COURT OF APPEALS OF VIRGINIA 

Present: Judges Elder, Felton and Senior Judge Hodges 

Argued at Chesapeake, Virginia 

JASON DALE TUELL 

 MEMORANDUM OPINION* BY 

v. Record No. 2018-01-1 JUDGE WILLIAM H. HODGES 

 OCTOBER 22, 2002 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE 

Russell I. Townsend, Jr., Judge 

 Robert G. Byrum (Shames & Byrum, P.C., on 

brief), for appellant. 

 Stephen R. McCullough, Assistant Attorney 

General (Jerry W. Kilgore, Attorney General, 

on brief), for appellee. 

 Jason Dale Tuell, appellant, appeals his convictions of 

possession with the intent to distribute Ecstasy, possession of 

diazepam (Valium), and possession with the intent to distribute 

between one-half ounce and five pounds of marijuana. Appellant 

contends the evidence was not sufficient to prove appellant 

possessed the drugs. We agree and reverse the convictions. 

BACKGROUND

 On May 4, 2000, police executed a search warrant for the 

residence leased to appellant and John McCarthy. Appellant was 

not present during the search of the residence, though McCarthy 

 

* Pursuant to Code § 17.1-413, this opinion is not 

designated for publication.
and his girlfriend were. In appellant's downstairs bedroom, the 

police found twenty-six Ecstasy pills and seventy-four Valium 

pills in the bottom drawer of a nightstand situated to the left of 

the bed. Police also found marijuana in another drawer of the 

same nightstand. In the nightstand to the right of the bed, 

police found a checkbook for a joint account belonging to 

appellant and another person, as well as photographs of appellant. 

On the top shelf of the closet, police found a shoebox containing 

marijuana, packaged in separate baggies. The shoebox also 

contained plastic baggies, commonly used for distribution of 

marijuana, a set of hanging scales, and a black sports bag with 

another checkbook from the joint account in it. Police discovered 

more marijuana in a dresser drawer. In the top right drawer of 

the dresser, police found appellant's wallet, which contained his 

driver's license, social security card, credit cards and a health 

insurance card. 

 McCarthy testified on behalf of the Commonwealth. McCarthy 

stated the drugs found in appellant's bedroom were not his. In 

his testimony, McCarthy also indicated he had not seen appellant 

in the residence for four days, though that was not uncommon since 

they had different schedules. McCarthy recounted that he had 

never seen appellant use or sell drugs and that he was surprised 

that the police found narcotics in appellant's room. McCarthy 

testified that at least twelve visitors had recently been to the 

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residence and three or four different people had spent the night 

in appellant's room. Further, in order to get to the backyard, 

people were required to pass through appellant's room to go 

outside to smoke or to take out the trash. 

ANALYSIS

In reviewing a challenge to the sufficiency 

of evidence to sustain a conviction, we are 

guided by well-established principles. We 

view the evidence in the light most 

favorable to the Commonwealth and accord to 

that evidence all reasonable inferences that 

flow from it. In reviewing that evidence, 

however, "we cannot . . . disregard 

credible, unimpeached evidence of the 

Commonwealth which exculpates the defendant 

and creates a reasonable doubt." A 

conviction based on circumstantial evidence 

may be sustained only if the evidence, when 

taken as a whole, excludes every reasonable 

hypothesis of innocence. Thus, the evidence 

must be wholly consistent with guilt and 

wholly inconsistent with innocence. 

Scruggs v. Commonwealth, 19 Va. App. 58, 60-61, 448 S.E.2d 663, 

664-65 (1994) (citation omitted). 

 Appellant was not present during the search of the 

residence. Thus, appellant was not found in actual possession 

of the contraband. The Commonwealth relies on a theory of 

constructive possession. 

Constructive possession of contraband may be 

shown by proof that the substance is known 

to the defendant and subject to his dominion 

and control. Knowledge of the presence and 

character of the drug may be shown by 

evidence of the acts, statements, or conduct 

of the accused. While an accused's 

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occupancy of the premises does not give rise 

to a presumption of possession, this factor 

may be considered with other evidence in 

determining whether a defendant 

constructively possessed drugs. 

Garland v. Commonwealth, 225 Va. 182, 184, 300 S.E.2d 783, 784 

(1983) (citations omitted). 

 Appellant concedes that the residence was leased to him and 

that the room in which the drugs were found was his bedroom. 

The additional evidence linking appellant to the drugs is the 

presence of his wallet in the dresser where marijuana was also 

found, his checkbook in a nightstand where no drugs were found, 

and a sports bag containing an additional checkbook in the 

shoebox where the majority of the marijuana was found. 

 The only personal item found in the same physical location 

as any drugs was one of the checkbooks. Even that item, 

however, was in a separate bag within the shoebox. Further, the 

checkbooks were for a joint account held by appellant and 

another person. No evidence indicated how long the various 

items were in place or who placed them where they were found. 

Though all the contraband was tested for fingerprints, only one 

print was detected and that fingerprint did not match appellant. 

 Additionally, McCarthy testified the last time he saw 

appellant in the residence was four days prior to the search. 

McCarthy did not know appellant to use or sell drugs and, in 

fact, was "shocked" to learn drugs were found in his room. 

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McCarthy also indicated the bedroom was used not only by 

appellant, but at least three other people who had spent the 

night in appellant's bed. Moreover, at least twelve people had 

been to the residence, several of whom had to pass through 

appellant's bedroom to smoke in the backyard or to take out the 

trash. 

 While all the evidence creates a strong suspicion that 

appellant possessed the drugs, "[s]uspicion . . . no matter how 

strong, is insufficient to sustain a criminal conviction." Id.

at 184-85, 300 S.E.2d at 785 (citation omitted). We cannot 

ignore the credible evidence that many people other than 

appellant had access to and used appellant's bedroom. Finally, 

none of appellant's personal items conclusively established that 

appellant knew of the presence of the contraband or exercised 

any dominion or control over the drugs. Accordingly, we reverse 

the judgment of the trial court and dismiss the indictments. 

 Reversed and dismissed. 

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