COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Elder and Annunziata 

Argued at Richmond, Virginia 

GAYLE FRANKLIN COMBS 

v. Record No. 1499-94-2 MEMORANDUM OPINION* BY 

 JUDGE ROSEMARIE ANNUNZIATA 

COMMONWEALTH OF VIRGINIA OCTOBER 24, 1995 

FROM THE CIRCUIT COURT OF GOOCHLAND COUNTY 

F. Ward Harkrader, Jr., Judge 

 John W. Luxton (Morchower, Luxton & Whaley, 

on brief), for appellant. 

 Robert B. Beasley, Jr., Assistant Attorney 

General (James S. Gilmore, III, Attorney 

General, on brief), for appellee. 

 Appellant, Gayle Franklin Combs, appeals his conviction for 

possession of marijuana in violation of Code § 18.2-250.1 on the 

ground that the evidence is insufficient to sustain the 

conviction. For the reasons stated below, we reverse. 

 On February 20, 1994, Deputy T.P. Collins of Goochland 

County observed an automobile traveling on Route 6 and followed 

it for several miles. As Collins followed, he noticed that the 

vehicle weaved several times and exceeded the speed limit. Prior 

to activating his emergency equipment, Collins noticed a burning 

"cigarette type object" thrown from the vehicle's passenger 

window. Collins stopped the vehicle, which was owned and driven 

by Mr. Stafford. When Stafford lowered the driver's side window, 

Collins could smell the strong odor of marijuana and alcohol. As 

 

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

designated for publication. 
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Stafford performed sobriety tests, per Collins' instructions, 

Combs sat in the front passenger seat. Later, Combs was directed 

to exit the vehicle, and Stafford consented to the vehicle's 

search. Approximately 3.7 grams of marijuana were found hidden 

between the passenger door and passenger seat, where Combs had 

been seated. Combs had no marijuana or contraband on his person, 

and Collins could not recall if he found any cigarettes on Combs. 

 In a de novo appeal from the general district court, Combs was 

tried without a jury and convicted of possession of marijuana. 

 To support a conviction based on constructive possession, 

"the Commonwealth must point to evidence of acts, statements, or 

conduct of the accused or other facts and circumstances which 

tend to show that the defendant was aware of both the presence 

and character of the substance and that it was subject to his 

dominion and control." Powers v. Commonwealth, 227 Va. 474, 476, 

316 S.E.2d 739, 740 (1984). "A conviction based on 

circumstantial evidence may be sustained only if the evidence, 

when taken as a whole, excludes every reasonable hypothesis of 

innocence." Scruggs v. Commonwealth, 19 Va. App. 58, 61, 448 

S.E.2d 663, 664 (1994) (citation omitted). 

 Where the sufficiency of the evidence is challenged on 

appeal, the Court must consider the evidence in the light most 

favorable to the Commonwealth, granting to it all reasonable 

inferences fairly deducible therefrom. Higginbotham v. 

Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975). The 
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"judgment of a trial court sitting without a jury is entitled to 

the same weight as a jury verdict and will not be disturbed on 

appeal unless plainly wrong or without evidence to support it." 

Hambury v. Commonwealth, 3 Va. App. 435, 437, 350 S.E.2d 524, 524 

(1986). 

 In this case, the evidence was insufficient to prove beyond 

a reasonable doubt that Combs was aware of the presence and 

character of the marijuana in Stafford's vehicle. As the Court 

has stated, "[s]uspicious circumstances, including proximity to a 

controlled drug, are insufficient to support a conviction." 

Behrens v. Commonwealth, 3 Va. App. 131, 135, 348 S.E.2d 430, 432 

(1986). The marijuana was concealed between the passenger door 

and passenger seat, and the facts indicate that it was "hidden" 

from view. While Combs' proximity to the marijuana and his 

occupancy of the vehicle are factors to be considered, Josephs v. 

Commonwealth, 10 Va. App. 87, 100, 390 S.E.2d 491, 498 (1990), 

"no evidence or rule of law compels a finding that a person who 

shares an automobile with another necessarily knows that the 

other person has contraband or also shares possession of 

contraband that the other person has in the automobile." Scruggs 

v. Commonwealth, 19 Va. App. 58, 62, 448 S.E.2d 663, 665 (1994); 

see Jones v. Commonwealth, 17 Va. App. 572, 574, 439 S.E.2d 863, 

864 (1994) (occupant of automobile not presumed to be aware of 

presence and character of small pieces of cocaine on tray between 

occupant and driver). 
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 The evidence in the record proves Combs' proximity to the 

marijuana, but nothing more. There were no acts, statements, or 

other conduct establishing that he was aware of the presence of 

the marijuana. Officer Collins could not state with any 

certainty that a marijuana "joint," as opposed to a cigarette, 

was thrown from the passenger window. It is not unreasonable to 

hypothesize that Combs had thrown a cigarette from the window, or 

that marijuana had been smoked in the vehicle before he became a 

passenger. In short, the Commonwealth could not exclude every 

reasonable hypothesis of innocence flowing from the evidence. 

See Hamilton v. Commonwealth, 16 Va. App. 751, 433 S.E.2d 27 

(1993). "A conviction resting on circumstances which cast 'a 

suspicion of guilt, however strong, or even a probability of 

guilt is insufficient to support a criminal conviction.'" 

Sutphin v. Commonwealth, 1 Va. App. 241, 244, 337 S.E.2d 897, 898 

(1985) (quotation omitted). 

 The appellant's conviction is reversed. 

Reversed.