                   COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Bray and Frank
Argued at Chesapeake, Virginia


ANGELO WILLIAMS
                                            MEMORANDUM OPINION * BY
v.   Record No. 0289-00-1                 JUDGE JAMES W. BENTON, JR.
                                                 JUNE 5, 2001
COMMONWEALTH OF VIRGINIA


       FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
                    Thomas S. Shadrick, Judge

          Sarah A. Mansberger, Assistant Public
          Defender (Melinda R. Glaubke, Senior
          Assistant Public Defender, on brief), for
          appellant.

          Donald E. Jeffrey, III, Assistant Attorney
          General (Mark L. Earley, Attorney General, on
          brief), for appellee.


     A jury convicted Angelo Williams of possession of cocaine

with the intent to distribute.   He contends the evidence was

insufficient to support the conviction.    He also contends the

trial judge erred by admitting in evidence marijuana found in the

container with the cocaine and an order proving a prior

conviction.   We hold that the evidence was insufficient to prove

constructive possession of the cocaine and reverse the conviction.




     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
                                 I.

     The evidence at trial proved that Virginia State Trooper

William S. Towles saw Angelo Williams driving alone at 4:30 p.m.

in a traffic lane designated for vehicles containing two or more

people.   Williams was also exceeding the posted speed limit.

After he stopped Williams for those infractions, he learned that

Williams's operator's license had been suspended and arrested

Williams.    In a search of the vehicle, which was registered to a

relative of Williams, Trooper Towles saw objects on the floor and

inspected "a Planter's nut can [located] underneath the driver's

seat."    Inside the can, he found a plastic bag containing three

smaller bags of crack cocaine.    Over Williams's objection, the

trial judge permitted Trooper Towles to testify that the can also

contained marijuana.

     When Trooper Towles later showed the can and its contents to

Williams, Williams denied knowledge of them and said it was not

his vehicle.   Trooper Towles searched Williams again and removed

from Williams's shirt pocket money totaling $600, which was in

denominations of "one $100 bill, twenty-two $20s, four $10s, and

four $5s."    In response to Trooper Towles's inquiries, Williams

told him the money was "for a bill" he had to pay for his aunt.

     A detective testified as an expert witness that the bags

found in the can contained numerous "portions of crack cocaine

. . . in, roughly, the . . . size [of a] $20 rock" and that the

fifteen grams of cocaine in the bags would have a value of $3,000.

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He also testified "that the typical dosage unit for a user of

crack cocaine would be a $20 rock" and that a user of crack

cocaine would usually possess or have close at hand a smoking

device.   He further testified that drug dealers often package

their money in the denominations taken from Williams.

     At the conclusion of the Commonwealth's case-in-chief, the

trial judge admitted in evidence, over Williams's objection, an

order reflecting Williams's previous conviction for possession of

cocaine with the intent to distribute.   Although the indictment

did not allege other offenses, the prosecutor offered the order as

evidence in the guilt phase of the trial because "the Commonwealth

[was] proceeding on [Code § 18.2-248(C)], the enhancement

provision."

     Following the Commonwealth's evidence, Williams's aunt

testified that the day Williams was arrested she had given him

"five hundred and eighty some dollars" to obtain money orders to

pay her rent and car payment.   She also testified that the vehicle

Williams was driving when he was arrested belonged to her niece.

     At the conclusion of the evidence, the jury convicted

Williams of possession of cocaine with the intent to distribute

"as charged in the indictment."   Following the penalty phase of

the trial, the jury recommended "punishment at fifteen (15) years

confinement and $3,000."




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                                II.

     "The Commonwealth had the burden to prove by evidence beyond

a reasonable doubt that [the accused] possessed the [cocaine] with

intent to distribute."   Dukes v. Commonwealth, 227 Va. 119, 123,

313 S.E.2d 382, 384 (1984).   When, as here, the conviction is

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 [accused]

was aware of both the presence and character of the [cocaine] and

that it was subject to his dominion and control."   Powers v.

Commonwealth, 227 Va. 474, 476, 316 S.E.2d 739, 740 (1984).

     In addition, when a conviction for constructive possession of

a controlled substance is based on circumstantial evidence, the

following principles apply:

          "[I]f the proof relied upon by the
          Commonwealth is wholly circumstantial, as it
          here is, then to establish guilt beyond a
          reasonable doubt all necessary circumstances
          proved must be consistent with guilt and
          inconsistent with innocence. They must
          overcome the presumption of innocence and
          exclude all reasonable conclusions
          inconsistent with that of guilt. To
          accomplish that, the chain of necessary
          circumstances must be unbroken and the
          evidence as a whole must satisfy the guarded
          judgment that both the corpus delicti and
          the criminal agency of the accused have been
          proved to the exclusion of any other
          rational hypothesis and to a moral
          certainty. . . ."

              But, circumstances of suspicion, no
          matter how grave or strong, are not proof of
          guilt sufficient to support a verdict of

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           guilty. The actual commission of the crime
           by the accused must be shown by evidence
           beyond a reasonable doubt to sustain his
           conviction.

Clodfelter v. Commonwealth, 218 Va. 619, 623, 238 S.E.2d 820,

822 (1977) (citation omitted).

     Equally well established is the principle that a person's

occupancy of a vehicle in which a controlled substance is found

raises no presumption that the person "either knowingly or

intentionally possessed [the] controlled substance."    Code

§ 18.2-250; Drew v. Commonwealth, 230 Va. 471, 473, 338 S.E.2d

844, 845 (1986).    Thus, we have held that "'[s]uspicious

circumstances, including proximity to a controlled drug, are

insufficient to support a conviction.'"    McNair v. Commonwealth,

31 Va. App. 76, 86, 521 S.E.2d 303, 308 (1999) (quoting Behrens

v. Commonwealth, 3 Va. App. 131, 135, 348 S.E.2d 430, 432

(1986)).   Simply put, the existence of evidence necessary to

prove elements of the offense "cannot be based upon surmise or

speculation."   Patterson v. Commonwealth, 215 Va. 698, 699, 213

S.E.2d 752, 753 (1975).

     The evidence favorable to the prosecution's case has three

basic components:   the presence of cocaine in the can underneath

the seat, Williams's possession of the money, and Williams's

nervous behavior.   The evidence also proved, however, that the

vehicle Williams was driving belonged to his relative.   The

trooper did not see Williams actually possess the can containing


                                 - 5 -
the controlled substances or engage in any conduct which

suggested he knew the can was in the vehicle.   No evidence

proved Williams had touched the can or its contents.    Moreover,

Williams made no statements tending to show he was aware of the

presence of the can or the controlled substances.   Indeed, he

denied knowing either was in the vehicle.   The evidence also

proved that the can containing the cocaine was under the seat

and not visible through ordinary observation.

     A person's proximity to a place where a controlled

substance is present is insufficient to support a conviction

where the evidence does not prove that the person intentionally

and knowingly possessed the controlled substance.     See

Clodfelter, 218 Va. at 623, 238 S.E.2d at 822 (holding that

evidence failed to prove the occupant of hotel room

intentionally and knowingly possessed drugs that were present in

his room but hidden from view); Scruggs v. Commonwealth, 19 Va.

App. 58, 61-63, 448 S.E.2d 663, 665-66 (1994) (holding that the

evidence failed to prove the vehicle's driver knew of the

presence of the drugs, which were hidden in a passenger seat);

Jones v. Commonwealth, 17 Va. App. 572, 574, 439 S.E.2d 863, 864

(1994) (holding that the passenger in car did not constructively

possess drugs where the evidence failed to prove either that he

saw drugs between seats or knew of drugs under the seat); Nelson

v. Commonwealth, 17 Va. App. 708, 711, 440 S.E.2d 627, 628-29

(1994) (holding that the occupant of a hotel room did not

                              - 6 -
constructively possess drugs found in the room where drugs were

not in plain view, no drugs were found on him, and evidence

failed to show how long he had been in room).   As in those

cases, the trier of fact was left to surmise whether Williams

might have been aware of the can and its contents, which were

under the seat and not readily visible.   See Jones, 17 Va. App.

at 574, 439 S.E.2d at 864 (noting that "the evidence also failed

to prove that [the accused] knew the can with cocaine . . . was

under the [vehicle's] seat where [he] sat").    Thus, the evidence

was insufficient to prove Williams constructively possessed the

cocaine because it did not prove he knowingly and intentionally

exercised dominion and control over the unseen items.    See

Powers, 227 Va. at 476, 316 S.E.2d at 740.

     Williams's nervousness when he was stopped for the traffic

infractions and the presence of money in Williams's pocket

folded in the various denominations are circumstances that

create suspicion but lend little probative value to the inquiry

whether Williams was aware of the presence of the cocaine in the

vehicle.   Although Williams became very nervous when Trooper

Towles stopped him and went to check his driving status, the

evidence also proved Williams was driving "on a suspended

operator's license."   Moreover, the money was not unexplained

and was not being carried in an area of pervasive drug activity.

Cf. Brown v. Commonwealth, 15 Va. App. 1, 9, 421 S.E.2d 877,

882-83 (1992).   "It is, of course, a truism of the criminal law

                               - 7 -
that evidence is not sufficient to support a conviction if it

engenders only a suspicion or even a probability of guilt."

Smith v. Commonwealth, 192 Va. 453, 461, 65 S.E.2d 528, 533

(1951).   The evidence in this record is not "wholly consistent

with guilt and wholly inconsistent with innocence."       Scruggs, 19

Va. App. at 61, 448 S.E.2d at 664.      "Conviction cannot rest upon

[surmise and] conjecture."    Smith, 192 Va. at 461, 65 S.E.2d at

533.    See also Hyde v. Commonwealth, 217 Va. 950, 955, 234

S.E.2d 74, 78 (1977).

       Viewed in its totality, the evidence in this record is

insufficient to prove beyond a reasonable doubt the elements of

the offense of which Williams was convicted.      Accordingly, we

reverse the judgment and dismiss the indictment.      Thus, we need

not address the two issues alleging inadmissible evidence.

                                        Reversed and dismissed.




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