                    COURT OF APPEALS OF VIRGINIA


Present: Judges Bray, Frank and Senior Judge Hodges
Argued at Chesapeake, Virginia


DEBBY JO WALLMAN
                                           MEMORANDUM OPINION * BY
v.   Record No. 0169-99-1                   JUDGE RICHARD S. BRAY
                                                 MAY 2, 2000
COMMONWEALTH OF VIRGINIA


         FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
                     Johnny E. Morrison, Judge

          Dianne G. Ringer, Senior Assistant Public
          Defender, for appellant.

          Steven A. Witmer, Assistant Attorney General
          (Mark L. Earley, Attorney General; Donald E.
          Jeffrey, III, Assistant Attorney General, on
          brief), for appellee.


     Debby Jo Wallman (defendant) was convicted in a bench trial

for possession of heroin in violation of Code § 18.2-250.    On

appeal, she contends that the evidence was insufficient to support

the conviction.    We agree and reverse the trial court.

     The parties are fully conversant with the record, and this

memorandum opinion recites only those facts necessary to a

disposition of the appeal.

     "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,

     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997) (citation omitted).

The credibility of the witnesses, the weight accorded testimony,

and the inferences drawn from the proven facts are matters to be

determined by the fact finder.    See Long v. Commonwealth, 8 Va.

App. 194, 199, 379 S.E.2d 473, 476 (1989).    The judgment of the

trial court will not be disturbed unless plainly wrong or

unsupported by evidence.    See Code § 8.01-680.   "However, a [trial

court's] conclusion . . . based on evidence not in material

conflict does not have the same binding weight on appeal."

Durrette v. Durrette, 223 Va. 328, 332, 288 S.E.2d 432, 434

(1982).

                                     I.

        The instant record disclosed that Portsmouth Police Officer

A.M. Williams observed a "pickup truck" stop unlawfully "on the

side of the road" and a passenger exit the vehicle.    The driver,

then alone, returned the truck to the roadway and "began taking

off."    Williams "caught up," "activated [his] emergency equipment"

and effected a stop.    Upon approaching the vehicle, Williams

determined that defendant was the operator and requested her

"license and registration."    Unable to produce a license,

defendant, appearing "very nervous," confessed that her privileges

had been suspended.    Williams then asked defendant "to step away

from" the vehicle and placed her under arrest.

        After securing defendant in the police car, Williams returned

to the truck and "observed a purple Crown Royal liquor bag [on]

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the driver's floorboard," "in plain view," "easily seen," directly

below "where your knees are . . . when you're driving."     Opening

the opaque bag, which was "pulled shut by [a] draw string,"

Williams discovered "numerous syringes, two metal spoons [with

suspected heroin residue], and an empty deck of what [he] believed

to be heroin."    Subsequent laboratory analysis identified the

residue as heroin and cocaine.    Further investigation revealed

that defendant's "live-in boyfriend" was the registered owner of

the truck.

                                    II.

             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."

Drew v. Commonwealth, 230 Va. 471, 473, 338 S.E.2d 844, 845

(1986) (quoting Powers v. Commonwealth, 227 Va. 474, 476, 316

S.E.2d 739, 740 (1984)).    "[T]he possession need not always be

exclusive.    The defendant may share [the drugs] with one or

more.   The duration of the possession is immaterial and need not

always be actual possession."     Ritter v. Commonwealth, 210 Va.

732, 741, 173 S.E.2d 799, 806 (1970).     "Although mere proximity

to the drugs is insufficient to establish possession, and

occupancy of [a] vehicle does not give rise to a presumption of

possession . . . both are factors which may be considered in


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determining whether a defendant possessed drugs."    Josephs v.

Commonwealth, 10 Va. App. 87, 100, 390 S.E.2d 491, 498 (1990)

(en banc).

     Where "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.'"     Garland v. Commonwealth,

225 Va. 182, 184, 300 S.E.2d 783, 784 (1983) (quoting Inge v.

Commonwealth, 217 Va. 360, 366, 228 S.E.2d 563, 567 (1976)).

"The Commonwealth need only exclude reasonable hypotheses of

innocence that flow from the evidence, not those that spring

from the imagination of the defendant."    Hamilton v.

Commonwealth, 16 Va. App. 751, 755, 433 S.E.2d 27, 29 (1993).

"Whether a hypothesis of innocence is reasonable is a question

of fact, and a finding by the trial court is binding unless

plainly wrong."   Glasco v. Commonwealth, 26 Va. App. 763, 774,

497 S.E.2d 150, 155 (1998) (citation omitted).

     Here, defendant was the operator of a vehicle owned by

another, and no evidence established the duration of her

possession or familiarity with the vehicle.    The bag containing

the drug paraphernalia and attendant residue, although in "plain

view" on the floorboard, was opaque and closed, its contents

hidden from casual observation.   Apart from defendant's

"nervous[ness]," a response consistent with anxiety attributable

to her suspended license, the record reveals no furtive

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movements, statements or other circumstances suggestive of an

awareness that the bag contained contraband.   Such evidence

fails to establish that defendant had the requisite knowledge of

the presence and character of the offending contents.

     Accordingly, we find the evidence insufficient and reverse

the conviction.

                                        Reversed and dismissed.




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