                      COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Felton and Senior Judge Hodges
Argued at Chesapeake, Virginia


QUENCY C. JORDAN, S/K/A
 QUENCY CORNELIUS JORDAN
                                        MEMORANDUM OPINION * BY
v.   Record No. 3084-01-1               JUDGE WILLIAM H. HODGES
                                            OCTOBER 8, 2002
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF THE CITY OF SUFFOLK
                    Westbrook J. Parker, Judge

          Timothy E. Miller, Public Defender, for
          appellant.

          Linwood T. Wells, Jr., Assistant Attorney
          General (Jerry W. Kilgore, Attorney General,
          on brief), for appellee.


     Quency Jordan (appellant) was convicted in a bench trial of

possession of cocaine, in violation of Code § 18.2-250.   The

sole issue raised on appeal is whether the evidence was

sufficient to establish that appellant constructively possessed

the cocaine.   Finding the evidence insufficient, we reverse.

                                I.

     When the sufficiency of the evidence is challenged on

appeal, we determine whether the evidence, viewed in the light

most favorable to the prevailing party, the Commonwealth, and

the reasonable inferences fairly deducible from that evidence


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
support each and every element of the charged offense.     See

Moore v. Commonwealth, 254 Va. 184, 186, 491 S.E.2d 739, 740

(1997).    "In so doing, we must discard the evidence of the

accused in conflict with that of the Commonwealth, and regard as

true all the credible evidence favorable to the Commonwealth and

all fair inferences that may be drawn therefrom."     Watkins v.

Commonwealth, 26 Va. App. 335, 349, 494 S.E.2d 859, 866 (1998).

"We will not reverse the judgment of the trial court, sitting as

the finder of fact in a bench trial, unless it is plainly wrong

or without evidence to support it."     Reynolds v. Commonwealth,

30 Va. App. 153, 163, 515 S.E.2d 808, 813 (1999) (citing Martin

v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418

(1987)).

     Viewed in this light, the evidence established that on

October 12, 2000, at approximately 5:20 p.m., Officer C.L.

Wheeler stopped a car driven by appellant based on information

that the driver did not have a valid license.    Appellant was the

sole occupant.   Wheeler arrested appellant for, inter alia,

driving after having been declared an habitual offender.    Before

towing the car from the scene, Wheeler conducted an inventory

search.

     "[R]ight at the floorboard of the driver's seat, on the

driver's side, right in front of the seat," Wheeler recovered "a

small brown pill bottle containing [an] off-white substance."

Upon closer inspection and based on his experience, the

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substance "appeared to be crack cocaine."   Wheeler provided the

following testimony regarding the vehicle appellant was driving:

           He stated that he had bought the vehicle
           from his sister. It was actually his
           sister's car. At first he had had it
           approximately a year. It was traded at J&J
           Auto and he had purchased it and it had not
           been properly registered.

Wheeler indicated the bottle was "sitting right down on the

right side in front of [the driver's] seat on the floorboard."

He testified that "[o]nce he opened the door [he] started

looking.   It was laying right there on the floor."     Wheeler also

stated that the bottle was not covered up by debris.

     On cross-examination, however, Wheeler acknowledged there

were "a couple other items" of debris on the floor."     He further

equivocated as evidenced by the following exchange:

           [DEFENSE COUNSEL]: And you stated that you
           found this pill bottle partially underneath
           the driver's seat?

           [WHEELER]: Well, it really wasn't under the
           driver's seat. If you look at your seat, it
           was just like sitting right at the front,
           but down on the floorboard.

           [DEFENSE COUNSEL]: Was it partially under
           the lip of the seat?

           [WHEELER]:   You probably could say so.

           [DEFENSE COUNSEL]:   And was there a floor
           mat there?

           [WHEELER]:   Yes, it was.

           [DEFENSE COUNSEL]: Was the pill bottle
           partially under the floor mat at all?



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             [WHEELER]: I don't recall it being under
             the floor mat.

             [DEFENSE COUNSEL]: I'm just going from what
             you told me at [the] preliminary hearing.

             [WHEELER]: Yeah, it was partially – it was
             right at the front of the floor mat, but at
             the rear of the floor mat in front of the
             seat.

     Wheeler indicated that the pill bottle had no name on it

and the car "came back [registered] to his sister, disposition

sold," and that appellant "failed to register the vehicle

properly."

     The trial court made the following findings:

             Well, it's no question he was driving the
             car. No question it was right at his feet.
             It would be one thing if it was hidden
             somewhere in the car, but it was right at
             his feet and it was visible to the officer.
             It was under his dominion and control. I'm
             going to find him guilty as charged . . . .

                                  II.

     To establish possession of a controlled substance, the

Commonwealth must prove that "'the defendant was aware of the

presence and character of the particular substance and was

intentionally and consciously in possession of it.'"       McNair v.

Commonwealth, 31 Va. App. 76, 85-86, 521 S.E.2d 303, 308 (1999)

(en banc) (quoting Gillis v. Commonwealth, 215 Va. 298, 301, 208

S.E.2d 768, 771 (1974)).    However, "[c]onstructive possession

may be proved through evidence demonstrating 'that the accused

was aware of both the presence and character of the substance



                                 - 4 -
and that it was subject to his or her dominion and control.'"

Id. at 86, 521 S.E.2d at 308 (quoting Wymer v. Commonwealth, 12

Va. App. 294, 300, 403 S.E.2d 702, 706 (1991)).    "Knowledge of

the presence and character of the controlled substance may be

shown by evidence of the acts, statements or conduct of the

accused."     Eckhart v. Commonwealth, 222 Va. 447, 450, 281 S.E.2d

853, 855 (1981).

     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) (en banc) (quoting Behrens v. Commonwealth, 3 Va. App.

131, 135, 348 S.E.2d 430, 432 (1986)).

     Proof by circumstantial evidence "'is not sufficient . . .

if it engenders only a suspicion or even a probability of guilt.

Conviction cannot rest upon conjecture.'"     Littlejohn v.

Commonwealth, 24 Va. App. 401, 414, 482 S.E.2d 853, 859 (1997)

(quoting Hyde v. Commonwealth, 217 Va. 950, 955, 234 S.E.2d 74,

78 (1977)).    "'"[A]ll necessary circumstances proved must be

consistent with guilt and inconsistent with innocence and

exclude every reasonable hypothesis of innocence."'"     Betancourt

                                 - 5 -
v. Commonwealth, 26 Va. App. 363, 373, 494 S.E.2d 873, 878

(1998) (quoting Stover v. Commonwealth, 222 Va. 618, 623, 283

S.E.2d 194, 196 (1981) (quoting Inge v. Commonwealth, 217 Va.

360, 366, 228 S.E.2d 563, 567 (1976))).

     Here, the Commonwealth failed to present any evidence of

"'"acts, statements, or conduct of the accused or other facts or

circumstances which tend to show that [appellant] was aware of

the presence and character"'" of the cocaine in the brown bottle

on the floorboard or that he knowingly and intentionally

possessed it.   McNair, 31 Va. App. at 86, 521 S.E.2d at 308

(quoting 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))).

     Appellant exhibited no suspicious conduct and made no

incriminating statements, and Wheeler recovered no drug-related

evidence from him.   Moreover, the Commonwealth presented no

evidence that the "off-white substance" described by Wheeler was

visible through the closed brown pill bottle, which was on the

floorboard, close to the edge of the driver's seat.   Appellant's

mere proximity to the cocaine found in a brown bottle on the

floorboard is not sufficient to prove that he possessed the

controlled substance.   See id.

     Viewed as a whole, the circumstantial factors are

suspicious, but they do not prove beyond a reasonable doubt that

appellant constructively possessed the cocaine found in the

                                  - 6 -
brown bottle on the floor of the car.   For the foregoing

reasons, we reverse the conviction and dismiss the indictment.

                                           Reversed and dismissed.




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