Tony Brown v Commonwealth of Virginia

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COURT OF APPEALS OF VIRGINA

Present: Judges Bray, Clenents and Senior Judge Hodges
Argued at Chesapeake, Virginia

TONY BROWN
MEMORANDUM OPI N ON’ BY
Vv. Record No. 2516- 99- 1 J UDGE RICHARD S. BRAY
OCTOBER 10, 2000
COMVONWEALTH OF VI RGI NA

FROM THE CI RCU'T COURT OF THE CITY OF PORTSMOUrFH
Johnny E. Mrrison, Judge

S. Jane Chittom Appellate Counsel (Public

Defender Conmssion, on briefs), for

appel | ant.

Virginia B. Theisen, Assistant Attorney

General (Mark L. Earley, Attorney General, on

brief), for appellee.

Tony Brown (defendant) was convicted in a bench trial for
possession of heroin wth intent to distribute, a violation of
Code § 18. 2-248. On appeal, he contends the evidence was
insufficient to support the conviction. W agree and reverse the
trial court.

The parties are fully conversant wth the record, and this
nenodrandum opinion recites only those facts necessary to a

disposition of the appeal. In accordance wth well established

principles, we viewthe evidence in the light nost favorable to

* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.

the Commonwealth. 	See Archer v. Commonwealth, 26 Va. App. 1, 11,
492 S.E.2d 826, 831 (1997).
"To establish 'possession' in the legal sense, not only
must the Commonwealth show actual or constructive possession of
the drug by the defendant, it must also establish that the
defendant intentionally and consciously possessed the drug with
knowledge of its nature and character." 	Williams v.
Commonwealth, 14 Va. App. 666, 669, 418 S.E.2d 346, 348 (1992)
(citation omitted). 	"'Knowledge of the presence and character
of the controlled substance may be shown by evidence of the
acts, statements or conduct of the accused.'" 	Id. at 669, 418
S.E.2d at 348 (citation omitted). 	Circumstantial evidence is
sufficient to establish the requisite elements of possession,
provided such proof excludes every reasonable hypothesis of
innocence. 	See Tucker v. Commonwealth, 18 Va. App. 141, 143, 442
S.E.2d 419, 420 (1994). 	"Whenever the evidence leaves indifferent
which of several hypotheses is true, or merely establishes only
some finite probability in favor of one hypothesis, such evidence
does not amount to proof of guilt beyond a reasonable doubt."
Sutphin v. Commonwealth, 1 Va. App. 241, 248, 337 S.E.2d 897, 900
(1985).
Here, Portsmouth detectives observed defendant and "another
gentleman," later identified as "Mr. McClelland," standing "very
close together" on a street corner. 	As the detectives approached
in an "unmarked" police vehicle, McClelland "handed [defendant] a
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small plastic container," defendant glanced toward the police car,
and, without "look[ing] at the item," immediately returned it to
McClelland. 	McClelland then fled with detectives in pursuit,
discarding the container, later recovered and identified as a
"Tic-Tac box," in his haste. 	Subsequent investigation and
analysis of the contents revealed "forty-five capsules" of
"off-white powder," 2.81 grams of heroin.
Thus, the record establishes only that McClelland passed
defendant an innocuous closed container as the two men
conversed, which defendant immediately returned, without
examination. 	Again in possession of the box and aware of police
presence, McClelland fled, then ridding himself of the
contraband, while defendant remained at the scene. 	Such
evidence suggests a myriad of scenarios consistent with
defendant's innocence. 	The Commonwealth's argument that his
quick return of the box constituted evasive action indicative of
"a consciousness of guilt" is unpersuasive. 	To the contrary,
and more compelling, defendant did not join McClelland in flight
at the sight of police.
Thus, while defendant's conduct may have aroused suspicion
of criminal conduct, "'suspicion of guilt, however strong, is
insufficient to support a criminal conviction.'" 	Boothe v.
Commonwealth, 4 Va. App. 484, 492, 358 S.E.2d 740, 745 (1987)
(citation omitted).
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Accordingly, we reverse the conviction.

Reversed and dismssed.