COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Moon, Judge Elder and Senior Judge Cole 

Argued at Richmond, Virginia 

PATRICK HALL 

 MEMORANDUM OPINION* BY 

v. Record No. 0003-96-2 CHIEF JUDGE NORMAN K. MOON 

 AUGUST 27, 1996 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF HOPEWELL 

James F. D'Alton, Jr., Judge 

 Brad P. Butterworth (Butterworth & Waymack, 

on brief), for appellant. 

 Kathleen B. Martin, Assistant Attorney 

General (James S. Gilmore, III, Attorney 

General, on brief), for appellee. 

 Patrick Hall appeals from his conviction of possession of 

cocaine with intent to distribute in violation of Virginia Code 

§ 18.2-248. He argues that insufficient evidence was presented 

by the Commonwealth to establish that he constructively possessed 

cocaine. We agree and reverse the conviction. 

 On February 1, 1995, Detective Michael Whittington, Officer 

Michael Walls, Officer Kenneth Wontz, and other officers of the 

Hopewell Police Department executed a search warrant at 712 

Crestline Boulevard in Hopewell. The residence at 712 Crestline 

is a one-story duplex that was leased to Lawrence Irving and had 

utilities in the name of Ernest Johns, Jr. The residence had 

been under surveillance for several weeks prior to the search on 

 

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

designated for publication. 
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February 1, as a result of twenty-five to thirty citizen 

complaints that the residence was the center of suspected drug 

activity. Surveillance was conducted in three-to-four hour 

increments rather than twenty-four hours a day. Detective 

Whittington observed considerable vehicle and occasional foot and 

bicycle traffic during the course of his surveillance. On the 

night of the search, Detective Whittington observed several 

vehicles stop at the residence. One vehicle was stopped shortly 

after departing from the residence and its occupants were 

arrested for possession of crack cocaine. 

 At the time of the search, Detective Whittington and the 

accompanying officers were unaware of who was inside the 

residence. The officers approached from the rear of the duplex; 

no lights were on, and the dwelling was completely dark. Officer 

Walls testified that he could see a person's hand on the blinds 

as they passed underneath a window. The officers knocked and 

announced their presence, after fifteen to thirty seconds, no one 

responded and they made forcible entry. The persons in the house 

appeared to be surprised by the entry. The police found 

appellant seated alone in the kitchen directly adjacent to the 

window in which Officer Walls observed the hand. In addition to 

appellant, the officers found Michael McKoy lying on the floor in 

the living room and Peter McCrea standing in a back bedroom. 

 Appellant, McKoy, and McCrea were handcuffed and brought to 

the living room where they were informed of the purpose of the 
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search. Officers discovered a torn plastic baggie with three 

loose pieces of cocaine and a razor blade on top of a water 

heater in a closet adjacent to the bedrooms. The loose pieces 

were later determined to constitute 2.2 grams of cocaine. The 

officers also discovered a plastic bag in the attic crawl space 

which held twenty-four small plastic bag corners containing solid 

material subsequently determined to be 25.6 grams of cocaine. A 

triple beam scale was also found in the attic crawl space. The 

attic crawl space was accessed by a panel opening in the ceiling 

located in a hallway between the den, bathroom, and two bedrooms. 

 The opening was not more than five feet from any of the rooms. 

At the time of the search, the panel was down. 

 Upon concluding the search of the premises, the officers 

searched appellant, McKoy, and McCrea. The police found $95.81 

on appellant's person. Detective Whittington also discovered a 

computer-calculator on a wooden stand in the living room near the 

television about ten feet from where appellant was sitting. 

Whittington had previously seized the computer in another 

incident with appellant, and appellant acknowledged ownership of 

it. Appellant's jacket was discovered hanging on the rear side 

of a bedroom door; a door which abutted the door of the closet 

where the water heater was located if both doors were open. A 

letter addressed to appellant at 503 Cedar Level Road, Hopewell, 

was in the pocket of the jacket. 

 One thousand and ninety-five dollars in cash was found in 
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McKoy's right front pocket. McKoy testified that he had been 

"rolled over" while he was lying on the floor and the cash placed 

in his pocket. He also had a pager and $42 in his left pocket, 

which he stated was his own money. McCrea had a pager and 

$100.55 in cash on his person. 

 At the conclusion of the search appellant, McKoy, and McCrea 

were transported to the police station for further questioning. 

Appellant stated he did not know either McKoy or McCrea and 

explained that he had arrived at the duplex at about 9:30 p.m. to 

see Lawrence Irving, the lessee of the premises. He stated that 

it was his intention to stay overnight and that he had brought no 

drugs with him. 

 At trial appellant did not testify, but produced one 

witness, Roswell Stith, who testified appellant rented a room in 

her home at 503 Cedar Lane. She also testified that appellant 

was not employed but helped out around the house and assisted 

Stith and her husband in making and selling Christmas wreaths. 

McCrea and McKoy both testified that they did not know each other 

or appellant before arriving at the duplex. They further denied 

having any knowledge of drugs on the premises. 

 On appeal, we review the evidence in the light most 

favorable to the Commonwealth, granting to it all reasonable 

inferences fairly deducible therefrom. Higginbotham v. 

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

proving possession of a controlled substance, the Commonwealth 
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 may prove either actual or constructive possession. Pemberton 

v. Commonwealth, 17 Va. App. 651, 440 S.E.2d 420 (1994). The 

record indicates that appellant did not have drugs or drug 

contraband on his person. Nor were drugs or drug contraband 

found in appellant's immediate presence in the kitchen where he 

was seated. Consequently, the Commonwealth must rely upon 

evidence that proved constructive possession. 

 "`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.'" McGee v. Commonwealth, 4 Va. App. 317, 

322, 357 S.E.2d 738, 740 (1987) (quoting Drew v. Commonwealth, 

230 Va. 471, 473, 338 S.E.2d 844, 845 (1986) (citations 

omitted)). Although proximity to a controlled substance "is a 

factor to consider when determining whether the accused 

constructively possessed drugs," it is "insufficient alone to 

establish possession." Brown v. Commonwealth, 15 Va. App. 1, 9, 

421 S.E.2d 877, 882 (1992) (en banc). 

 The record does not prove that appellant was connected with 

the specific drugs discovered. Although Detective Whittington 

observed appellant at the residence on prior occasions, the 

letter found in appellant's jacket and Stith's testimony indicate 

appellant was not a resident of the duplex leased to Lawrence 
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Irving, but rather was a visitor. 

 There is no evidence that appellant was in a position to see 

the drugs or drug paraphernalia. Appellant's calculator, while 

potentially useful in drug operations, is nevertheless not 

contraband and is insufficient to establish appellant's awareness 

of the drugs. The cocaine discovered during the search was 

concealed in the attic and on the top of a water heater in a 

closet. The cocaine in the attic could not be reached without 

the assistance of two officers who lifted a third officer. 

Further there is sufficient evidence to suggest that other 

persons, including the leaseholder Lawrence Irving, could have 

concealed the drugs in the duplex without appellant's 

participation. Detective Whittington testified that during his 

surveillance operation he observed "hand-to-hand transactions" 

taking place, but none involved appellant and that appellant's 

visits were infrequent. Detective Whittington also stated that 

because there was not twenty-four hour surveillance, it is 

possible that Lawrence Irving could have spent significant time 

in the duplex. 

 "Whenever `evidence leaves indifferent which of several 

hypotheses is true, or merely established only some finite 

probability in favor of one hypothesis, such evidence does not 

amount to proof of guilt beyond a reasonable doubt.'" Pemberton, 

17 Va. App. at 654, 440 S.E.2d at 422 (quoting Sutphin v. 

Commonwealth, 1 Va. App. 241, 248, 337 S.E.2d 897, 900 (1985)). 
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While "[t]he Commonwealth is not required to prove that there is 

no possibility that someone else may have planted, discarded, 

abandoned or placed the drugs or paraphernalia," Brown, 15 Va. 

App. at 10, 421 S.E.2d at 883, nevertheless, "all reasonable 

hypotheses of innocence must be excluded." Pemberton, 17 Va. 

App. at 655, 440 S.E.2d at 422. The Commonwealth chose to put in 

evidence appellant's statement to the police that he was a mere 

visitor to the premises and possessed no drugs. Because the 

drugs were concealed in the residence and a number of persons 

were observed to have entered the residence prior to the search, 

the evidence does not exclude as a reasonable hypothesis 

appellant's innocence based on his statement. 

 The facts here are less compelling than those of two other 

cases in which the evidence was, nonetheless, held insufficient 

to support a finding of constructive possession. See Drew v. 

Commonwealth, 230 Va. 471, 338 S.E.2d 844 (1986); Pemberton, 17 

Va. App. 651, 440 S.E.2d 420. 

 This is insufficient to prove constructive possession by the 

defendant. Accordingly, we reverse the conviction. 

 Reversed.