COURT OF APPEALS OF VIRGINIA Present: Judg es Bray, Frank and Clements Argued at Ches apeake, Virginia

NOEL JONES MEMORANDUM OPINION * BY v. Record No. 1991-00-1 JUDGE RICHAR D 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. Frankl in, Assistan t Attorney General (Rando lph A. Beales , Attorney General, on brief), for appellee.

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. Noel Jones (defenda nt) was convic ted in a bench trial for possession of coca ine, a violation of Code § 18.2-250. On appeal, he contends the evid ence was insufficie nt to support the conviction. We agree and reverse the trial court. The parties ar e fully conversa nt with the re cord, and this memorandum opinion re cites only those fa cts necess ary to a disposition of the appeal. In reviewing the su fficiency of the evid ence, we examine the record in "the light most favorable to the Commonwealth , granting to it all reason able inferences fairly deducible th erefrom." Martin v. Commonwealth , 4 Va. App. 438, 443, 358 S.E.2d 415, 418(1987). The credibil ity of witnesses, th e weight accorded testimony, and the infe rences to be drawn fr om proven facts are matters to be de termined by the fact finder. See Long v. Commonwealth , 8 Va. App. 194, 199, 379 S.E.2d 47 3, 476 (1989). The judgment of a trial court will be disturbed on appeal only if plainly wrong or unsuppor ted by the evidence. See Code § 8.01-680. I. The facts are su bstantially unco ntroverted. At approximately 4:00 a.m. on December 4, 1999, Ches apeake Police Officer B.W. Shearin observ ed an automobile turn unlawfully "through a red light." Shearin activa ted his "emergen cy equipment" and stopped the vehicle. Th e driver and sole passenger, seat ed beside him, identified themselves to Shearin as Omar Wi lson and defendant, respectively. Further investig ation at the scene disc losed that Wilson was "wanted for malici ous wounding." However, before Shearin could effect an arrest , Wilson "began to driv e off," with Shearin in pursuit. During the ensuing "h igh-speed ch ase," "through stop signs and everythi ng," Shearin obse rved "a baggy [s ic]," followed immediately by "a firearm," "come out of the passen ger's side of the vehicle." Although the "area was lit," Shearin di d not notice Wilson "make any motion s or gestures . . . toward anything but driving the vehicl e," "couldn't se e hand movements from either party," "just sa w the items come out." Defendant, however, - 2 -testified he had "seen [Wilson] flinging some thing out th e window" after defendant ha d "rolled the wi ndow down a li ttle bit" at Wilson's request. Shearin, with the as sistance of ot her police officers, soon stopped the vehicl e, and defendant "fled on foot . . . into the woods," only to be apprehended within "a minu te or so, two minutes." With both Wilson and defendant in cu stody, Shearin returned to "the area where the firs t object was th rown out the window" and recove red "a baggy [sic] of po wdered substance," later identified as 13 .3 grams of cocaine, an d a "Virginia Power bill with the name Omar Wilson, right in the same vi cinity, right beside the . . . coca ine." A search of defendant by Shearin revealed "nothing," but Wilson possessed $1,850 in cash. A search of the car disclose d additional cocain e "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. Co mmonwealth , 230 Va. 471, 47 3, 338 S.E.2d 84 4, 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."

- 3 -defendant may sh are [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, 74 1, 173 S.E.2d 799, 806 (1970). "A lthough mere proximit y to the drugs is insufficient to establish poss ession, and oc cupancy of [a] vehicle does not give rise to a presumption of poss ession . . . both are factors which may be considered in determining whet her 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 circumstan tial evidence, 'all necessary circumstances prov ed must be consiste nt 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. Co mmonwealth , 217 Va. 360, 366, 228 S.E.2d 563, 567 (1 976)). "The Co mmonwealth need only exclude reason able hypotheses of innocence that flow from the evidence, not th ose that spring from the imaginat ion of the defendant." Hamilton v. Commonwealth , 16 Va. App. 751, 755, 433 S.E.2d 27, 29 (1993). "Whether a hypothes is 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, 49 7 S.E.2d 150, 155 (199 8) (citatio n omitted). Here, defendant was the passenge r in the vehicl e operated by another, Wilson, when Wilson fled from police immediately following a lawful stop. During the chase, drugs, a weapon, and a - 4 -"bill" personal to Wilson were discarde d from the passenger window, althou gh no attendant "h and movements from either party" were observed by Offi cer Shearin. Once the car wa s again stopped by police, defe ndant fled but was imme diately apprehended and returned to the scene. No drug s, related paraph ernalia or other contraband were found on defendant's pers on, but Wilson possessed considerable cash, and additional cocaine was secreted outside the passenger comp artment of the vehicle. Thus, in support of the instant convic tion, the evidence proved little more th an defendant wa s present in an automobile controlled by Wi lson and fled from poli ce following the second stop. While defendant admittedly lowered the window at Wilson's direction, the evidence does no t establish he wa s aware Wilson intended to toss cocain e and a firearm from the speeding vehicle. No drugs were found on defendant's pers on, but ad ditional contraband was hidden "under the hood" of th e car, in Wilson's control. Such evidence clearly suppor ts the reasonable hypothesis that the offending coca ine belonged exclusivel y to Wilson and was present in the automobi le without defe ndant's knowle dge and free of his dominion and control. Accordingly, the evid ence was insufficient to prove defendant guilty of the su bject offense beyo nd a reasonable doubt, and we reverse the conviction. Reversed and dismissed

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