                      COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Agee and Senior Judge Hodges
Argued at Chesapeake, Virginia


MAURICE ANTHONY CUTLER
                                         MEMORANDUM OPINION * BY
v.   Record No. 0194-00-1                 JUDGE G. STEVEN AGEE
                                              MARCH 20, 2001
COMMONWEALTH OF VIRGINIA


        FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
                     Randolph T. West, Judge

          James O. Broccoletti (Zoby & Broccoletti, on
          brief), for appellant.

          Virginia B. Theisen, Assistant Attorney
          General (Mark L. Earley, Attorney General, on
          brief), for appellee.


     The trial judge convicted Maurice Anthony Cutler of

possession with the intent to distribute more than one-half

ounce but less than five pounds of marijuana in violation of

Code § 18.2-248.1.   On appeal, Cutler challenges the sufficiency

of the evidence to prove both that he possessed the marijuana

and that weight of the marijuana exceeded one-half ounce.    We

affirm his conviction.

                                I.

     On appeal, we review the evidence in the light most

favorable to the Commonwealth, granting to it all reasonable


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
inferences fairly deducible therefrom.    Higginbotham v.

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

evidence proved officers of the City of Newport News police

force arrived at a service station in the early morning of

February 25, 1999, because of a tip from a confidential

informant.    They observed Cutler sitting in the driver's seat of

a vehicle with a passenger, Dexter Drew, next to him on the

front seat.   Two other men entered Cutler's vehicle and sat in

the back seat.   When the officers activated their emergency

equipment, Cutler sped away from them.   Following Cutler's

vehicle, the officers saw the rear driver's side door open and a

backpack came out of the vehicle.   The officers pursued the

vehicle until Cutler's driving rendered that pursuit too

dangerous.

     The backpack that the officers recovered contained a large

plastic bag, which in turn contained two smaller zip-lock bags.

These two smaller bags each contained solid blocks of marijuana

that together weighed one pound, six ounces.   On the bag

containing the larger amount of marijuana, the police found five

fingerprints, which were later matched to Cutler.   That bag also

contained a latent "print not of value" that could not be

identified.

     The police arrested Cutler later that morning.    Initially,

he denied that he had fled from the police.    Then he told the

officer that he had rented the vehicle he was driving, but

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misinformed the officer about the location of the vehicle.

Later, he said he evaded the officers because he had been

drinking and he feared an arrest related to his condition.     He

also said that the passenger, Dexter Drew, had possessed the

backpack.   Cutler said that he did not know what was in the

backpack, that he may have touched it, and that he had not

touched anything in the backpack.

     The trial judge convicted Cutler of possession with intent

to distribute more than one-half ounce but not more than five

pounds of marijuana.

                                 II.

     Cutler first contends the evidence does not exclude the

possibility that he touched the zip-lock bag for an innocent

purpose.    We find that the fingerprint evidence, combined with

other evidence, provides a sufficient basis for the trial judge

to have convicted Cutler.

     "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.

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

(1994) (en banc) (citation omitted).    "Circumstantial evidence

of possession is sufficient to support a conviction provided it



                                - 3 -
excludes every reasonable hypothesis of innocence."    Spivey v.

Commonwealth, 23 Va. App. 715, 724, 479 S.E.2d 543, 548 (1997).

     From the evidence presented, the fact finder could infer

beyond a reasonable doubt that Cutler was aware of the presence

and character of the marijuana contained inside the backpack and

that it was subject to his dominion and control.   Although there

were other people in the vehicle with Cutler when the marijuana

was thrown from the vehicle, the evidence proved Cutler's

fingerprints were on a bag of marijuana.   Moreover, Cutler's

flight from the police and his inconsistent statements to the

police about that flight and the location of the vehicle provide

the "other circumstances" which reasonably exclude innocence.

Cutler's behavior is most consistent with a desire to separate

himself from the backpack and the vehicle in which the police

had seen him driving.

     It is not a reasonable hypothesis that Cutler put his

fingerprints on the zip-lock bag but did not possess the

marijuana the police found in it.   Even if someone else threw

the backpack from the vehicle, constructive possession need not

be exclusive.   Barlow v. Commonwealth, 26 Va. App. 421, 429, 494

S.E.2d 901, 905 (1998).   The evidence provided no alternative

explanation for Cutler's fingerprints on the zip-lock bag, and

we cannot provide a hypothesis for him.    "While the defendant

does not have the obligation to testify himself or to offer

testimony to explain the presence of his prints, a court cannot

                               - 4 -
supply evidence that is lacking."        Avent v. Commonwealth, 209

Va. 474, 480, 164 S.E.2d 655, 659 (1968) (citation omitted).

Here, a reasonable hypothesis of innocence does not arise from

the evidence at trial.

     This case differs from Granger v. Commonwealth, 20 Va. App.

576, 459 S.E.2d 106 (1995), where the assailant used a whisky

bottle to bludgeon and rob his victim.       The only evidence there

against the defendant was a set of his fingerprints found on the

bottle which was lying in a public area.       We concluded that the

evidence was not inconsistent with the explanation that the

defendant could simply have handled the bottle at a time other

than the time of the assault.    In this case, unlike Granger, the

police saw Cutler in the vehicle from which the backpack

containing his fingerprints was discarded.       An innocent

explanation of fingerprints on a whisky bottle found in a public

area is more likely than an innocent explanation of

fingerprints on a zip-lock bag contained within another bag

contained within a backpack.    From this evidence, the trial

judge was free to infer from the evidence against Cutler that he

was guilty of the charged crime.

                                 III.

     Cutler also contends that the Commonwealth never proved the

exact weight of the marijuana.    Proof that an accused possessed

the weight of marijuana proscribed by the statute is an

essential element of the offense that the Commonwealth must

                                 - 5 -
prove beyond a reasonable doubt.    Hill v. Commonwealth, 17 Va.

App. 480, 484-85, 438 S.E.2d 296, 299 (1993).   Although the

Commonwealth never proved the weight of the bag that bore

Cutler's fingerprint without the weight of the other bag, the

trial judge was free to conclude that Cutler was in constructive

possession of both zip-lock bags.   Of the one pound, six ounces

of marijuana contained in the two zip-lock baggies, the larger

block of marijuana was in the baggie with the fingerprints.

     The evidence was sufficient for the trial judge to conclude

beyond a reasonable doubt that Cutler possessed the requisite

amount of marijuana.

     For these reasons, we affirm the conviction.

                                                         Affirmed.




                              - 6 -
Benton, J., dissenting.

        When the Commonwealth relies on circumstantial evidence to

prove guilt, "all necessary circumstances proved must be

consistent with guilt and inconsistent with innocence and must

exclude every reasonable hypothesis of innocence."     Bishop v.

Commonwealth, 227 Va. 164, 169, 313 S.E.2d 390, 393 (1984).

             [W]hile [the accused's] fingerprint found at
             the scene of the crime may be sufficient
             under the circumstances to show [the
             accused] was there at some time,
             nevertheless, in order to show [the accused]
             was the criminal agent, such evidence must
             be coupled with evidence of other
             circumstances tending to reasonably exclude
             the hypothesis that the print was impressed
             at a time other than that of the crime.

Turner v. Commonwealth, 218 Va. 141, 146, 235 S.E.2d 357, 360

(1977).    Furthermore, the principle is well established that

"[w]here facts are established which are susceptible of two

different interpretations, one of which is consistent with the

innocence of the accused, the jury or the judge trying the case

cannot arbitrarily adopt the interpretation which incriminates

him."     Williams v. Commonwealth, 193 Va. 764, 772, 71 S.E.2d 73,

77 (1952); Commonwealth v. Smith, 259 Va. 780, 782, 529 S.E.2d

78, 79 (2000).    Instead, "[t]he interpretation more favorable to

the accused should be adopted unless it is untenable under all

the facts and circumstances of the case."     Williams, 193 Va. at

772, 71 S.E.2d at 77.




                                 - 7 -
     The evidence in this record was insufficient to prove

beyond a reasonable doubt that Cutler possessed the marijuana.

All the officers who observed an object being thrown from the

vehicle testified it was thrown from the rear door.   No evidence

proved this was accomplished by Cutler, who was driving the

vehicle.   The only reasonable inference to draw from this

evidence is that someone other than Cutler possessed and

discarded the marijuana from the rear door of the vehicle.

     No person ever saw Cutler touch the marijuana.    When the

officer interviewed Cutler, Cutler explained that he initially

evaded the police out of fear of arrest for drunken driving.

Cutler identified Drew, the passenger, to the officer as the

person that owned the backpack.   The officer confirmed Drew was

in the vehicle.   Thus, the only evidence in the record

concerning the origin of the backpack is Cutler's statement that

Drew had it.   Significantly, when Cutler and Drew were searched,

the only contraband seized was a one-quarter ounce bag of

marijuana which was in Drew's shoe.    This evidence further

supports Cutler's assertion that Drew possessed and maintained

the backpack containing the marijuana.   I would hold that this

evidence raises the reasonable hypothesis, not excluded by the

evidence, that one of Cutler's passengers possessed the drugs

without Cutler's knowledge.   Fearing a stop by the police, the

passenger threw the backpack out the rear door so that the



                               - 8 -
police would not find it during a possible search of the

vehicle.

     The circumstantial evidence in this case proves only that

at some time Cutler touched a zip-lock bag.   In Granger v.

Commonwealth, 20 Va. App. 576, 459 S.E.2d 106 (1995), we

reversed a conviction for malicious wounding and robbery where

"the Commonwealth's case only proved that [the accused] once

handled the bottle" that was used to strike the victim.     Id. at

578, 459 S.E.2d at 106.   We held that the "[finger]print

evidence [did] not show when [the accused] handled the bottle or

that he handled it at the scene of the crime."    Id.   Here, as in

Granger, the "circumstantial evidence does not exclude the

hypothesis that [Cutler] may have handled the [bag] for an

innocent purpose before" the marijuana was placed in it.      Id. at

577, 459 S.E.2d at 106.   Fingerprints on the bag simply proved

that Cutler previously touched the bag at an unspecified time

under unknown circumstances.   The Commonwealth produced no

evidence narrowing the time during which Cutler may have touched

this bag.   Certainly no evidence proved that Cutler touched the

bag after marijuana was put in it.

     In Varker v. Commonwealth, 14 Va. App. 445, 417 S.E.2d 7

(1992), the accused's handprint was found outside of an office

that had been burgled.    Even though the print was near the point

of entry, we held that such evidence only proved the accused was

in the office "at some point in time."    Id. at 447, 164 S.E.2d

                                - 9 -
at 9.    As in Varker, the evidence does not exclude the

hypothesis that Cutler earlier handled the bag for an innocent

purpose.    A zip-lock bag is not contraband.   No criminal act

occurs from the mere handling of a zip-lock bag.    The evidence

established that Cutler had picked Drew up earlier on the day of

the offense.    Drew was in the vehicle when the officers first

saw it.    No evidence proved that Cutler had not visited Drew on

other occasions, and the evidence certainly did not disprove

that Cutler did not innocently handle the bag at an earlier

occasion prior to the marijuana being placed in the bag.

        When, as here, the evidence is susceptible to two different

interpretations, we are required to adopt the interpretation

favorable to the accused unless it is untenable under all the

facts and circumstances.    Cutler's innocent touch of only one of

the zip-lock bags is not untenable under the facts of this case.

If Cutler had been alone in the vehicle or if the police had

seen him throw the bag from the vehicle, then this case might be

different.    Under the circumstances proved in this record,

however, the evidences raises no more than a suspicion of guilt.

Smith, 259 Va. at 784, 529 S.E.2d at 79.     "'Suspicion, however,

no matter how strong is insufficient to sustain a criminal

conviction.'"     Id. (quoting Stover v. Commonwealth, 222 Va. 618,

624, 283 S.E.2d 194, 197 (1981)).    Not even a probability of

guilt is sufficient to warrant the conclusion beyond a

reasonable doubt that Cutler possessed the marijuana.      See

                                - 10 -
Crisman v. Commonwealth, 197 Va. 17, 21, 87 S.E.2d 796, 799

(1955) (finding insufficient evidence to convict a defendant

where heroin was in plain view by his feet in a car occupied by

five men).

     On this evidence, I would hold that the Commonwealth has

not borne it burden of proving guilt beyond a reasonable doubt,

and I would reverse the conviction.   I dissent.




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