                  COURT OF APPEALS OF VIRGINIA


Present: Judges Willis, Elder and Annunziata
Argued at Richmond, Virginia


DANIEL CHARLES, SR.
                                           MEMORANDUM OPINION * BY
v.   Record No. 2310-00-2                JUDGE ROSEMARIE ANNUNZIATA
                                               DECEMBER 18, 2001
COMMONWEALTH OF VIRGINIA


             FROM THE CIRCUIT COURT OF HENRICO COUNTY
                      George F. Tidey, Judge

          Joseph W. Kaestner (Kaestner Pitney & Jones,
          P.C., on brief), for appellant.

          Linwood T. Wells, Jr., Assistant Attorney
          General (Mark L. Earley, Attorney General,
          on brief), for appellee.


     The trial court, without a jury, convicted Daniel Charles,

Sr. of possession of more than one-half ounce, but not more than

five pounds, of marijuana with intent to distribute and

sentenced him to twelve months in jail.    He appeals his

conviction, contending that the evidence was insufficient to

support a finding of constructive possession or possession with

intent to distribute.   For the reasons that follow, we reverse.

                            BACKGROUND

     Officer Dan Allen of the Henrico Division of Police legally

stopped a pickup truck that appeared to be trying to avoid him.


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
He found the driver and the defendant "acting very nervous."

Asked why she was trying to "duck" him, the driver explained

that her passenger, Daniel Charles, told her that his license

had been suspended and that he was wanted in the City of

Richmond.   Allen searched Charles with his consent and found two

marijuana cigarettes in his inside coat pocket, a pager in his

belt clip, and $769.19 in a variety of denominations in his

pockets.    Next, Allen searched the vehicle with the driver's

consent.    Under the passenger seat where Charles had been

sitting, the officer found a ziploc bag containing another bag

with a large quantity of marijuana in it.   Analysis showed that

the marijuana in the bag and the cigarettes weighed a total of

15.1 ounces.

                               ANALYSIS

     When sufficiency of the evidence is challenged on appeal,

we consider the evidence "in the light most favorable to the

Commonwealth, the prevailing party, and grant to it all

reasonable inferences fairly deducible therefrom."    Hagy v.

Commonwealth, 35 Va. App. 152, 157, 543 S.E.2d 614, 616 (2001)

(citation omitted).   Furthermore, we "permit the verdict to

stand unless plainly wrong."    George v. Commonwealth, 242 Va.

264, 278, 411 S.E.2d 12, 20 (1991), quoted in Tibbs v.

Commonwealth, 31 Va. App. 687, 707, 525 S.E.2d 579, 588 (2000).




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     "To establish possession of a controlled substance, it

generally is necessary to show that the defendant was aware of

the presence and character of the particular substance and was

intentionally and consciously in possession of it."   Gillis v.

Commonwealth, 215 Va. 298, 301, 208 S.E.2d 768, 771 (1974).

However, "suspicion or even probability of guilt is not

sufficient.   There must be an unbroken chain of circumstances

'proving the guilt of the accused to the exclusion of any other

rational hypothesis and to a moral certainty.'"   Gordon v.

Commonwealth, 212 Va. 298, 300, 183 S.E.2d 735, 736 (1971)

(quoting Brown v. Commonwealth, 211 Va. 252, 255, 176 S.E.2d

813, 815 (1970)).   The Commonwealth must point to sufficient

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); see also Andrews v.

Commonwealth, 216 Va. 179, 182, 217 S.E.2d 812, 814 (1975).

     We find that the Commonwealth has failed to demonstrate

acts or conduct from which the court could properly conclude

beyond a reasonable doubt that Charles knowingly possessed the

bag of marijuana.   The Commonwealth established only that

Charles sat in the passenger seat of a vehicle owned by the


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driver's boyfriend, under which a bag containing a large

quantity of marijuana lay.   The Commonwealth offered no evidence

that Charles placed the bag of marijuana under the seat or that

he knew the bag was there.   It is well settled that proof of

proximity to a controlled substance is insufficient, standing

alone, to establish possession.    Womack v. Commonwealth, 220 Va.

5, 7, 255 S.E.2d 351, 352 (1979); White v. Commonwealth, 24 Va.

App. 446, 452, 482 S.E.2d 876, 879 (1997); Brown v.

Commonwealth, 15 Va. App. 1, 9, 421 S.E.2d 877, 882 (1992) (en

banc); cf. Code § 18.2-250 ("[O]ccupancy of . . . [a]

vehicle . . . in which a controlled substance was found shall

not create a presumption that such person either knowingly or

intentionally possessed such controlled substance.").

     The Commonwealth claims that Charles' possession of two

cigarettes of marijuana connects him to the ziploc bag

containing the larger quantity of marijuana.     However, the

evidence established no connection between the cigarettes in

Charles' possession and the plastic bag of marijuana under the

car seat in which he sat.    See Monroe v. Commonwealth, 4 Va.

App. 154, 156, 355 S.E.2d 336, 337 (1987) (finding that

possession of a small quantity of drugs usually implies

possession for personal use).   The two drugs found by the police

in this case were markedly different.     The marijuana Charles had

on his person was in a different form and packaged differently

from the marijuana under his seat.      The Commonwealth offered no

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lab reports indicating that the cigarettes and the marijuana

found under the seat were of the same type and no testimony that

the two were even the same color.   In fact, the only connection

between the two is that they are forms of marijuana, a fairly

common narcotic.    See Ritter v. Commonwealth, 210 Va. 732, 742,

173 S.E.2d 799, 806 (1970) (noting that many are familiar with

the drug).   The association between the two is thus too tenuous

to prove Charles had dominion and control over the drugs under

his seat.    Cf. Womack, 220 Va. at 8, 255 S.E.2d at 353 (holding

that "[t]he fact that the two pentobarbital capsules found on

the person of the defendant were identical to 77 other such

capsules seized by the police, is significant on the question

whether the defendant had dominion or control over the drugs

expressly listed in the indictment" (emphasis added)).

     The Commonwealth, however, argues that the Virginia Supreme

Court's statement in Colbert v. Commonwealth that a fact finder

might infer that a small quantity of drugs seized "was what

remained from a larger supply held for distribution," 219 Va. 1,

4, 244 S.E.2d 748, 749 (1978), controls our inquiry on this

issue.   Such reliance is misplaced.    The reasoning in Colbert

that the Commonwealth refers to applied only to its analysis of

"intent to distribute," not to the establishment of possession,

a fact established by other evidence.     Id.   The Court did not

find, as the Commonwealth suggests, that the possession of the

smaller quantity of marijuana provided sufficient evidence to

                                - 5 -
convict the defendant of possession of a much larger, separately

packaged, and elsewhere located quantity of marijuana.    Rather,

in determining possession, the Court considered the defendant's

inculpatory conduct, his proximity to the drugs, and his control

of the premises where the drugs were found.    Id. at 3-4, 244

S.E.2d at 749.   Specifically, the Court noted that the police

observed a bucket with five "nickel bags" of marijuana weighing

a total of 1.91 ounces between the defendant's legs, and

observed the defendant, presumably fearful of detection, move

the bucket and place it behind a seat.    Id. at 4, 244 S.E.2d at

749.   Here, the Commonwealth has not presented comparable

evidence of inculpatory conduct or evidence of Charles' control

over the vehicle in which the drugs were found.

       The remaining evidence offered by the Commonwealth,

Charles' possession of a pager and $769.19 in cash, is similarly

problematic.   While we have consistently found that these facts

may be probative of "intent to distribute," they do not

demonstrate that Charles was aware of the presence and character

of the marijuana under his seat, or that he controlled it.       See

Burchette v. Commonwealth, 15 Va. App. 432, 437, 425 S.E.2d 81,

85 (1992) (rejecting the possession of guns, cellular telephones

and beepers as evidence linking the defendant to marijuana found

in his car); see also Glenn v. Commonwealth, 10 Va. App. 150,

155, 390 S.E.2d 505, 508 (1990) (noting that the unexplained

possession of a large amount of cash in small denominations

                                - 6 -
constitutes evidence of "intent to distribute," but not

including such evidence in its analysis of possession); Glasco

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

(1998) (finding possession of a pager and a large amount of cash

probative of "intent to distribute" controlled substances but

not citing that evidence as probative of possession (citing

White, 24 Va. App. at 453, 482 S.E.2d at 879)).

     In short, the Commonwealth's only evidence that Charles

knew of and controlled the drugs under his seat is that he was

sitting on the seat.   This evidence alone cannot sustain his

conviction for possession of marijuana.   Consequently, we cannot

say that he is guilty of possession with intent to distribute.

Therefore, we reverse the judgment of conviction and dismiss the

indictment.

                                                       Reversed.




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