                    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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