COURT OF APPEALS OF VIRGINIA 

Present: Judges Bray, Frank and Senior Judge Hodges 

Argued at Chesapeake, Virginia 

DEBBY JO WALLMAN 

 MEMORANDUM OPINION* BY 

v. Record No. 0169-99-1 JUDGE RICHARD S. BRAY 

 MAY 2, 2000 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH 

Johnny E. Morrison, Judge 

 Dianne G. Ringer, Senior Assistant Public 

Defender, for appellant. 

 Steven A. Witmer, Assistant Attorney General 

(Mark L. Earley, Attorney General; Donald E. 

Jeffrey, III, Assistant Attorney General, on 

brief), for appellee. 

 

* Pursuant to Code § 17.1-413, recodifying Code 

§ 17-116.010, this opinion is not designated for publication.

Debby Jo Wallman (defendant) was convicted in a bench trial 

for possession of heroin in violation of Code § 18.2-250. On 

appeal, she contends that 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. 

"On appeal, 'we review the evidence in the light most 

favorable to the Commonwealth, granting to it all reasonable 

inferences fairly deducible therefrom.'" Archer v. Commonwealth, 
26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997) (citation omitted). 

The credibility of the witnesses, the weight accorded testimony, 

and the inferences drawn from the 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 the 

trial court will not be disturbed unless plainly wrong or 

unsupported by evidence. See Code § 8.01-680. "However, a [trial 

court's] conclusion . . . based on evidence not in material 

conflict does not have the same binding weight on appeal." 

Durrette v. Durrette, 223 Va. 328, 332, 288 S.E.2d 432, 434 

(1982). 

I. 

The instant record disclosed that Portsmouth Police Officer 

A.M. Williams observed a "pickup truck" stop unlawfully "on the 

side of the road" and a passenger exit the vehicle. The driver, 

then alone, returned the truck to the roadway and "began taking 

off." Williams "caught up," "activated [his] emergency equipment" 

and effected a stop. Upon approaching the vehicle, Williams 

determined that defendant was the operator and requested her 

"license and registration." Unable to produce a license, 

defendant, appearing "very nervous," confessed that her privileges 

had been suspended. Williams then asked defendant "to step away 

from" the vehicle and placed her under arrest. 

After securing defendant in the police car, Williams returned 

to the truck and "observed a purple Crown Royal liquor bag [on] 

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the driver's floorboard," "in plain view," "easily seen," directly 

below "where your knees are . . . when you're driving." Opening 

the opaque bag, which was "pulled shut by [a] draw string," 

Williams discovered "numerous syringes, two metal spoons [with 

suspected heroin residue], and an empty deck of what [he] believed 

to be heroin." Subsequent laboratory analysis identified the 

residue as heroin and cocaine. Further investigation revealed 

that defendant's "live-in boyfriend" was the registered owner of 

the truck. 

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 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 

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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 operator of a vehicle owned by 

another, and no evidence established the duration of her 

possession or familiarity with the vehicle. The bag containing 

the drug paraphernalia and attendant residue, although in "plain 

view" on the floorboard, was opaque and closed, its contents 

hidden from casual observation. Apart from defendant's 

"nervous[ness]," a response consistent with anxiety attributable 

to her suspended license, the record reveals no furtive 

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movements, statements or other circumstances suggestive of an 

awareness that the bag contained contraband. Such evidence 

fails to establish that defendant had the requisite knowledge of 

the presence and character of the offending contents. 

Accordingly, we find the evidence insufficient and reverse 

the conviction. 

 Reversed and dismissed. 

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