COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, Petty and Senior Judge Bumgardner
Argued at Richmond, Virginia
KENDELL LEON COWARD
OPINION BY
v. Record No. 1743-05-2 JUDGE WILLIAM G. PETTY
AUGUST 22, 2006
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF HENRICO COUNTY
Catherine C. Hammond, Judge
Ryan T. McDougle for appellant.
Kathleen B. Martin, Senior Assistant Attorney General (Robert F.
McDonnell, Attorney General, on brief), for appellee.
The trial judge convicted appellant, Kendell L. Coward, of possession of cocaine in
violation of Code § 18.2-250. On appeal, Coward contends that the evidence adduced at trial
was insufficient to prove beyond a reasonable doubt that he knowingly and intentionally
possessed cocaine. For the reasons stated below, we agree and reverse the judgment of the trial
court.
I. BACKGROUND
On appeal, we view the evidence in the light most favorable to the Commonwealth,
granting to it all reasonable inferences fairly deducible therefrom. Higginbotham v.
Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975). So viewed, the evidence
establishes the following:
Around 3:25 the morning of April 24, 2004, Officer T.B. Badcock stopped a 1997 Toyota
because its rear license plate was not illuminated. Tyreace White was driving the car, and
Coward was in the front passenger seat.1 As Officer Badcock approached the car, he directed the
high beams and the spotlight on his police car toward the Toyota. He also used his flashlight to
illuminate the interior of the car. When the officer arrived at the driver’s side window, he made
a “quick scan” of the vehicle for weapons and noticed a “hard white substance inside a . . . clear
plastic baggie” sitting on the console in between the driver’s and passenger’s seats. He believed
the substance was crack cocaine based on his “training and experience” as a police officer. The
Division of Forensic Science subsequently analyzed the substance and determined it to be 0.991
gram of crack cocaine.
Officer Badcock testified that neither White nor Coward made any suspicious movements
or tried to hide the cocaine as he approached the car. The officer then directed White and
Coward to step out of the vehicle, and interviewed them separately. White told the officer that
the car belonged to his mother and that he had been using the car all evening. White stated no
one else had driven or been inside the vehicle. The officer did not testify as to any statements
made by Coward.
II. ANALYSIS
A. Standard of Review
When considering the sufficiency of the evidence presented below, we “presume the
judgment of the trial court to be correct” and reverse only if the trial court’s decision is “plainly
wrong or without evidence to support it.” Davis v. Commonwealth, 39 Va. App. 96, 99, 570
S.E.2d 875, 876-77 (2002). We do not “substitute our judgment for that of the trier of fact.”
Wactor v. Commonwealth, 38 Va. App. 375, 380, 564 S.E.2d 160, 162 (2002). “Instead, the
relevant question is whether, after viewing the evidence in the light most favorable to the
1
White was tried jointly with Coward and found guilty of possession of cocaine. White
petitioned for an appeal of his conviction to this Court, Record No. 0327-06-2; his petition was
denied.
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prosecution, any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). “This familiar
standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the
testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate
facts.” Id.
B. Constructive Possession
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.’” Drew v. Commonwealth, 230
Va. 471, 473, 338 S.E.2d 844, 845 (1986) (quoting Powers v. Commonwealth, 227 Va. 474, 476,
316 S.E.2d 739, 740 (1984)). Possession does not have to be exclusive. Ritter v.
Commonwealth, 210 Va. 732, 741, 173 S.E.2d 799, 806 (1970). While proximity to a controlled
substance is a factor that may be considered in determining whether an accused possessed drugs,
it is insufficient alone to establish possession. Castaneda v. Commonwealth, 7 Va. App. 574,
583, 376 S.E.2d 82, 87 (1989). Furthermore, Code § 18.2-250(A) provides, “Upon the
prosecution of a person for a violation of this section, ownership or occupancy of premises or
vehicle upon or in which a controlled substance was found shall not create a presumption that
such person either knowingly or intentionally possessed such controlled substance.”
C. Discussion
While we are mindful of the standard of review in this case, we must reverse Coward’s
conviction for possession of cocaine.
In her ruling, the trial judge premised her finding of possession on Coward’s occupancy
of the car and his resulting proximity to the drugs:
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Proximity to the drugs is insufficient to establish possession, but
occupancy of the car is a factor that can be considered. And I
think the inference [that] would have to be drawn is that the
location of the driver and the fact that they were the only ones
there and [the driver] said he had had the car all evening is
sufficient to support the knowledge element of the offense.
Indeed, this is the only fact established in this case that could raise an inference of Coward’s
knowledge of the cocaine.
Coward’s occupancy of the car and his resulting proximity to the drugs under the facts of
this case are insufficient by themselves to support the conviction. While “occupancy of a vehicle
. . . where illicit drugs are found is a circumstance that may be considered together with other
evidence tending to prove that the occupant . . . exercised dominion and control over items in the
vehicle” it is “insufficient to prove knowing possession of drugs.” Burchette v. Commonwealth,
15 Va. App. 432, 435, 425 S.E.2d 81, 83 (1992) (emphasis added); see also Code § 18.2-250
(stating that occupancy in a vehicle in which a controlled substance is found does not give rise to
a presumption of knowing or intentional possession). Rather, as in any other constructive
possession case, the occupant of an automobile “must be shown to have exercised dominion and
control over the premises and to have known of the presence, nature, and character of the
contraband at the time of such . . . occupancy.” Burchette, 15 Va. App. at 435, 425 S.E.2d at 84.
This case is similar to our decision in Jones v. Commonwealth, 17 Va. App. 572, 439
S.E.2d 863 (1994). There, a police officer, acting on a citizen complaint that occupants of a
parked automobile were smoking crack cocaine, approached the parked automobile in which
Jones was a passenger. Id. at 573, 439 S.E.2d at 863. The officer observed a small tray
containing, among other objects, five small rocks of crack cocaine situated between the driver’s
and passenger’s seats. Id. The officer also found a soda can that had been altered to be used for
smoking crack cocaine underneath the passenger seat of the automobile. Id. at 573, 439 S.E.2d
at 864.
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We reversed Jones’ conviction of possession of cocaine on those facts since the
Commonwealth did not establish facts tending to show or allowing the trial court to reasonably
infer that Jones was aware of the presence and character of the cocaine. Id. at 574, 439 S.E.2d at
864. Specifically, the Commonwealth did not show the length of time Jones had been in the
automobile; that Jones had been the person in the automobile referred to in the citizen report; that
Jones saw the small pieces of cocaine on the tray; that Jones recognized the substance as cocaine;
or that he knew about the converted soda can underneath the passenger seat. Id.
The Commonwealth relies on Brown v. Commonwealth, 5 Va. App. 489, 364 S.E.2d 773
(1988), arguing that this Court found the fact that Brown was “within arm’s reach” of the drugs
was dispositive. While Brown’s proximity to the cocaine was a factor in that case, this Court
relied on other circumstances as well. Id. at 491, 364 S.E.2d at 774. Importantly, Brown
admitted prior cocaine use at trial, thus establishing that he was familiar with the appearance of
cocaine. Id. at 492, 364 S.E.2d at 774. Based on his admission and the fact that police found
two pounds of cocaine, a mirror with cocaine on it, and drug paraphernalia on the bed next to
where the defendant was sitting, this Court found the trial court could infer that Brown was
aware of the presence and the character of the cocaine. None of these facts are present in this
case.
Here, as in Jones, the Commonwealth did not meet its burden of proof beyond a
reasonable doubt. While the Commonwealth did establish the fact of Coward’s occupancy of the
car and proximity to the cocaine, it did not establish any other facts or circumstances necessary
to draw the legal conclusion that Coward was aware of the presence and character of the cocaine.
Coward did not attempt to hide the baggie containing the cocaine as the officer approached the
car nor did he exhibit any other signs of guilty knowledge. There was no evidence regarding
how long Coward had been in the car. And significantly, while Officer Badcock was able to see
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the baggie with illumination from his high beam headlights, spotlight, and flashlight, there was
no evidence that the baggie would have been visible in the darkness of the passenger
compartment without such additional lighting.
III. CONCLUSION
The evidence that was adduced at trial does not establish that Coward had knowledge of
the presence or the character of the substance situated on the console. The evidence here proves
mere proximity to a controlled substance and nothing more. Thus, we reverse the judgment of
the trial court.
Reversed.
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