COURT OF APPEALS OF VIRGINIA 

Present: Judges Bray, Frank and Clements 

Argued at Chesapeake, Virginia 

NOEL JONES 

 MEMORANDUM OPINION* BY 

v. Record No. 1991-00-1 JUDGE RICHARD S. BRAY 

 NOVEMBER 6, 2001 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE 

Bruce H. Kushner, Judge 

 Monte E. Kuligowski for appellant. 

 Jennifer R. Franklin, Assistant Attorney 

General (Randolph A. Beales, Attorney 

General, on brief), for appellee. 

 

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

designated for publication.

 Noel Jones (defendant) was convicted in a bench trial for 

possession of cocaine, a violation of Code § 18.2-250. On appeal, 

he contends the evidence was insufficient to support the 

conviction. We agree and reverse the trial court. 

 The parties are fully conversant with the record, and this 

memorandum opinion recites only those facts necessary to a 

disposition of the appeal. 

 In reviewing the sufficiency of the evidence, we examine the 

record in "the light most favorable to the Commonwealth, granting 

to it all reasonable inferences fairly deducible therefrom." 

Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 
(1987). The credibility of witnesses, the weight accorded 

testimony, and the inferences to be drawn from proven facts are 

matters to be determined by the fact finder. See Long v. 

Commonwealth, 8 Va. App. 194, 199, 379 S.E.2d 473, 476 (1989). 

The judgment of a trial court will be disturbed on appeal only if 

plainly wrong or unsupported by the evidence. See Code 

§ 8.01-680. 

I. 

 The facts are substantially uncontroverted. At approximately 

4:00 a.m. on December 4, 1999, Chesapeake Police Officer B.W. 

Shearin observed an automobile turn unlawfully "through a red 

light." Shearin activated his "emergency equipment" and stopped 

the vehicle. The driver and sole passenger, seated beside him, 

identified themselves to Shearin as Omar Wilson and defendant, 

respectively. 

 Further investigation at the scene disclosed that Wilson was 

"wanted for malicious wounding." However, before Shearin could 

effect an arrest, Wilson "began to drive off," with Shearin in 

pursuit. During the ensuing "high-speed chase," "through stop 

signs and everything," Shearin observed "a baggy [sic]," followed 

immediately by "a firearm," "come out of the passenger's side of 

the vehicle." Although the "area was lit," Shearin did not notice 

Wilson "make any motions or gestures . . . toward anything but 

driving the vehicle," "couldn't see hand movements from either 

party," "just saw the items come out." Defendant, however, 

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testified he had "seen [Wilson] flinging something out the window" 

after defendant had "rolled the window down a little bit" at 

Wilson's request. 

 Shearin, with the assistance of other police officers, soon 

stopped the vehicle, and defendant "fled on foot . . . into the 

woods," only to be apprehended within "a minute or so, two 

minutes." With both Wilson and defendant in custody, Shearin 

returned to "the area where the first object was thrown out the 

window" and recovered "a baggy [sic] of powdered substance," later 

identified as 13.3 grams of cocaine, and a "Virginia Power bill 

with the name Omar Wilson, right in the same vicinity, right 

beside the . . . cocaine." A search of defendant by Shearin 

revealed "nothing," but Wilson possessed $1,850 in cash. A search 

of the car disclosed additional cocaine "under the hood."1

II. 

 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 or 

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." 

Drew v. Commonwealth, 230 Va. 471, 473, 338 S.E.2d 844, 845 (1986) 

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

740 (1984)). "[T]he possession need not always be exclusive. The 

 1

 The instant record further discloses that Wilson 

previously "pled guilty" to "these charges." 

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defendant may share [the drugs] with one or more. The duration of 

the possession is immaterial and need not always be actual 

possession." Ritter v. Commonwealth, 210 Va. 732, 741, 173 S.E.2d 

799, 806 (1970). "Although mere proximity to the drugs is 

insufficient to establish possession, and occupancy of [a] vehicle 

does not give rise to a presumption of possession . . . both are 

factors which may be considered in determining whether a defendant 

possessed drugs." Josephs v. Commonwealth, 10 Va. App. 87, 100, 

390 S.E.2d 491, 498 (1990) (en banc). 

 Where "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) (quoting Inge v. Commonwealth, 217 

Va. 360, 366, 228 S.E.2d 563, 567 (1976)). "The Commonwealth need 

only exclude reasonable hypotheses of innocence that flow from the 

evidence, not those that spring from the imagination of the 

defendant." Hamilton v. Commonwealth, 16 Va. App. 751, 755, 433 

S.E.2d 27, 29 (1993). "Whether a hypothesis of innocence is 

reasonable is a question of fact, and a finding by the trial court 

is binding unless plainly wrong." Glasco v. Commonwealth, 26 

Va. App. 763, 774, 497 S.E.2d 150, 155 (1998) (citation omitted). 

 Here, defendant was the passenger in the vehicle operated by 

another, Wilson, when Wilson fled from police immediately 

following a lawful stop. During the chase, drugs, a weapon, and a 

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"bill" personal to Wilson were discarded from the passenger 

window, although no attendant "hand movements from either party" 

were observed by Officer Shearin. Once the car was again stopped 

by police, defendant fled but was immediately apprehended and 

returned to the scene. No drugs, related paraphernalia or other 

contraband were found on defendant's person, but Wilson possessed 

considerable cash, and additional cocaine was secreted outside the 

passenger compartment of the vehicle. 

 Thus, in support of the instant conviction, the evidence 

proved little more than defendant was present in an automobile 

controlled by Wilson and fled from police following the second 

stop. While defendant admittedly lowered the window at Wilson's 

direction, the evidence does not establish he was aware Wilson 

intended to toss cocaine and a firearm from the speeding vehicle. 

No drugs were found on defendant's person, but additional 

contraband was hidden "under the hood" of the car, in Wilson's 

control. Such evidence clearly supports the reasonable hypothesis 

that the offending cocaine belonged exclusively to Wilson and was 

present in the automobile without defendant's knowledge and free 

of his dominion and control. 

 Accordingly, the evidence was insufficient to prove defendant 

guilty of the subject offense beyond a reasonable doubt, and we 

reverse the conviction. 

 Reversed and dismissed.

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