COURT OF APPEALS OF VIRGINIA 

Present: Judges Baker, Benton and Bray 

Argued at Richmond, Virginia 

LANETTA TORIAN 

 MEMORANDUM OPINION* BY 

v. Record No. 1770-96-2 JUDGE JAMES W. BENTON, JR. 

 MAY 27, 1997 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF HALIFAX COUNTY 

Charles L. McCormick, III, Judge 

 Amy M. Curtis (Theodore N. I. Tondrowski; 

Bowen & Bowen, P.C., on brief), for 

appellant. 

 Robert H. Anderson, III, Assistant Attorney 

General (James S. Gilmore, III, Attorney 

General, on brief), for appellee. 

 Lanetta Torian was convicted of possession of cocaine with 

intent to distribute. She contends that the evidence was 

insufficient to support the conviction. We agree and reverse the 

conviction. 

 I. 

 The undisputed evidence proved that officers of the South 

Boston Police Department entered a residence at 1907 Spring 

Avenue with a warrant to search for narcotics. The property was 

leased to Jane Jeffreys, the mother of Michael and James 

Jeffreys. Michael Jeffreys, James Jeffreys, and eight other 

people were in the residence. 

 Lovelle Jenkins was in the northwest bedroom. The police 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
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found in that room a loaded Larson .380 caliber pistol under the 

bed mattress and a plastic bag containing eleven smaller bags of 

marijuana in the middle of the floor. The police saw men's 

clothing hanging in the closet and found six small bags of 

marijuana in a jacket hanging in the closet. In James Jeffreys' 

wallet, the police found a receipt for the gun. 

 In the southwest bedroom, the police found in the nightstand 

a document listing "people who owe Michael money." Under the 

mattress they found a digital scale with cocaine residue. Men's 

clothing was hanging in the closet. 

 James Jeffreys, Lawanda Chandler, and a small infant were 

sitting on the bed in the northeast bedroom. In that room, the 

police found lying on the floor an Advil bottle that contained 

rocks and crumbs of cocaine. In a nightstand about six feet from 

the bottle were several documents indicating that Torian's 

address was 1907 Spring Avenue. Women's clothing was found in 

this bedroom. 

 When the police arrived, Torian was in the residence but not 

in any of the bedrooms. About twenty minutes after the police 

entered the northeast bedroom and discovered the Advil bottle, 

Torian entered the room accompanied by a female officer. The 

police officer who was searching the room testified, "I think she 

got some clothes." 

 On this evidence, the trial judge found Torian guilty of 

possession of cocaine with intent to distribute. Torian was 
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sentenced to 5 years in the penitentiary, with all but 7 months 

suspended, and fined $500. 

 II. 

 "The burden was on the Commonwealth to prove beyond a 

reasonable doubt that [Torian] was aware of the presence and 

character of the [cocaine] and was intentionally and consciously 

in physical or constructive possession of it." Wright v. 

Commonwealth, 217 Va. 669, 670, 232 S.E.2d 733, 734 (1977). 

Because the conviction is based upon constructive possession, the 

evidence must prove "acts, statements, or conduct of the accused 

or other facts or circumstances which tend to show that the 

[accused] was aware of both the presence and character of the 

substance and that it was subject to [her] dominion and control." 

Powers v. Commonwealth, 227 Va. 474, 476, 316 S.E.2d 739, 740 

(1984). "Further, where, as here, 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) 

(citation omitted). 

 No evidence proved that Torian was aware of the presence of 

cocaine in the residence or that she exercised control over any 

drugs in the residence. See Drew v. Commonwealth, 230 Va. 471, 

338 S.E.2d 844 (1986). No evidence proved that she had been in 

the northwest or southwest bedrooms where police found cocaine 
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and men's clothing. 

 In the northeast bedroom where the police found the Advil 

bottle containing cocaine, the police found an adult female and 

James Jeffreys, whose mother was the lessee. The Advil bottle 

was found on the floor in their presence. The evidence does not 

exclude the hypothesis that one of them discarded the Advil 

bottle onto the floor as the police entered the residence. 

 At most, the evidence creates a suspicion that Torian was 

aware of the presence of the cocaine. "Suspicion, however, no 

matter how strong, is insufficient to sustain a criminal 

conviction." Stover v. Commonwealth, 222 Va. 618, 624, 283 

S.E.2d 194, 197 (1981). Accordingly, we reverse the judgment and 

dismiss the indictment. 

 Reversed and dismissed.