dissenting.
I join in Judge Barrow’s dissent. In addition, however, I would reverse the conviction because of insufficient evidence.
When a conviction based upon evidence of constructive possession is challenged on appeal, “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 [accused] was aware of both the presence and character of the substance and that it was subject to [the accused’s] dominion and control.” Powers v. Commonwealth, 227 Va. 474, 476, 316 S.E.2d 739, 740 (1984). “But mere proximity to a controlled drug is not sufficient to establish possession.” Wright v. Commonwealth, 217 Va. 669, 670, 232 S.E.2d 733, 734 (1977). Likewise, “occupancy of . . . [a] vehicle ... in which a controlled substance was found shall not create a presumption that such person either knowingly or intentionally possessed such controlled substance.” Code § 18.2-250.
Although Faith Angela Josephs was convicted of larceny of the vehicle, the fact of that conviction adds little to the determination whether Josephs was aware of the presence and character of the marijuana and exercised dominion and control over it. The evidence concerning both the possession of marijuana and the larceny of the vehicle was offered at the same trial proceeding held on February 2, 1987, and is contained in the record on this appeal. Viewed in the light most favorable to the Commonwealth, the evidence established that when the rental vehicle was stopped at 7:40 a.m., Josephs was lying on the back seat of the vehicle with her five year old daughter. The driver of the vehicle gave the police rental documents which listed the lessee as John Crooks but did not contain the name of either the driver or Josephs. The driver was arrested for larceny after the police officer verified that “there was no permission.”
On the front bottom corner of the rental form, in letters that are not prominent, are. the words “car cannot be driven out of originating state without written permission on ‘supplemental special charges form.’ General [, the lessor,] not responsible for lost or stolen items.” The rear of the form contains a full page of “Terms for renting a General car,” including the following lines *109under the heading “special charges:”
I understand that I must have your written permission to return the car to another city. Special charges may apply if I do so. I also understand that I must have your written permission to drive the car outside the state of rental, and special charges may apply if I do so. I acknowledge that I have been furnished with your “Supplemental Special Charges Form” which forms a part of this agreement at time of rental. I agree to pay any such charges in addition to the rates and charges described on the other side of this agreement.
Josephs also was arrested at that time for larceny of the vehicle and was questioned. She denied knowledge of the marijuana and she said “only that she was going to go to New York with this other guy who was driving the car.” Josephs pled not guilty to the larceny charges.
Although Josephs has not appealed the larceny conviction, these facts comprise the entire evidence upon which Josephs was convicted of larceny of the vehicle. Thus, we are not required to speculate concerning inferences to be drawn from the facts underlying the larceny conviction. The record before us is a testament to the sparsity of evidence upon which Josephs’ conviction was based. On the facts in this record, the majority merely speculates when it infers that Josephs stole the vehicle for the purpose of transporting the marijuana from Miami to New York. For unknown reasons, Josephs did not appeal the larceny conviction. The absence of a petition for appeal from the larceny conviction, however, does not provide a license for the Court to conjure up a scenario of horribles. Based on the facts underlying the larceny conviction, one can only reasonably infer that Josephs was convicted of larceny of the vehicle based solely on her presence as a passenger in a leased vehicle being operated contrary to the lease agreement.
On the possession charge, the evidence establishes that Josephs was a passenger in a vehicle that contained marijuana in its trunk. When the vehicle was stopped at 7:40 a.m. by the state police, Josephs was lying on the backseat with her five year old daughter. Although Josephs’ suitcase was in the trunk, there is no evidence that she had placed it there or that she had been in the trunk. *110There is also no evidence in this record that, after leaving Dade County, Josephs entered the trunk for her suitcase. The record contains no evidence that the occupants of the vehicle spent the night at a motel or changed clothing. Contrary to the majority’s assertion, there is no basis upon which to infer that Josephs carried a suitcase for the purpose of using it on the highway or that she needed or, in fact, used her one piece of luggage during the trip.
The marijuana which was discovered in the trunk was concealed in closed, opaque garbage bags. No marijuana was found on Josephs or in her suitcase. The officer testified that Josephs stated she did not know marijuana was in the trunk. The majority’s conclusion that the officer’s paraphrase of Josephs’ statement, “said she didn’t know about drugs. 1st time I’ve driven with that stuff,” proves that Josephs knew marijuana was in the trunk is simply incredible.
The evidence in this record only proves Josephs’ proximity to the marijuana. No acts, statements, or other conduct establishes that Josephs was aware of the presence and character of the marijuana and that the marijuana was subject to her control. “A conviction resting on circumstances which cast ‘a suspicion of guilt, however strong, or even a probability of guilt is insufficient to support a criminal conviction.’ ” Sutphin v. Commonwealth, 1 Va. App. 241, 244, 337 S.E.2d 897, 898 (1985) (quoting Bishop v. Commonwealth, 227 Va. 164, 170, 313 S.E.2d 390, 393 (1984)). Because the record contains no evidence sufficient in law to support the conviction, I would reverse the judgment and dismiss the indictment.