FROM THE CIRCUIT COURT OF HANOVER COUNTY. Richard H. C. Taylor, Judge.
Linwood T. Wells, III, for appellant.
Ruth Ann McKeaney, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.
Present: Judges Elder, Bray and
Senior Judge Baker.
MEMORANDUM OPINION [*]
LARRY G. ELDER,
Delnor Jose Banks (appellant) appeals from his bench trial conviction for possession of cocaine. On appeal, he contends the evidence was insufficient to support his conviction. For the reasons that follow, we agree and reverse the conviction.
Shortly before 7:00 p.m. on June 23, 1997, Deputy Sheriff Brian Bradley saw a car parked on the side of a road, and he pulled up behind it. As Bradley approached on foot to see " if everything was okay, " he saw the vehicle's front-seat passenger " lean down" as if " he was trying to hide something, " and Bradley noticed smoke coming out from under the middle of the vehicle's " front seat area." When Bradley asked appellant about the source of the smoke, appellant responded that " he did not know unless it was a cigarette." Appellant denied that he and his passenger were doing anything illegal and told Bradley that his car had overheated, but when Bradley looked at the temperature gauge, it displayed a normal reading.
During a consent search, Bradley found cocaine on the passenger, but appellant denied that there was any crack cocaine in the vehicle. However, in a search of the vehicle, Bradley found a small, clear container of what proved to be crack cocaine and a set of scales in the glove box, a razor blade with an unidentified white residue on it in the ashtray, and two one-hundred-dollar bills in the driver's side door console. At some point during the encounter, Deputy Bradley determined that the smoke he saw was emanating from a beer can, but he provided no other testimony regarding the significance of the can, other than to say he did not attempt to have it fingerprinted. Deputy Bradley testified that he did not recall checking the car's registration but believed the vehicle belonged to appellant's wife because she came to the sheriff's office to try to get it back.
Appellant testified and denied any knowledge of the cocaine in the car or in the passenger's possession. He said he was aware his passenger had a beer can but said he was paying attention to his car, which had a tendency to overheat, rather than to the beer can.
When the Commonwealth is required to prove beyond a reasonable doubt that an accused possessed illicit drugs by establishing 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 [accused] 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) (citation omitted). Proof of constructive possession necessarily rests on circumstantial evidence; thus, " 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) (citation omitted). Proximity to drugs is a circumstance which may be probative in determining whether an accused possessed drugs, but proximity alone is insufficient to prove possession. See Brown v. Commonwealth, 15 Va.App. 1, 9, 421 S.E.2d 877, 882 (1992) ( en banc ). Likewise, ownership or occupancy of the vehicle in which drugs are found is a circumstance probative of possession but is ...