COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bray and Senior Judge Baker
Argued at Richmond, Virginia
DELNOR JOSE BANKS
MEMORANDUM OPINION * BY
v. Record No. 1405-98-2 JUDGE LARRY G. ELDER
APRIL 27, 1999
COMMONWEALTH OF VIRGINIA
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.
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.
I.
FACTS
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
*Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
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
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attention to his car, which had a tendency to overheat, rather
than to the beer can.
II.
ANALYSIS
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 insufficient,
standing alone, to establish possession. See Drew, 230 Va. at
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473, 338 S.E.2d at 845 (citing Code § 18.2-250). Thus, in
resolving this issue, the Court must consider “the totality of
the circumstances disclosed by the evidence.” Womack v.
Commonwealth, 220 Va. 5, 8, 255 S.E.2d 351, 353 (1979).
Viewing the evidence in the light most favorable to the
Commonwealth and according it all reasonable inferences fairly
deducible therefrom, as we must on appeal, see Garland, 225 Va.
at 184, 300 S.E.2d at 784, we find that the evidence was
insufficient, as a matter of law, to prove that appellant
possessed or knowingly exercised dominion and control over the
cocaine found in the glove box of the vehicle. The evidence
proved only that appellant occupied the vehicle and was in
proximity to the cocaine. Appellant engaged in no furtive
behavior and made no statements tending to show he was aware
that cocaine was present anywhere in the car. See Scruggs v.
Commonwealth, 19 Va. App. 58, 61, 448 S.E.2d 663, 665 (1994)
(“reject[ing] . . . argument that [accused] must have possessed
the cocaine because it was hidden in his automobile,” secreted
in a tear in the upholstery). Therefore, although highly
suspicious, the evidence does not exclude the reasonable
hypothesis that appellant’s passenger or appellant’s wife placed
the cocaine in the glove box and that appellant was unaware of
its presence. See id. at 61-62, 448 S.E.2d at 665.
The prosecutor argued to the trial court that cocaine was
being used in the car and that the beer can from which Deputy
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Bradley saw smoke emanating was the device being used to smoke
the cocaine. However, no evidence in the record permitted the
trial court to draw such inferences, for no evidence indicated
that cans may be used to smoke cocaine or that cocaine residue
was on the can Deputy Bradley found beneath the seat of
appellant’s car. The only indication given at trial that the
beer can was being used to smoke cocaine came from a question
the prosecutor posed to appellant on cross-examination. The
prosecutor’s question assumed a fact--that it was “cocaine that
was smoking from the beer can . . . under the seat”--not
established by the evidence, and, of course, the prosecutor’s
statement itself was not evidence in the case. Therefore, even
assuming the evidence established that appellant was aware of
the smoking can in the car, no evidence in the record linked
that smoking can to the cocaine found in the glove box.
In addition, the evidence did not establish whether
appellant was aware of the presence and character of the razor
blade and unidentified white residue in the ashtray or whether
the razor blade was visible to him. See Jones v. Commonwealth,
17 Va. App. 572, 574, 439 S.E.2d 863, 864 (1994) (noting absence
of evidence to prove passenger accused of possessing cocaine saw
small pieces of cocaine on car’s console or that he recognized
items as cocaine).
Although the trial court was entitled to conclude that
appellant was lying to conceal his guilt and to reject his
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testimony on that basis, see, e.g., Pugliese v. Commonwealth, 16
Va. App. 82, 92, 428 S.E.2d 16, 24 (1993), this rejection did
not constitute affirmative evidence of appellant’s guilt. The
Commonwealth was still required to offer affirmative evidence
that proved appellant was aware of the presence and character of
the cocaine and that excluded all reasonable hypotheses of
innocence. Although the circumstances were highly suspicious,
they were insufficient to prove appellant’s guilt beyond a
reasonable doubt. See Burchette v. Commonwealth, 15 Va. App.
432, 439, 425 S.E.2d 81, 86 (1992).
For these reasons, we hold the circumstantial evidence was
insufficient to exclude all reasonable hypotheses of innocence,
and we reverse appellant’s conviction.
Reversed.
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