COURT OF APPEALS OF VIRGINIA

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COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judges Elder and Bray
Argued at Chesapeake, Virginia

McARTHUR TABLES
MEMORANDUM OPINION* BY
v. Record No. 1419-99-1 JUDGE RICHARD S. BRAY
FEBRUARY 29, 2000
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
Walter J. Ford, Judge

Charles E. Haden for appellant.

Stephen R. McCullough, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.

McArthur Tables (defendant) was convicted in a bench trial
for possession of cocaine with intent to distribute, a violation
of Code 18.2-248. On appeal, he complains that the evidence was
insufficient to support the conviction. We agree and reverse the
decision of the trial court.
"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.
Viewed accordingly, the record discloses that Hampton Police
Officer Greg Williams stopped an automobile for a traffic
violation at approximately 1:25 a.m. on May 4, 1998. The vehicle
was occupied by four persons, including the driver, two in both
the front and rear. Defendant was seated at the right rear,
"staring into space" and "somewhat incoherent," appearing
"intoxicated" or "under the influence of something." After
everyone exited the vehicle, Williams "shined [his] light" inside
and observed "a baggy" of suspected cocaine," "on the floorboard"
"right where [defendant's] feet were," and immediately arrested
him for the instant offense. No money or "smoking devices" were
on defendant's person, and he denied knowledge of the drugs.
During the investigation, the driver was found in possession
of scales and a "large sum of money" and was also arrested for a
drug offense.

In challenging the sufficiency of the evidence to support the
conviction, defendant argues that the Commonwealth failed to prove
that he knowingly and intentionally possessed the offending drugs.
To support a conviction based on
constructive possession, as in this case,
"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)). Thus, "'[s]uspicious circumstances,
including the proximity to a controlled drug, are insufficient
to support a conviction.'" McNair v. Commonwealth, 31 Va. App.
76, 86, 521 S.E.2d 303, 308 (1999) (en banc) (citation omitted);
see also Code 18.2-250(A).
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)).
However, "[t]he 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).
In Crisman v. Commonwealth, 197 Va. 17, 87 S.E.2d 796
(1955), the Supreme Court of Virginia addressed circumstances
which mirror the instant record. Police stopped a vehicle
occupied by five persons, including the two defendants, the
Crisman brothers, both in the back seat. A search of the car
revealed heroin on the rear floor, but everyone denied knowledge
of the narcotics. In reversing the conviction, the Court
concluded
that it would be unreasonable to assume that
the occupants of the front seat would have
dropped the powder in the back of the car in
plain view of the defendants. It appears
equally unreasonable to assume that the
occupants of the rear seat would have
deposited the drug immediately under their
feet rather than spill it to the winds
through the car window. . . . Who put it
there or who had possession of it before it
was placed on the floor we do not know. The
conclusion that the defendants, or either of
them, possessed the drug is speculation
rather than proof.
Id. at 20, 87 S.E.2d at 798-99.
Here, the drugs were discovered on the rear floor of a
darkened car occupied by four persons, defendant, another person
on the back seat with him, a driver then in possession of
scales, a large sum of cash, and committing a drug offense, and
an additional front seat passenger. Defendant, apparently
heavily intoxicated and incoherent, made no furtive or
suspicious movements before or after the stop, uttered no
inculpating remark or statement, or otherwise incriminated
himself. Such evidence, without more, clearly fails to exclude
every reasonable hypothesis of defendant's innocence.
Accordingly, the evidence was insufficient to prove that
defendant possessed the offending drugs, and we reverse the
conviction.
Reversed and final judgment.

* Pursuant to Code 17.1-413, recodifying Code
17-116.010, this opinion is not designated for publication.
Subsequent analysis identified the substance as 29.9 grams
of crack cocaine.

The record suggests that the driver was convicted for
possession of cocaine.

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