                  COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Moon, Judges Coleman and Elder
Argued at Richmond, Virginia

JAMES EDWARD CRAWLEY, JR.

v.   Record No. 1582-94-2              MEMORANDUM OPINION * BY
                                     CHIEF JUDGE NORMAN K. MOON
COMMONWEALTH OF VIRGINIA                  DECEMBER 29, 1995

         FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                    James B. Wilkinson, Judge

          Maureen L. White, Assistant Public Defender
          (David J. Johnson, Public Defender, on
          brief), for appellant.
          Thomas D. Bagwell, Assistant Attorney General
          (James S. Gilmore, III, Attorney General, on
          brief), for appellee.


     James Edward Crawley Jr. was convicted of possession of

cocaine and heroin with intent to distribute.    He appeals his

convictions on the ground that the evidence was insufficient to

prove that he possessed drugs.   We agree, and reverse the

convictions.

     On October 22, 1992, a detective executed a search warrant

at Room 119 of the Relax Inn.    When the detective arrived at the

room, Crawley's girlfriend was the only occupant in the room.     In

the closed drawers of a dresser and a nightstand, the police

found cocaine, heroin, scales, $560 in cash, a picture of

defendant, and clothing belonging to the defendant.   On the floor

between a dresser and a bed, the police found a folded playing

card containing a small amount of cocaine.   The defendant's

     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
girlfriend showed the detective where the drugs could be found.

The Commonwealth did not present evidence showing to whom or when

the room was registered, nor had the police done surveillance of

the room to show who had been occupying it.

     Crawley arrived at the room about fifteen minutes after the

search began.   He had in his possession two pagers, and a key to

room 119.    Crawley at first informed police that he did not know

anyone in the room; he then indicated that he was visiting his

girlfriend in the room.
     Where sufficiency of the evidence is challenged, the Court

considers the evidence in the light most favorable to the

Commonwealth and grants it all reasonable inferences deducible

therefrom.    Higginbotham v. Commonwealth, 216 Va. 349, 352, 218

S.E.2d 534, 537 (1975).   The judgment of a trial court sitting

without a jury is entitled to the same weight as a jury verdict.

Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418

(1987).

     The defendant's conviction was based on the Commonwealth's

evidence to prove constructive possession.    "To support a

conviction based on 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

the defendant was aware of both the presence and character of the

substance and that it was subject to his dominion and control.'"
 McGee v. Commonwealth, 4 Va. App. 317, 322, 357 S.E.2d 738, 740

(1987) (quoting Drew v. Commonwealth, 230 Va. 471, 473, 338

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S.E.2d 844, 845 (1986)).   Where the Commonwealth's case for

constructive possession is based on circumstantial evidence, such

evidence must be sufficiently convincing to exclude every

reasonable hypothesis except that of guilt.     Shurbaji v.

Commonwealth, 18 Va. App. 415, 423, 444 S.E.2d 549, 553 (1994);

Hairston v. Commonwealth, 5 Va. App. 183, 186, 360 S.E.2d 893,

895 (1987) (citations omitted).

     This case is similar to Clodfelter v. Commonwealth, 218 Va.

619, 238 S.E.2d 820 (1977), where the Supreme Court found the

evidence insufficient to prove constructive possession.       In that

case, drugs were found concealed behind a dresser mirror and

underneath a bed.   The room was registered to Clodfelter and he

had left some personal property there.    Clodfelter, when

questioned by the police, gave a false identity.    The Supreme

Court found that the evidence created a "strong suspicion of

guilt", but fell short of showing that the drugs were either

actually or constructively possessed by Clodfelter with an

awareness of their character.     Id. at 623, 238 S.E.2d at 822.

     Two factors that distinguish this case from Clodfelter are

the presence of Crawley's girlfriend, who knew the location of

the drugs, and the location of the drugs.    However, these

differences do not prove that Crawley knew of the nature and

presence of the drugs or exercised dominion or control over them.

In Clodfelter, the drugs could have been left by a former

occupant.   Here the drugs could have been possessed solely by the

girlfriend.   The police could not say when or whether Crawley had
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been in the room before he arrived and was arrested.   Although

his possession of a key to the room, the presence of his clothes

and photo in the room, his possession of a pager, and his false

denial of knowing his girlfriend are highly suspicious, those

factors do not prove that he exercised dominion or control over

the contraband.   Thus, the Commonwealth's evidence did not

exclude every reasonable hypothesis of innocence.    Unsupported

inferences, mere probabilities, and speculation are insufficient

to sustain these convictions.   Therefore, the judgment of the

trial court is reversed.

                                         Reversed.




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