William H. Harrison, Jr. v CW

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Coleman, Humphreys and Senior Judge Overton
Argued at Chesapeake, Virginia
WILLIAM H. HARRISON, JR.
MEMORANDUM OPINION* BY
v. 	Record No. 1973-99-1 	JUDGE ROBERT J. HUMPHREYS
AUGUST 8, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF SUFFOLK
Westbrook J. Parker, Judge
David J. Whitted, Assistant Public Defender
(Office of the Public Defender, on brief),
for appellant.
Stephen R. McCullough, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
William H. Harrison, Jr. was convicted in a bench trial of
possession of heroin. 	He argues on appeal that the evidence
presented was insufficient as a matter of law to support a
conviction. 	We agree and for the reasons that follow, we
reverse the decision of the trial court.
I. 	Background
The parties are fully conversant with the facts of this
case, and this memorandum opinion recites only those facts
necessary to the disposition of the issue.

On December 30, 1998, Suffolk police officers were
conducting a narcotics surveillance of a residence. 	At
approximately 3:00 p.m., they observed a white Ford, driven by
Harrison, pull up to the house and stop. 	The officers testified
that they observed Harrison get out of the car and "hurriedly"
walk to the house. 	Harrison then returned to his vehicle a few
minutes later with an occupant of the house, and they appeared
to look around in the back seat of the car. 	The occupant of the
house then returned inside, and Harrison drove away.
The officers decided to follow Harrison and after observing
him commit several moving traffic infractions, they stopped the
vehicle. 	The vehicle was registered to William and Angela
Harrison. 	After determining that Harrison's driver's license
was suspended, the officers arrested him for driving on a
suspended license and reckless driving. 	An inventory search of
the vehicle disclosed a coffee straw, which contained heroin
residue, resting on the transmission hump beside the driver's
seat, debris scattered throughout the vehicle, and stolen
computer equipment on the rear seat.1
II. 	Analysis
"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
1 Harrison was also charged with receiving stolen property
and was acquitted of this offense.
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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).
The law applicable to the issue presented here 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, and subject to the dominion and
control of the accused. 	Knowledge of the presence and character
of the controlled substance is required but such knowledge 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. 	See id. at 7, 255
S.E.2d at 352. 	Nevertheless, the possession need not be
exclusive. 	See Ritter v. Commonwealth, 210 Va. 732, 741, 173
S.E.2d 799, 805-06 (1970). 	See also Eckhart v. Commonwealth,
222 Va. 447, 450, 281 S.E.2d 853, 855 (1981).
Suspicious circumstances, including
proximity to a controlled drug, are
insufficient to support a conviction. 	To
support a conviction based upon 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." 	Circumstantial
evidence is sufficient to prove guilt beyond
a reasonable doubt so long as "all necessary
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circumstances proved . . . [are] consistent
with guilt and inconsistent with innocence
and must exclude every reasonable hypothesis
of innocence." 	The Commonwealth "need not
affirmatively disprove all theories which
might negate the conclusion that the
defendant . . . [possessed the heroin], but
the conviction will be sustained if the
evidence excludes every reasonable
hypothesis of innocence."
McNair v. Commonwealth, 31 Va. App. 76, 86, 521 S.E.2d 303, 308
(1999) (en banc) (citations omitted).
The Commonwealth suggests that Harrison appearing at a
residence where narcotic sales were suspected to occur and his
possession of stolen property were factors that indicate
Harrison is a drug user. 	Assuming without deciding that such an
inference is reasonable, the Commonwealth failed to establish
that Harrison ever used the coffee straw to consume heroin or
was aware that it had been used by anyone else for such a
purpose.
In summary, the evidence when viewed in the light most
favorable to the Commonwealth, established nothing more than
mere proximity to the coffee straw containing heroin residue and
fell short of removing every reasonable hypothesis consistent
with innocence.
Reversed and dismissed.
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