object while he was driving his friend's car,

he recognized it to be cocaine.    Thus, the evidence proved only

Steed's proximity to the object.    "Evidence merely that the

                                 - 6 -
accused was in the proximity of controlled substances is

insufficient . . . to prove that the accused was aware of the

presence and character of a controlled substance."      Jones v.

Commonwealth, 17 Va. App. 572, 574, 439 S.E.2d 863, 864 (1994).

     After the officer seized the object and asked Steed about

it, Steed said "he didn't know anything about the rock" and told

the officer he did not own the car.      The owner of the car told

the officer, however, "that it had been snowing and that the

Highway Department [trucks] were out . . . and it could possibly

be a salt rock, rock of salt."    Although the officer testified

that he saw no rock salt in the car, any inferences that are

drawn from suspicious circumstances of the owner's explanation

are not sufficient to prove knowing possession by Steed of a

controlled substance.   Even if it is probable that the

controlled substances in the car belonged to Steed, probability

of guilt is insufficient to warrant a criminal conviction.

Crisman v. Commonwealth, 197 Va. 17, 21, 87 S.E.2d 796, 799

(1955).   Suspicious circumstances "'no matter how grave or

strong, are not proof of guilt sufficient to support a verdict

of guilty.   The actual commission of the crime by the accused

must be shown by evidence beyond a reasonable doubt to sustain

his conviction.'"   Id. (quoting Powers v. Commonwealth, 182 Va.

669, 676, 30 S.E.2d 22, 25 (1944)).      The inferences to be drawn

from the facts in this case do not exclude every reasonable



                                 - 7 -
hypothesis of innocence.   See Clodfelter, 218 Va. at 623, 238

S.E.2d at 822.

     For these reasons, I would reverse the conviction and

dismiss the indictment.




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