                                                                      COURT OF APPEALS OF VIRGINIA


              Present: Judges Beales, Chafin and O’Brien
UNPUBLISHED


              Argued at Norfolk, Virginia


              JOSEPH ANDRE MOORE
                                                                                           MEMORANDUM OPINION* BY
              v.            Record No. 2107-14-1                                            JUDGE TERESA M. CHAFIN
                                                                                               NOVEMBER 24, 2015
              COMMONWEALTH OF VIRGINIA


                                                FROM THE CIRCUIT COURT OF THE CITY OF SUFFOLK
                                                            Rodham T. Delk, Jr., Judge

                                           Jean Veness, Assistant Public Defender, for appellant.

                                           Christopher P. Schandevel, Assistant Attorney General (Mark R.
                                           Herring, Attorney General, on brief), for appellee.


                            At the conclusion of a bench trial held in the Circuit Court of the City of Suffolk, Joseph

              Andre Moore was convicted of felony possession of cocaine in violation of Code § 18.2-250 and

              misdemeanor possession of marijuana in violation of Code § 18.2-250.1.1 On appeal, Moore

              argues that that the evidence presented by the Commonwealth failed to establish that he

              constructively possessed the drugs. For the reasons that follow, we agree and reverse his

              convictions.




                                                                          
                            *
                                Pursuant to Code § 17.1-413, this opinion is not designated for publication.
                            1
                       The sentencing order for the felony offense contains an apparent scrivener’s error. The
              order states that Moore was convicted of possession of cocaine with the intent to distribute in
              violation of Code § 18.2-248, but the record clearly indicates that he was convicted of the
              lesser-included offense of simple possession.
                      Additionally, we note that Moore also pled guilty to petit larceny in violation of Code
              § 18.2-96. Moore’s petit larceny conviction is not the subject of this appeal.
                                       I. BACKGROUND

       “On appeal, ‘we review the evidence in the light most favorable to the Commonwealth,

granting to it all reasonable inferences fairly deducible therefrom.’” Archer v. Commonwealth,

26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997) (quoting Martin v. Commonwealth, 4 Va. App.

438, 443, 358 S.E.2d 415, 418 (1987)). So viewed, the evidence established that Moore and

Brandon Suggs visited a department store in Suffolk on February 22, 2013. Officer A. Patton of

the Suffolk Police Department was at the store that day, and he watched Moore and Suggs

through a closed-circuit surveillance system in the loss prevention office of the store.

       Patton observed Moore take items of clothing into a fitting room. When Moore came out

of the fitting room, Patton noticed that he was not holding any merchandise and that he appeared

to be wearing two pairs of shorts. Moore left the store without paying for any merchandise and

got into the passenger seat of a car. Suggs got into the driver’s seat of the car, and the two men

left the parking lot of the store. They were the only occupants of the vehicle.

       Patton left the store, got in his patrol vehicle, and followed the car driven by Suggs.

While Patton was following the vehicle, neither Suggs nor Moore made any movements towards

the floorboard or passenger seat of the car. Eventually, Patton stopped the car. After confirming

that Suggs’s sister was the registered owner of the car, Patton asked Suggs and Moore if they had

recently left the department store. They both responded affirmatively. Patton then asked Moore

if he had taken any items from the store without purchasing them. Moore again answered

affirmatively, retrieved a pair of shorts from the backseat of the car, handed them to Patton, and

apologized for taking the shorts from the store. Patton asked Moore to step out the car, and he

subsequently arrested him for petit larceny.

       Following Moore’s arrest, Suggs consented to Patton’s request to search the car. While

conducting the search, Patton found two large plastic bags under the passenger seat of the car
                                                -2-
where Moore had been sitting. One bag contained 15.9 grams (0.56 ounce) of a green leafy

substance that was later determined to be marijuana. The other bag held two or three smaller

plastic bags that each contained a white powdery substance that was later determined to be

cocaine. Collectively, the bags held 1.3 grams of cocaine. Neither Suggs nor Moore made any

movements toward the area where Patton found the drugs or otherwise attempted to distract him

or prevent him from looking under the passenger seat while he was searching the car.

       Moore was charged with possession of the drugs that Patton found beneath the passenger

seat of the car, and he testified in his own behalf at his trial. Moore testified that he had never

been in the car before February 22, 2013, and that he was “just getting a ride” on that day.

Furthermore, Moore testified that he did not know that the drugs were under the passenger seat.

While he admitted that he was a convicted felon and that he and Suggs had stolen merchandise

from the department store on the day in question, he expressly disclaimed any knowledge or

ownership of the drugs found under his seat.

       The circuit court did not believe Moore’s testimony. Noting Moore’s prior felony

convictions and his larcenous conduct at the department store, the circuit court concluded that

Moore was “not necessarily to be accorded . . . the benefit of truthfulness.” The circuit court

then inferred that Moore had taken off the shorts that he had stolen from the store in the car, and

from that inference, the circuit court concluded that Moore had engaged in furtive movements in

the car. Placing emphasis on the fact that the drugs were found in close proximity to Moore, the

circuit court convicted Moore of possessing the marijuana and cocaine found in the car. This

appeal followed.

                                          II. ANALYSIS

       Moore argues that the evidence presented by the Commonwealth was insufficient to

prove that he possessed the marijuana and cocaine found under his seat. When considering the
                                                 -3-
sufficiency of the evidence on appeal, 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); see also McGee v.

Commonwealth, 25 Va. App. 193, 197-98, 487 S.E.2d 259, 261 (1997) (en banc). Under this

standard, “a reviewing court does not ‘ask itself whether it believes that the evidence at the trial

established guilt beyond a reasonable doubt.’” Crowder v. Commonwealth, 41 Va. App. 658,

662, 588 S.E.2d 384, 387 (2003) (quoting Jackson v. Virginia, 443 U.S. 307, 318-19 (1979)). It

asks instead whether “any rational trier of fact could have found the essential elements of the

crime beyond a reasonable doubt.” Kelly v. Commonwealth, 41 Va. App. 250, 257, 584 S.E.2d

444, 447 (2003) (en banc) (quoting Jackson, 443 U.S. at 319). We do not “substitute our

judgment for that of the trier of fact” even if our opinion were to differ. Wactor v.

Commonwealth, 38 Va. App. 375, 380, 564 S.E.2d 160, 162 (2002).

       “[I]n drug cases no less than any other, it ‘is axiomatic that any fact that can be proved by

direct evidence may be proved by circumstantial evidence.’” Haskins v. Commonwealth, 44

Va. App. 1, 6, 602 S.E.2d 402, 404 (2004) (quoting Etherton v. Doe, 268 Va. 209, 212-13, 597

S.E.2d 87, 89 (2004)). When a conviction is based on circumstantial evidence, however, “all

necessary circumstances proved must be consistent with guilt and inconsistent with innocence

and exclude every reasonable hypothesis of innocence.” McMillan v. Commonwealth, 277 Va.

11, 19, 671 S.E.2d 396, 400 (2009) (quoting Garland v. Commonwealth, 225 Va. 182, 184, 300

S.E.2d 783, 784 (1983)). “[C]ircumstances of suspicion, no matter how grave or strong, are not

proof of guilt sufficient to support a verdict of guilty. The actual commission of the crime by the

accused must be shown by evidence beyond a reasonable doubt to sustain his [or her]

conviction.” Clodfelter v. Commonwealth, 218 Va. 619, 623, 238 S.E.2d 820, 822 (1977).



                                                -4-
       When we examine the evidence of the present case under our established standard of

review, we conclude that it was insufficient to support Moore’s convictions. While Moore was

in close proximity to the drugs found under his seat, the evidence did not establish that he was

aware of their presence.

       “In a prosecution for possession of a controlled substance, the Commonwealth must

produce evidence sufficient to support a conclusion beyond a reasonable doubt that the

defendant’s possession of the drug was knowing and intentional.” Ervin v. Commonwealth, 57

Va. App. 495, 504, 704 S.E.2d 135, 139 (2011) (en banc) (quoting Young v. Commonwealth,

275 Va. 587, 591, 659 S.E.2d 308, 310 (2008)). The possession of a controlled substance by an

individual may be either actual or constructive.

               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 [accused] was aware of both the presence and
               character of the substance and that it was subject to his [or her]
               dominion and control.”

Coward v. Commonwealth, 48 Va. App. 653, 657, 633 S.E.2d 752, 753 (2006) (quoting Drew v.

Commonwealth, 230 Va. 471, 473, 338 S.E.2d 844, 845 (1986)).

       An individual’s occupancy of a vehicle in which controlled substances are found is a

relevant circumstance that may be considered along with other evidence in determining whether

that individual constructively possessed controlled substances found in the vehicle. See, e.g.,

Burchette v. Commonwealth, 15 Va. App. 432, 435, 425 S.E.2d 81, 83 (1992). “Furthermore,

proof that a person is in close proximity to contraband is a relevant fact that, depending on the

circumstances, may tend to show that . . . the person necessarily knows of the presence, nature

and character of a substance that is found [close to them].” Id. Mere occupancy and proximity

standing alone, however, are insufficient to prove an individual’s guilty knowledge of


                                                -5-
contraband. See id.; see also Code §§ 18.2-250 and 18.2-250.1 (the ownership or occupancy of

the premises or vehicle upon or in which drugs are found does not create a presumption that an

owner or occupant either knowingly or intentionally possessed the drugs).

       In Coward, this Court determined that the evidence was insufficient to support an

appellant’s conviction of possession of cocaine under facts similar to those of the present case.

The appellant in Coward was the front seat passenger of a car driven by a friend. Coward, 48

Va. App. at 656, 633 S.E.2d at 753. The car was owned by the friend’s mother. Id. A police

officer stopped the car at night for an equipment violation, and he saw a clear plastic bag

containing a “hard white substance” sitting on top of the center console of the car when he

shined a flashlight through the driver’s window. Id. The substance in the bag was later

determined to be 0.991 gram of crack cocaine. Id. Neither the appellant nor his friend “made

any suspicious movements or tried to hide the cocaine as [the officer] approached the car.” Id.

       This Court reversed the appellant’s conviction, holding that the appellant’s “occupancy of

the car and his resulting proximity to the drugs . . . [were] insufficient by themselves to support

the conviction.” Id. at 658, 633 S.E.2d at 754. This Court emphasized that the appellant did not

attempt to hide the bag of cocaine as the officer approached the car or “exhibit any other signs of

guilty knowledge,” and explained that there was no evidence in the record indicating that the bag

of cocaine would have been visible to the appellant in the darkness of the unilluminated

passenger compartment of the car. Id. at 659-60, 633 S.E.2d at 754-55. In light of those

circumstances, this Court concluded that the Commonwealth had failed to establish any

additional facts beyond the appellant’s occupancy of the car and his proximity to the cocaine that

would have allowed the trial court to infer that the appellant was aware of the presence and

character of the drug. Id. at 659, 633 S.E.2d at 754; see also Jones v. Commonwealth, 17

Va. App. 572, 439 S.E.2d 863 (1994) (reaching the same conclusion based on similar facts).
                                                -6-
       In Ervin, police officers stopped a car for a traffic violation. Ervin, 57 Va. App. at 499,

704 S.E.2d at 137. The officers did not observe the appellant, the driver and sole occupant of the

vehicle, engage in any furtive movements either before or during the stop. Id. at 500, 704 S.E.2d

at 137. As the officers approached the car, however, they smelled a strong odor of marijuana.

Id. The appellant told the officers that the car belonged to someone else, and he did not attempt

to retrieve the registration of the vehicle when the officers asked him to do so. Id. The officers

arrested the appellant after they determined that his driver’s license was suspended, and they

found marijuana locked in the glove compartment of the car when they searched the vehicle

following the arrest. Id. The appellant was convicted of possession of marijuana with intent to

distribute. Id. at 501, 704 S.E.2d at 138.

       This Court affirmed the appellant’s conviction based on the totality of the circumstances,

id. at 506, 704 S.E.2d at 140, and assigned particular emphasis to the strong odor of marijuana in

the vehicle, reasoning that “[t]he strong and distinctive odor of the drug provided a significant

indication to anyone inside (or even near) the vehicle that marijuana was located within the

vehicle,” id. at 507, 704 S.E.2d at 141. This Court concluded that the trial court rejected the

appellant’s “equivocal and ultimately self-serving testimony that he would not recognize the

smell of marijuana” and that the trial court could interpret the appellant’s untruthful testimony as

affirmative evidence of his guilt. Id. at 516, 704 S.E.2d at 145. This Court also noted that the

appellant was in sole possession of the car when the marijuana was found, that he possessed the

key to the locked glove compartment where the marijuana was stored, and that he did not attempt

to retrieve the registration of the car from the glove compartment when the police asked for it.

See id. at 511-15, 704 S.E.2d at 142-45.

       In the present case, Moore was a passenger in a car that was owned and driven by another

individual. Furthermore, like the drugs in Coward and Ervin, the cocaine and marijuana in the
                                                -7-
present case were hidden from Moore’s view. The drugs were found underneath Moore’s seat,

and the record is devoid of any evidence suggesting that Moore could actually see the plastic

bags containing the substances. Officer Patton testified that neither Moore nor Suggs made any

movements towards the floor of the car or underneath Moore’s seat when he followed the car in

his patrol vehicle or when he actually searched the car. Moore also did not make any

incriminating statements linking himself to the drugs under his seat.

              Additionally, unlike in Ervin, the record here provides no evidence that the car contained

an odor of marijuana or an odor associated with the smoking of marijuana or cocaine that could

have alerted Moore to the presence of the drugs. Likewise, the record does not suggest that

either Moore or Suggs appeared to be under the influence of any drug. Due to the absence of any

drug odor or other behavior linking Moore to the drugs, the present case is more similar to

Coward than Ervin.

              Despite the similarity of the present case and Coward, the Commonwealth contends that

Moore engaged in conduct that sufficiently established his knowledge of the drugs found under

his seat. At trial, the Commonwealth argued that the circuit court could infer that Moore made

suspicious movements in the car when he took off the shorts that he stole from the department

store. The circuit court agreed with this contention, and concluded that the evidence implied that

Moore engaged in furtive movements. Additionally, the Commonwealth contends that Moore

attempted to distract Patton’s attention from the drugs under his seat when he admitted that he

had stolen the shorts from the department store and handed those shorts to the officer.2




                                                            
              2
         The circuit court did not expressly address this evidence when it convicted Moore of the
charged offenses or make a specific factual finding that Moore attempted to divert the officer’s
attention from the drugs in the car.
                                                               -8-
       Both of the Commonwealth’s arguments are misplaced. While the circuit court

concluded that Moore must have taken off the shorts that he stole from the store in the car and

made furtive movements as he did so, this conclusion was not supported by the evidence

presented at trial. At most, the circuit court could infer that Moore removed the stolen shorts

after he got in the vehicle. Even if Moore did so, however, no evidence in the record implied

that he engaged in any other movements, furtive or otherwise. Patton, the only witness that

observed Moore in the car, testified that he did not observe Moore make any movements in the

car as he followed the vehicle.

       Furthermore, assuming that Moore actually took off the stolen shorts while he was in the

car, the movements that he made when he did so could only have been deemed evasive or furtive

in relation to his petit larceny offense. Moore’s actions, if evasive or furtive at all, were linked to

the theft of the shorts and were not related to the drugs under his seat. Although Moore may

have removed the shorts to avoid being caught in physical possession of stolen merchandise, no

evidence in the record implied that he hid drugs under the seat of the car at the same time that he

took off the shorts. Moore retrieved the shorts from the backseat of the car, and the drugs were

found under the front passenger seat. While the circuit court may have inferred that Moore

removed the stolen shorts in the car, it could only speculate as to whether he placed the drugs in

question under the seat of the vehicle during that process -- or even as to whether he placed the

drugs under the seat at any other point during the time he was in the car.

       The Commonwealth cites Castaneda v. Commonwealth, 7 Va. App. 574, 376 S.E.2d 82

(1989) (en banc), to support its argument that Moore attempted to divert Patton’s attention from

the drugs in the car. In Castaneda, police officers suspected that an appellant was transporting

drugs through Virginia. Id. at 578, 376 S.E.2d at 84. When the officers stopped the car driven

by the appellant, the appellant immediately got out of the car, opened its trunk, and started
                                                 -9-
emptying the contents of a travel bag. Id. The appellant engaged in this course of conduct

without being asked to do so by the police. Id. A package containing two pounds of cocaine

was later found under a seat in the passenger compartment of the car. Id. This Court concluded

that the appellant’s actions could be inferred as an attempt to draw the police officers’ attention

away from the package in the car containing drugs and that such conduct demonstrated the

appellant’s knowledge of the location of the drugs. Id. at 583, 376 S.E.2d at 87.

       The present case is distinguished from Castaneda by the absence of any unsolicited,

unilateral action from Moore. Although Moore handed the shorts to Patton, he only did so after

the officer asked him whether he stole anything from the department store. Unlike the appellant

in Castaneda, Moore did not attempt to draw Patton’s attention away from the drugs in the car by

immediately leaving the vehicle or handing the shorts to him. Moore only handed the shorts to

Patton in response to his inquiry about the possible theft of merchandise.

       Moore’s actions could reasonably be construed under the circumstances of the present

case as an attempt to comply with Patton’s investigation of the shoplifting offense. As Moore

handed the shorts to Patton in response to his questions, his actions cannot be construed as an

effort to divert Patton’s attention away from the drugs or to imply that Moore knew that the

drugs were under his seat.

       We acknowledge that in the present case the circuit court expressly concluded that Moore

was not a credible witness. “The credibility of the witnesses and the weight accorded the

evidence are matters solely for the fact finder who has the opportunity to see and hear that

evidence as it is presented.” Elliott v. Commonwealth, 277 Va. 457, 462, 675 S.E.2d 178, 181

(2009). In deference to the circuit court’s credibility determination, we disregard Moore’s

testimony on appeal. Even when we do so, however, we cannot conclude that the

Commonwealth’s evidence supported Moore’s convictions.
                                               - 10 -
       As a “general principle of evidence law[,] . . . the factfinder is entitled to consider a

party’s dishonesty about a material fact as affirmative evidence of guilt.” Ervin, 57 Va. App. at

516, 704 S.E.2d at 145 (quoting Haskins, 44 Va. App. at 11 n.3, 602 S.E.2d at 407 n.3).

Accordingly, in constructive possession cases, a factfinder’s conclusion that an accused was

lying to conceal his or her guilt may provide additional evidence supporting the accused’s

conviction. See, e.g., id. at 515-17, 704 S.E.2d at 145-46. Generally, however, a conviction for

the constructive possession of contraband must be supported by significant evidence linking the

accused to the contraband beyond the accused’s prevarications concerning a material fact of the

case. See Cordon v. Commonwealth, 280 Va. 691, 698, 701 S.E.2d 803, 806 (2010) (reversing a

conviction of constructive possession of cocaine when the evidence did not sufficiently link the

appellant to the drug despite the trial court’s conclusion that appellant lied to conceal his guilt);

see also Rawls v. Commonwealth, 272 Va. 334, 350-51, 634 S.E.2d 697, 705 (2006); Lane v.

Commonwealth, 223 Va. 713, 716-17, 292 S.E.2d 358, 360 (1982); Ervin, 57 Va. App. at

520-21, 704 S.E.2d at 147-48 (each affirming constructive possession convictions based on

credibility determinations and additional evidence of guilt).

       While the circuit court concluded that Moore’s testimony was incredible, no considerable

evidence beyond Moore’s mere proximity to the drugs and his occupancy of the vehicle in which

they were found linked him to the contraband. Moore made no incriminating statements or

movements indicating that he was aware of the presence of the drugs under the seat. The drugs

were not in plain view, but rather were concealed from Moore’s sight under the seat of a car

owned by another person and driven by yet another person. Although the circuit court concluded

that Moore made furtive movements, this finding was not supported by the evidence in relation

to the drugs. Furthermore, the conduct that the Commonwealth contends constituted an attempt



                                                - 11 -
by Moore to divert Officer Patton’s attention from the drugs could reasonably be construed as an

attempt by Moore to comply with the officer’s larceny investigation.

       For these reasons, we conclude that the evidence was insufficient to support Moore’s

convictions. The evidence did not establish that he was aware of the drugs found underneath his

seat. Accordingly, under Coward and Cordon and other binding precedent, we must reverse and

dismiss Moore’s convictions.

                                                                        Reversed and dismissed.




                                             - 12 -
