COURT OF APPEALS OF VIRGINIA

Present: Judges Bray, Fr ank and Senior Judge Hodges Argued at Ches apeake, Virginia

DEBBY JO WALLMAN MEMORANDUM OPINION * BY v. Record No. 0169-99-1 JUDGE RICHAR D S. BRAY MAY 2, 2000 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH Johnny E. Mo rrison, Judge Dianne G. Ringer, Se nior Assistant Public Defender, for appellant. Steven A. Witmer, As sistant Attorn ey General (Mark L. Earley, Attorney General; Donald E. Jeffrey, III, As sistant 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 (def endant) was co nvicted in a bench trial for possession of heroin in viol ation of Code § 18.2-250. On appeal, she conten ds that the evid ence was insuffic ient to support the conviction . We agree and reve rse the tr ial court. The parties are fully conversant with the reco rd, and this memorandum opinion re cites only those fa cts necess ary to a disposition of the appeal. "On appeal, 'we review the evidence in the light most favorable to the Comm onwealth, granti ng to it al l reasonable inferences fairly dedu cible theref rom.'" Archer v. Commonwealth ,26 Va. App. 1, 11, 492 S.E.2d 826, 83 1 (1997) (citat ion omitted). The credibility of the witnesses, the weig ht accorded testimony, and the inferences drawn from the proven facts are matt ers to be determined by th e fact finder. See Long v. Co mmonwealth , 8 Va. App. 194, 199, 379 S. E.2d 473, 476 (1989). The ju dgment of the trial court will not be disturbed unle ss plainly wrong or unsupported by evidence. See Code § 8.01-680. "However, a [trial court's] conclusion . . . based on eviden ce not in material conflict does no t have the same binding weight on appeal."

Durrette v. Durrette , 223 Va. 328, 332, 288 S.E.2d 432, 434 (1982).

I. The instant reco rd disclosed that Port smouth Police Officer A.M. Williams observed a "pickup truc k" stop unlawfully "on the side of the road " and a passenger exit the vehicle. The driver, then alone, returned the truck to the roadwa y and "began taking off." Williams "caught up," "activated [his ] emergency equipment" and effected a stop. Upon approaching th e vehicle, Williams determined that defe ndant was the operator and requested her "license and registra tion." Unable to produce a license, defendant, appearing "v ery nervous," co nfessed that her privileges had been suspended. Williams then asked defendant "to step away from" the vehicle and placed her un der arrest. After securing defendan t in the police car, Williams returned to the truck and "obser ved a purple Crown Ro yal liquor bag [on]

- 2 -the driver's floorboard ," "in plain view," "e asily seen," directly below "where your knees are . . . when you're driv ing." Opening the opaque bag, whic h was "pulled sh ut by [a] draw string," Williams discovered "numerous syring es, 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. Furt her investigat ion 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

- 3 -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

- 4 -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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