COURT OF APPEALS OF VIRGINIA

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COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judges Willis and Annunziata

Argued at Chesapeake, Virginia

MARVIN WALTER HASKINS

OPINION BY

v. Record No. 1423-98-1 CHIEF JUDGE JOHANNA L. FITZPATRICK

DECEMBER 7, 1999

COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS

Robert P. Frank, Judge

Gail Starling Marshall (Timothy S. Fisher;

Overman & Cowardin, P.L.C., on brief), for

appellant.

Leah A. Darron, Assistant Attorney General

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

for appellee.

Marvin Walter Haskins (appellant) was convicted in a bench

trial of possession of cocaine, in violation of Code 18.2-250.

On appeal, he argues the evidence was insufficient to prove that

he constructively possessed the cocaine. For the following

reasons, we reverse.

I.

Under familiar principles of appellate review, we examine

the evidence in the light most favorable to the Commonwealth,

the prevailing party below, granting to it all reasonable

inferences fairly deducible therefrom. See Juares v.

Commonwealth, 26 Va. App. 154, 156, 493 S.E.2d 677, 678 (1997).

So viewed, the evidence established that on January 9, 1998,

three uniformed police officers executed a search warrant at the

TDY Inn, Room 111, in the City of Newport News. Detective

Richard Dawes (Dawes) made a "knock and announce" entry and

observed numerous people in the front of the room and in the

back bedroom. As Dawes walked down the hallway, he observed

appellant leaving the bathroom. Dawes testified that appellant

"wasn't standing in the hallway, he wasn't standing at the

doorway, he was coming out of the bathroom into the hallway."

Dawes and his fellow officers directed the occupants of the

room, including appellant, to be seated in the living room.

Dawes described the search of the hotel room and bathroom as

follows:

After we got the people in the back bedroom

under control and . . . [the search] warrant

was served and everything, I went back into

the bathroom where I had observed

[appellant] coming out of. The door was

open at this time. I pushed the door closed

and looked directly behind the door, which

would be between the door and the wall which

was just right at the hallway, I observed a

dollar bill was crumpled up.

The dollar bill contained several rocks of what Dawes "believed

to be crack cocaine." Nobody entered or left the bathroom

between the time Dawes saw appellant coming out and Dawes'

discovery of the dollar bill behind the door.

Detective Randy Ronneberg (Ronneberg) acted as the evidence

collection officer during the search of the hotel room.

Ronneberg collected only the dollar bill containing the

suspected narcotics from the bathroom. After gathering the

evidence but before leaving the hotel room, Ronneberg told

appellant that suspected cocaine had been seized from the

bathroom.

While appellant was seated in the front of the hotel room,

Detective Carl Cespedes (Cespedes) overheard appellant talking

to another person seated to his left. Appellant stated,

"they're trying to pin that stuff on me in the bathroom, but

it's only baking soda." At the time Cespedes overheard

appellant's statement, the detective was unaware of what had

been found in the bathroom. Laboratory testing confirmed that

the rocks found in the dollar bill were .57 grams of cocaine.

Appellant presented no evidence. The trial court overruled

appellant's motion to strike the evidence and found appellant

guilty as charged.

II.

When the sufficiency of the evidence is challenged on

appeal, we determine whether the evidence, viewed in the light

most favorable to the prevailing party, the Commonwealth, and

the reasonable inferences fairly deducible from that evidence

support each and every element of the charged offense. See

Moore v. Commonwealth, 254 Va. 184, 186, 491 S.E.2d 739, 740

(1997); Derr v. Commonwealth, 242 Va. 413, 424, 410 S.E.2d 662,

668 (1991). "In so doing, we must discard the evidence of the

accused in conflict with that of the Commonwealth, and regard as

true all the credible evidence favorable to the Commonwealth and

all fair inferences that may be drawn therefrom." Watkins v.

Commonwealth, 26 Va. App. 335, 349, 494 S.E.2d 859, 866 (1998).

"We will not reverse the judgment of the trial court, sitting as

the finder of fact in a bench trial, unless it is plainly wrong

or without evidence to support it." Reynolds v. Commonwealth,

30 Va. App. 153, 163, 515 S.E.2d 808, 813 (1999) (citing Martin

v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418

(1987)).

On appeal, appellant contends that the circumstantial

evidence was insufficient to prove his possession of the

cocaine. He argues that his proximity to the cocaine was

insufficient to prove possession and that the Commonwealth's

evidence failed to prove that he was aware of the presence and

character of the cocaine found in the bathroom. We agree.

To establish possession of a controlled substance, the

Commonwealth must prove that "'the defendant was aware of the

presence and character of the particular substance and was

intentionally and consciously in possession of it.'" McNair v.

Commonwealth, ___ Va. App. ___, ___, ___ S.E.2d ___, ___ (1999)

(en banc) (quoting Gillis v. Commonwealth, 215 Va. 298, 301, 208

S.E.2d 768, 771 (1974)). However, "[c]onstructive possession

may be proved through evidence demonstrating 'that the accused

was aware of both the presence and character of the substance

and that it was subject to his or her dominion and control.'"

Id. at ___, ___ S.E.2d at ___ (quoting Wymer v. Commonwealth, 12

Va. App. 294, 300, 403 S.E.2d 702, 706 (1991)). "Knowledge of

the presence and character of the controlled substance may be

shown by evidence of the acts, statements or conduct of the

accused." Eckhart v. Commonwealth, 222 Va. 447, 450, 281 S.E.2d

853, 855 (1981); see Glasco v. Commonwealth, 26 Va. App. 763,

774, 497 S.E.2d 150, 155 (1998).

Proof by circumstantial evidence "'is not sufficient . . .

if it engenders only a suspicion or even a probability of guilt.

Conviction cannot rest upon conjecture.'" Littlejohn v.

Commonwealth, 24 Va. App. 401, 414, 482 S.E.2d 853, 859 (1997)

(quoting Hyde v. Commonwealth, 217 Va. 950, 955, 234 S.E.2d 74,

78 (1977)). "'"[A]ll necessary circumstances proved must be

consistent with guilt and inconsistent with innocence and

exclude every reasonable hypothesis of innocence."'" Betancourt

v. Commonwealth, 26 Va. App. 363, 373, 494 S.E.2d 873, 878

(1998) (quoting Stover v. Commonwealth, 222 Va. 618, 623, 283

S.E.2d 194, 196 (1981) (quoting Inge v. Commonwealth, 217 Va.

360, 366, 228 S.E.2d 563, 567 (1976))). "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." Littlejohn, 24

Va. App. at 414, 482 S.E.2d at 859 (quoting Haywood v.

Commonwealth, 20 Va. App. 562, 567-68, 458 S.E.2d 606, 609

(1995)). The Commonwealth need not "exclude every possible

theory or surmise," but it must exclude those hypotheses "which

flow from the evidence itself." Cantrell v. Commonwealth, 7 Va.

App. 269, 289-90, 373 S.E.2d 328, 338-39 (1988) (citations

omitted). The evidence in the instant case fails to prove

appellant's guilt beyond a reasonable doubt.

The Commonwealth's evidence failed to prove acts or conduct

from which the trial court could infer beyond a reasonable doubt

that appellant knowingly and intentionally possessed the cocaine

found in the dollar bill located behind the bathroom door. When

Officer Dawes first entered the hotel room he observed appellant

leaving the bathroom, but no evidence negated the reasonable

hypothesis that one of the other "numerous" individuals in the

room placed the crumpled dollar bill with the cocaine in it

behind the bathroom door. In fact, drugs were found on other

occupants of the room. Additionally, no evidence proved that

appellant had a lawful interest in the hotel room. Officer

Dawes admitted on cross-examination that there was "no reason to

suspect that [appellant] had any ownership, rental, or control

in this room at all" and that another individual rented the

hotel room. Appellant's mere proximity to the cocaine found in

the bathroom is not sufficient to prove his possession of the

controlled substance. See Walton v. Commonwealth, 255 Va. 422,

426, 497 S.E.2d 869, 872 (1998).

Additionally, the evidence established that Officer

Ronnenberg told appellant that suspected cocaine had been found

in the bathroom. Although appellant's statement that the

officers were "trying to pin" the cocaine on him and that the

substance was "only baking soda" proves that appellant knew the

officers had found some suspected substance behind the bathroom

door, it proves little else. The record discloses neither the

context of this statement nor whether appellant actually

believed the substance was baking soda. Viewed as a whole, the

circumstantial evidence is suspicious, but does not prove beyond

a reasonable doubt that appellant constructively possessed the

cocaine found behind the bathroom door. "Suspicion, no matter

how strong, is not enough. Convictions cannot rest upon

speculation and conjecture." Littlejohn, 24 Va. App. at 415,

482 S.E.2d at 860 (citations omitted). For the foregoing

reasons, we reverse the conviction.

Reversed.

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