COURT OF APPEALS OF VIRGINIA 

Present: Judges Elder, Frank and Humphreys 

Argued at Salem, Virginia 

ANTHOINE PLUNKETT, S/K/A 

 ANTOINE PLUNKETT 

v. Record No. 3002-99-3 

 

COMMONWEALTH OF VIRGINIA MEMORANDUM OPINION* BY 

 JUDGE ROBERT J. HUMPHREYS 

ANTHOINE PLUNKETT DECEMBER 19, 2000 

v. Record No. 0257-00-3 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE 

James F. Ingram, Judge 

 Brian H. Turpin (Law Offices of Brian H. 

Turpin, on brief), for appellant. 

 Amy L. Marshall, Assistant Attorney General 

(Mark L. Earley, Attorney General, on brief), 

for appellee. 

 Anthoine Plunkett appeals his conviction, after a bench 

trial, of one count of possession of a controlled substance with 

intent to distribute. Plunkett contends that the trial court 

erred in finding the evidence sufficient to establish that he had 

the requisite knowledge of the nature, character and location of 

the drugs and that he had actual or constructive possession of the 

drugs. In a separate appeal to this Court, Plunkett contends that 

 

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

designated for publication.
the trial court erred in subsequently revoking his suspended 

sentence for a prior drug-related offense.1 We dispose of both 

appeals in this memorandum opinion. 

"Where the sufficiency of the evidence is challenged after 

conviction, it is our duty to consider it in the light most 

favorable to the Commonwealth and give it all reasonable 

inferences fairly deducible therefrom. We should affirm the 

judgment unless it appears from the evidence that the judgment is 

plainly wrong or without evidence to support it." Higginbotham v. 

Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975) 

(citation omitted). 

 "In order to convict a defendant of 'possession' of a 

narcotic drug . . . it generally is necessary to show that 

defendant was aware of the presence and character of the 

particular substance and was intentionally and consciously in 

possession of it." Ritter v. Commonwealth, 210 Va. 732, 741, 

173 S.E.2d 799, 805 (1970). However, "[p]ossession [of drugs] 

may be actual or constructive. Constructive possession may be 

established by '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 the character 

of the substance and that it was subject to his dominion and 

 1

 Although Plunkett's appeals have not been formally 

consolidated, due to their interrelated nature, we dispose of 

both matters in this decision. 

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control.'" Powers v. Commonwealth, 227 Va. 474, 476, 316 S.E.2d 

739, 740 (1984). 

The applicable law is summarized in Womack 

v. Commonwealth, 220 Va. 5, 255 S.E.2d 351 

(1979). Constructive possession may be 

shown by establishing that the [contraband] 

was known to and subject to the dominion and 

control of the accused. Knowledge of the 

presence and character of the controlled 

substance may be shown by evidence of the 

acts, statements or conduct of the accused. 

Mere proximity to the controlled substance, 

however, is insufficient to establish 

possession. Nevertheless, the possession 

need not be exclusive. 

Eckhart v. Commonwealth, 222 Va. 447, 450, 281 S.E.2d 853, 855 

(1981). "Proof of constructive possession necessarily rests on 

circumstantial evidence; thus, all necessary circumstances 

proved must be consistent with guilt and inconsistent with 

innocence and exclude every reasonable hypothesis of innocence." 

Burchette v. Commonwealth, 15 Va. App. 432, 434, 425 S.E.2d 81, 

83 (1992) (citations omitted). 

 Here, the evidence established that Plunkett was found on 

the premises of the residence belonging to Angela Wilson, 

although outside the house, when the police arrived to execute 

the warrant. In addition, Plunkett's daughter was inside the 

house when the police arrived. However, the police also found 

three other men inside the house. One was found in the front 

room, sitting on the couch. Another was found sitting at a 

table which was located "just outside the bathroom." The third 

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male was found in the bathroom, with the toilet refilling as if 

it had just been flushed. 

 The police found a gym bag on the floor in the front room. 

It was "cinched" shut when the police initially found it. 

Inside the bag's main compartment were the following items: 1) 

a letter addressed to Plunkett from an attorney; 2) sales 

receipt information in Plunkett's name; 3) a First State Bank 

bag; 4) some checkbooks and banking information in Plunkett's 

name; 5) a deposit ticket in the name of Angela Wilson; 6) a 

deposit ticket in the name of David Hamlett; 7) a watch; 8) 

latex gloves; 9) a digital scale; and 10) a Crown Royal bag 

containing 33.48 grams of cocaine. In the side compartments of 

the bag, officers found Plunkett's wallet, containing his 

driver's license, social security card and other identifying 

information. They also found two cameras. 

 Plunkett ran from the scene once the officers tried to 

detain him. When asked for identification, Plunkett waved 

toward the gym bag, indicating that he knew his wallet and/or 

identification were in the bag. 

 The Commonwealth argues that these circumstances prove 

Plunkett had knowledge of the drugs in the bag and that they 

were subject to his dominion and control. We disagree. 

 We have previously held that the fact that a suspect's 

personal items are found in close proximity to contraband does 

not, in and of itself, establish ownership, knowledge or 

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possession. See Burchette, 15 Va. App. at 437-38, 425 S.E.2d at 

85 (the fact that some of defendant's personal possessions were 

found in the vehicle during the search establishes, at most, 

that he had, at some point in time, been in the vehicle; that 

evidence does not establish that he had been in the vehicle when 

the contraband was present); See Drew v. Commonwealth, 230 Va. 

471, 472-74, 338 S.E.2d 844, 845-46 (1986) (evidence that 

defendant's checkbook, bank statement, telephone bill, driver's 

license, vehicle registration, and credit union voucher were 

found in house in which large amounts of cocaine were discovered 

was held insufficient to support conviction for constructive 

possession). 

 Here, Plunkett denied knowledge of the contents of the bag. 

Other than the fact that Plunkett's personal items were found in 

the bag, there was no evidence that Plunkett had access to the 

bag, or that the bag was ever subject to his possession and/or 

dominion and control. In fact, witness Angela Wilson testified 

that the bag belonged to her and claimed that she put the items 

belonging to Plunkett, as well as the deposit tickets belonging 

to herself and David Hamlett, in the bag. She denied knowledge 

of the contents in the bag related to the drugs. 

 Despite the above, Plunkett's flight from police does 

provide some evidence of guilty knowledge. His possession of 

items associated with drug use and distribution (such as the 

pager and the large sum of cash) are also factors to be 

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considered by the trier of fact. Yet, these factors alone do 

not establish guilt. See White v. Commonwealth, 25 Va. App. 

662, 668, 492 S.E.2d 451, 454 (1997) (en banc); see also Glasco 

v. Commonwealth, 26 Va. App. 763, 775, 497 S.E.2d 150, 156 

(1998), affirmed 257 Va. 433, 513 S.E.2d 137 (1999); Langhorne v. 

Commonwealth, 13 Va. App. 97, 102, 409 S.E.2d 476, 480 (1991). 

 While it is true that in resolving questions of possession, 

a court must consider "the totality of the circumstances 

disclosed by the evidence," the evidence here, even combined, 

simply does not relate Plunkett with the drugs in the gym bag. 

See Womack, 220 Va. at 8, 255 S.E.2d at 353. At most, the 

evidence establishes a suspicion that Plunkett knew about the 

drugs and/or had some degree of dominion and control over the 

gym bag and its contents. "Suspicious circumstances no matter 

how grave or strong, are not proof of guilt sufficient to 

support a verdict of guilty." Burchette, 15 Va. App. at 437-38, 

425 S.E.2d at 85 (citations omitted). 

 Furthermore, the fact that Plunkett nodded toward the bag 

when asked for identification establishes only that Plunkett 

knew his wallet and/or identification was in the bag. It does 

not establish that the bag was his, nor that he had knowledge, 

dominion, or control over the bag and its contents. 

 As we held in Burchette, "[this] evidence simply does not 

exclude the very real possibility that . . . someone other than 

[Plunkett] used or had access to the [gym bag] and had left the 

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drugs there unbeknownst to him. . . . The evidence does not 

exclude every reasonable hypothesis of innocence." Burchette,

15 Va. App. at 438, 425 S.E.2d at 85. "When, from the 

circumstantial evidence, it is just as likely, if not more 

likely, that a reasonable hypothesis of innocence explains the 

accused's conduct, the evidence cannot be said to rise to the 

level of proof beyond a reasonable doubt. The Commonwealth need 

not exclude every possible theory or surmise, but it must 

exclude those hypotheses which flow from the evidence itself." 

Haskins v. Commonwealth, 31 Va. App. 145, 151, 521 S.E.2d 777, 

780 (1999) (citations omitted). 

 Thus, we hold that the Commonwealth failed to carry its 

burden of proof with regard to both the elements of knowledge 

and possession. Because knowledge and possession are essential 

elements of the crime with which Plunkett was charged, we 

reverse the conviction and enter final judgment dismissing the 

indictment. 

 In a separate but related appeal, Plunkett argues that the 

trial court erred when it subsequently revoked his suspended 

sentence for a prior drug conviction. Plunkett argues that the 

trial court erred because it was required to continue the 

revocation matter pending the outcome of his appeal. We 

disagree with Plunkett's contention. 

 "[In] a proceeding to revoke probation, a trial court may 

take steps to ensure that a defendant will not be incarcerated 

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because of a revocation based on an improper conviction. If a 

defendant's suspended sentence is revoked, execution of the 

sentence may be postponed pending an appeal. [However,] the 

decision to grant or deny a continuance in a criminal case lies 

within the sound discretion of the trial court." Patterson v. 

Commonwealth, 12 Va. App. 1046, 1049, 407 S.E.2d 43, 45 (1991). 

 Accordingly, we affirm the trial court's decision on this 

basis. However, in light of our decision to reverse and dismiss 

the underlying conviction, we remand this matter to the trial 

court for further proceedings consistent with that decision. 

See id. at 1049-50, 407 S.E.2d at 45 (if, on appeal of a 

revocation proceeding, the underlying conviction is reversed, 

the revocation must also be reversed). 

 Record No. 3002-99-3,

 reversed and dismissed.

 Record No. 0257-00-3, 

affirmed and remanded.

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