COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Elder and Annunziata 

Argued at Salem, Virginia 

JAMES JUNIOUS CHANDLER, S/K/A 

 JAMES JULIUS CHANDLER 

 MEMORANDUM OPINION* BY 

v. Record No. 0230-94-3 JUDGE ROSEMARIE ANNUNZIATA 

 MAY 21, 1996 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE 

James F. Ingram, Judge 

 Mark T. Williams (Williams, Stilwell, 

Morrison, Williams and Light, on brief), for 

appellant. 

 Leah A. Darron, Assistant Attorney General 

(James S. Gilmore, III, Attorney General, on 

brief), for appellee. 

 Appellant, James Junious Chandler, appeals his conviction 

for possession of cocaine in violation of Code § 18.2-250(a). 

Appellant contends the evidence was insufficient to support a 

conviction based on constructive possession. We disagree and 

affirm. 

 "To support a conviction based upon 

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.'" 

McGee v. Commonwealth, 4 Va. App. 317, 322, 357 S.E.2d 738, 740 

(1987) (quoting Drew v. Commonwealth, 230 Va. 471, 473, 338 

 

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

designated for publication. 
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S.E.2d 844, 845 (1986)). Neither proximity to contraband nor 

presence on the premises where it is found are alone sufficient 

to establish constructive possession. E.g., Brown v. 

Commonwealth, 15 Va. App. 1, 9, 421 S.E.2d 877, 882-83 (1992). 

Moreover, proximity and presence, together, are insufficient 

where the evidence does not show that the defendant's possession 

was knowing. See Scruggs v. Commonwealth, 19 Va. App. 58, 61-63, 

448 S.E.2d 663, 665-66 (1994) (defendant, owner and driver of car 

in which drugs found within passenger seat, did not 

constructively possess drugs because evidence failed to show 

defendant knew drugs were there); Jones v. Commonwealth, 17 Va. 

App. 572, 574, 439 S.E.2d 863, 864 (1994) (defendant, passenger 

in car where drugs found both between passenger and driver seats 

and under passenger seat, did not constructively possess drugs 

because evidence failed to show how long defendant had been in 

car, whether defendant saw drugs between seats, or whether 

defendant knew of drugs under seat); Nelson v. Commonwealth, 17 

Va. App. 708, 711, 440 S.E.2d 627, 628-29 (1994) (defendant, 

present in hotel room where drugs found, did not constructively 

possess drugs because drugs not in plain view, no drugs found on 

defendant, and evidence failed to show how long defendant had 

been in room). 

 However, both proximity and presence are factors the trial 

court may consider in evaluating the totality of circumstances. 

Lane v. Commonwealth, 223 Va. 713, 716, 292 S.E.2d 358, 360 
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(1982); Brown, 15 Va. App. at 10, 421 S.E.2d at 883; Castaneda v. 

Commonwealth, 7 Va. App. 574, 584, 376 S.E.2d 82, 87 (1989). 

And, "`[k]nowledge . . . may be proved by evidence of acts, 

declarations or conduct of the accused from which the inference 

may be fairly drawn that [the accused] knew of the existence of 

narcotics at the place where they were found.'" Hairston v. 

Commonwealth, 5 Va. App. 183, 186, 360 S.E.2d 893, 895 (1987) 

(quoting People v. Pigrenet, 26 Ill. 2d 224, 227, 186 N.E.2d 306, 

308 (1962)). 

 In a case of constructive possession, where the Commonwealth 

relies wholly on circumstantial evidence to prove a necessary 

element of the offense, all the necessary circumstances proved 

must be consistent with guilt and inconsistent with innocence to 

establish guilt beyond a reasonable doubt. Harrell v. 

Commonwealth, 11 Va. App. 1, 9, 396 S.E.2d 680, 684 (1990). 

However, this rule does not require the Commonwealth to disprove 

every remote possibility of innocence. Cantrell v. Commonwealth, 

7 Va. App. 269, 289, 373 S.E.2d 328, 338 (1988), cert. denied, 

496 U.S. 911 (1990). The Commonwealth must reasonably exclude 

only those hypotheses "which flow from the evidence itself, and 

not from the imagination of defendant's counsel." Id. at 289-90, 

373 S.E.2d at 338-39 (quoting Black v. Commonwealth, 222 Va. 838, 

841, 284 S.E.2d 608, 609 (1981)). Thus, as appellant concedes, 

"[t]he Commonwealth is not required to prove that there is no 

possibility that someone else may have planted, discarded, 
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abandoned or placed the drugs [where they are found near an 

accused]." See, e.g., Brown, 15 Va. App. at 10, 421 S.E.2d at 

863. 

 Whether an alternative hypothesis is a "reasonable 

hypothesis of innocence" is a question of fact. Cantrell, 7 Va. 

App. at 290, 373 S.E.2d at 339. Unless plainly wrong, a trial 

court's factual finding is binding on appeal. E.g., Naulty v. 

Commonwealth, 2 Va. App. 523, 527, 346 S.E.2d 540, 542 (1986). 

When considering the sufficiency of the evidence on appeal in a 

criminal case, this Court views the evidence in a light most 

favorable to the Commonwealth. Higginbotham v. Commonwealth, 216 

Va. 349, 352, 218 S.E.2d 534, 537 (1975). On review, this Court 

may not substitute its own judgment for that of the trier of 

fact. Cable v. Commonwealth, 243 Va. 236, 239, 415 S.E.2d 218, 

220 (1992). Instead, the trial court's judgment will not be set 

aside unless it appears that the judgment is plainly wrong or 

without supporting evidence. Code § 8.01-680; Josephs v. 

Commonwealth, 10 Va. App. 87, 99, 390 S.E.2d 491, 497 (1990) (en 

banc) (quoting Martin v. Commonwealth, 4 Va. App. 438, 443, 358 

S.E.2d 415, 418 (1987)). 

 Here, the evidence shows that Danville Police Officers 

Michael Wallace and D. C. Creed responded to a reported dispute 

involving a firearm at the home of a Mrs. Hicks. When Wallace 

arrived, appellant and Hicks were outside. Wallace checked both 

for weapons but found none. He asked appellant to empty his 
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pockets, but appellant refused to comply. Wallace conducted a 

pat down search of appellant but felt no weapon. Wallace then 

looked inside a parked vehicle which belonged to neither 

appellant nor Hicks and discovered a gun. By that time, Creed 

had arrived. Wallace exclaimed, "I found a gun," whereupon 

appellant ran into Hicks' residence. Creed pursued appellant, 

ordering him to stop four times. Appellant did not comply. 

Instead, appellant ran into a bathroom and closed the door. 

Within five to ten seconds, Creed reached the bathroom and opened 

the door. As the door opened, the toilet flushed. Creed saw 

appellant standing next to the toilet with his left pants pocket 

pulled inside out and his pants zipped and buttoned. Creed asked 

appellant to step back and to display his hands. Appellant 

complied, and Creed saw appellant neither hold nor drop anything. 

 Upon bending down to look behind the toilet for a weapon, Creed 

noticed what would prove to be a piece of crack cocaine 

approximately one-eighth of an inch in diameter. Creed testified 

that the cocaine rested approximately six inches from appellant's 

foot on the same side of the floor as the side of appellant's 

pants which had the pocket pulled inside out. 

 The evidence is sufficient to support a finding, beyond a 

reasonable doubt and to the exclusion of a reasonable hypothesis 

to the contrary, that appellant was aware of both the presence 

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

dominion and control. Appellant fled from Officer Creed, 
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refusing to stop until he reached the bathroom. Within seconds, 

Creed found appellant standing next to a flushing commode with 

his pants zipped and buttoned. One of appellant's pockets was 

turned inside out, and Creed found cocaine on the floor directly 

below that pocket, only six inches from appellant's foot. 

 Contrary to appellant's assertion, this case is readily 

distinguished from Hairston and Wright v. Commonwealth, 217 Va. 

669, 232 S.E.2d 733 (1977). In Hairston, the evidence showed 

only that the accused held a child whose clothing contained a 

package of drugs and who had been in the care of three other 

people for the preceding two and one-half hours. 5 Va. App. at 

186, 360 S.E.2d at 895. In Wright, the evidence showed only that 

the accused sat with another man in a room where the police found 

drugs. 217 Va. at 670, 232 S.E.2d at 734. 

 Accordingly, appellant's conviction is affirmed. 

Affirmed.
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BENTON, J., dissenting. 

 The Commonwealth had the burden to prove beyond a reasonable 

doubt that James Chandler possessed the cocaine found by Officer 

Creed. Because the evidence in this case did not prove that 

Chandler "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), I would reverse the conviction. 

 Viewed in the light most favorable to the Commonwealth, 

Commonwealth v. Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d 47, 

48 (1991), the evidence proved that when Officer Wallace detained 

Chandler in response to a report that "a female had a gun," 

Chandler refused Wallace's request to empty his pockets. After 

the officer frisked him for weapons and walked away, Chandler ran 

inside a residence. Another officer, Creed, chased Chandler into 

the bathroom. Officer Creed estimated that he opened the 

bathroom door five to ten seconds after Chandler entered the 

bathroom. When Officer Creed entered the bathroom, he heard the 

toilet flushing and saw that the "water had already [gone] down 

[and] the bowl was starting to fill back up." Chandler was 

standing in front of the toilet with his pants zippered and 

buttoned. One of his pockets was "pulled inside out." Creed 

asked him to move from the room, searched behind the toilet, and 

found a small piece of cocaine on the floor. 

 Possession of cocaine may be actual or constructive. Drew, 
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230 Va. at 473, 338 S.E.2d at 845. "To support a conviction 

based upon 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 

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

substance and that it was subject to his dominion and control.'" 

McGee v. Commonwealth, 4 Va. App. 317, 322, 357 S.E.2d 738, 740 

(1987)(quoting Powers v. Commonwealth, 227 Va. 474, 476, 316 

S.E.2d 739, 740 (1984)). The evidence proved that Officer Creed 

did not observe Chandler possess cocaine or do any act to suggest 

that he knew the cocaine was on the floor. Only after "ben[ding] 

down to look behind the toilet to see if [Chandler] might have 

thrown a weapon behind the toilet," did Officer Creed find the 

piece of cocaine. 

 Based on the circumstantial evidence, the trial judge could 

have inferred that Chandler flushed something down the toilet. 

However, only by speculation, surmise or conjecture could he have 

concluded that Chandler dropped the cocaine that Officer Creed 

found on the floor. "It is, of course, a truism of the criminal 

law that evidence is not sufficient to support a conviction if it 

engenders only a suspicion or even a probability of guilt." 

Smith v. Commonwealth, 192 Va. 453, 461, 65 S.E.2d 528, 533 

(1951). 

 In Virginia it is well established that "[e]vidence merely 

that the accused was in the proximity of controlled substances is 
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insufficient" to prove possession. Jones v. Commonwealth, 17 Va. 

App. 572, 574, 439 S.E.2d 863, 864 (1994). Just because Chandler 

was near the cocaine does not prove beyond a reasonable doubt 

that he was aware of its presence. Id. The evidence also failed 

to prove that Chandler exercised exclusive dominion or control. 

The Commonwealth did not present any evidence that the bathroom 

was free of drugs prior to Chandler's entrance or that Chandler 

dropped the cocaine. See Burchette v. Commonwealth, 15 Va. App. 

432, 438, 425 S.E.2d 81, 85 (1992). 

 To sustain a conviction based upon circumstantial evidence, 

"the evidence must be wholly consistent with guilt and wholly 

inconsistent with innocence." Scruggs v. Commonwealth, 19 Va. 

App. 58, 61, 448 S.E.2d 663, 664 (1994). Evidence is not wholly 

inconsistent with innocence where the proof establishes only that 

the police find a small piece of cocaine on the floor in the same 

room as the accused. Such evidence leads only to surmise and 

conjecture as to who left the cocaine. "Conviction cannot rest 

upon [surmise and] conjecture." Smith, 192 Va. at 461, 65 S.E.2d 

at 533. See also Hyde v. Commonwealth, 217 Va. 950, 955, 234 

S.E.2d 74, 78 (1977). 

 Where, as in this case, the evidence amounts to a "mere 

suspicion," the evidence is insufficient to convict the accused. 

Garner v. Commonwealth, 186 Va. 600, 613, 43 S.E.2d 911, 917 

(1947)(citation omitted). Therefore, I would reverse the 

conviction.