COURT OF APPEALS OF VIRGINIA

Present: Judg es Elder, Felton an d Senior Judge Hodges Argued at Ches apeake, 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. Townse nd, Jr., Judge Robert G. Byrum (Sha mes & Byrum, P.C., on brief), for appellant. Stephen R. McCullou gh, Assistan t Attorney General (Jerry W. Kilgore, Atto rney General, on brief), for appellee.

Jason Dale Tuell, appellant, appeals his convic tions of possession with the intent to di stribute Ecstasy, possession of diazepam (Valium), and possession with the intent to distribute

between one-ha lf ounce and five pounds of marijuana. Appellant contends the evidence was not suff icient to pr ove appellant possessed the dr ugs. We agree and re verse the co nvictions.

BACKGROUND On May 4, 2000, po lice executed a sear ch warrant for the residence leas ed to appellant and John McCarthy . Appellant was not present during the search of the residence, th ough McCarthy

* Pursuant to Code § 17.1-413, this opinion is not designated for publication.and his girlfriend were. In appe llant's down stairs bedroom, the police found twenty-s ix Ecstasy pills and seventy-four Valium pills in the bottom draw er of a nightsta nd situated to the left of the bed. Police also found mari juana in another drawer of the same nightstand. In the nightstand to the right of the bed, police found a chec kbook for a joint ac count belo nging to appellant and another person, as well as photograph s of appellant. On the top shelf of th e closet, police found a shoebox co ntaining marijuana, packaged in separate baggies. The shoe box also contained plas tic baggies, commonly us ed for distri bution of marijuana, a set of ha nging scales, an d a black spor ts bag with

another checkboo k from the joint ac count in it. Po lice discovered more marijuana in a dr esser drawer. In the top righ t drawer of the dresser, police fo und appellant's wallet, which contained his driver's license, soci al security card, cred it cards and a health insurance card. McCarthy testified on behalf of the Comm onwealth. McCarthy stated the drugs found in appellant's bedroom were not his. In his testimony, McCarthy also indicated he ha d not seen appellant in the residence for fo ur days, though that was not uncommon since they had different sche dules. McCart hy recounted that he had never seen appellant us e or sell drugs and th at he was surprised that the police found narcotics in appellan t's room. McCarthy testified that at least twelve visitors ha d recently been to the

- 2 -residence and thre e or four differ ent people had spent the night in appellant's ro om. Further, in order to get to th e backyard, people were requ ired to pass through ap pellant's ro om 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

- 3 -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.

- 4 -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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