COURT OF APPEALS OF VIRGINIA

Present: Judges Humphreys , O’Brien and AtLee Argued at Norfolk , Virginia

TROY JAMES HYPOLITE MEMORANDUM OPINION * BY v. Record No. 0692

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- 1 JUDGE MARY GRACE O’BRIEN JULY 16, 2019 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE

Frederick B. Lowe , Judge William Joshua Holder, Assistant Public Defender , for appellant. Lauren C. Campbell, Assistant Attorney General (Mark R. Herring, Attorney General , on brief) , for appellee.
Troy James Hypolite (“appellant”) was convicted in a bench trial of possess ing cocaine with
intent to distribute , in violation of Code § 18.2

- 248. On appeal, he asserts that the court erred in denying his motion to strike the charge “because there was no evidence that [he] kn e w of the presence, chara cter [,] and nature of the drug s .”
BACKGROUND
O n April 28, 2017, Officer Barret Ring of the Chesapeake Police Department stopped a car for disregarding a stop sig n. Two men were in the vehicle : the driver and a ppellant , who was in the passenger seat. The car was registered to a woman who was not present.
When Officer Ring approached the car, he saw appellant “ reaching to the right of his seat ”
near the door. He did no t see appellant’s hands, only his upper torso. Officer Ring spoke with appellant and noticed that he was exceedingly nervous.

* Pursuant to Code § 17.1

- 413, this opinion is not designated for publication. UNPUBLISHED- 2

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Officer Ring had appellant get out of the car . The officer saw a pill on the passenger seat , which was later deter mined to cont ain Oxyco done , a Schedule II controlled substance

. Appellant told the officer that he had a pres cription for the narcotic due to a previous injury. Officer N. King of the Chesapeake Police Department arrived to assist with the traffic stop. Officer King searched the vehi cle for a prescription or a prescription bottle for the Oxyco done. He found neither. As Officer King was searching, O fficer Ring saw a small bag of marijuana between the center console and the passenger seat. 1
Officer King also found a plastic sandwich bag “along the right side of the passenger’s seat and up under the seat.” He pulled the bag out and saw it was empty. He found another empty plas tic bag under the seat . T hen , in the same location , Officer King discovered a third plastic bag containing “several individually wrapped bag gies of suspected cocaine.” F orensic analysis
confirm ed that the seized substances were cocaine, and an expert witness testified that the amo unt and packaging of the drug s w ere inconsistent with per sonal use. A part from denying ownership , appellant made n o statement concerning the cocaine

. A t the conclusion of the Commonwealth’s case, appellant moved to strike the charges of
cocaine possession with intent to distribute and Oxycodone possession. The court denied his
motion. Testifying in his defense, appellant stated that his friend had picked him up “[ a ] bout an
hour ” before the traffic stop to go to the “o ceanfront for [b]each [w]eekend.” Appellant testified
that he did not look around the car when he got in; he si mply sat down. He denied knowing th at there was cocaine in the car and also denied that he had reached to the right, toward the area where
the cocaine was found. Appellant testified that a doctor had given him the Oxycodone prescript ion.
He acknowledged that he had a prior felony conviction.

1 Appellant was not charged with possession of the marijuana.- 3

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A ppellant renewed his motion to strike at the close of all the evidence

. Th e c ourt dismissed the Oxycodone charge, stating “I’m going t o take him at his word.

. . . [H]e probably did get it from some kind of a prescription.” However, the court found appellant guilty of possession of cocaine
with the intent to distribute.
DISCUSSION On appeal, we view the evidence, including “any reasonable and justified inferences t he
fact

- finder may have drawn from the facts proved,” in the light most favorable to the Commonwealth, the prevailing party at trial. Sullivan v. Commonwealth , 280 Va. 672, 676 (2010). The issue on appeal is “whether the record contains eviden ce from whi ch any ‘ rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. ’ ” Young v.
Commonwealth , 275 Va. 587, 591 (2008) (quoting Jackson v. Virginia , 443 U.S. 307, 319 (1979))

. Code § 18.2

- 248(A) makes it “unlawful for any person to manufacture, sell, give, distribute, or possess with intent to manufacture, sell , give or distr ibute a controlled substance or an imitation controlled substance.” To convict appellant of cocaine possession with intent to distribute, the
Commonwealth “ had to prove beyond a reasonable doubt that [appellant] was aware of the presence and character of the drug and that he consciously possessed it.” Jordan v. Commonwealth , 273 Va. 639, 645 (2007). Possession of a controlled substance may be actual or constructive. See Walton v.
Commonwealth , 255 Va. 422, 426 (1998). “Constructive possession may be established when there

are ‘ acts, statements, or conduct of the accused or other facts or circumstanc es 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. ’ ” Id. (alteration in original) (quoting Drew v. Commonwealth , 230 Va. 471, 473 (1986)). “Proof of constructive possession necessarily rests on circumstantial evidence; thus, ‘all necessary circumstances proved must be consistent with guilt and inconsistent- 4

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with innocence and exclude every reasonable hypothesis of innocence.’” Burchette v.
Commonwealth , 15 Va. App. 432, 434 (1992 ) (quoting Garland v. Commonwealth , 225 Va. 182, 184 (1983) )

. The Commonwealth contend s that because Officer Ring saw appellant leaning toward the right side of the car and the cocaine was found under the passenger seat where he was sitting , it was reasonable for the court to conclude that appellant was concealing the drugs as the officer approach ed the car. However, despite our deferential standard of review, we must reverse appellant’s conviction for possession of coc aine with the intent to distribute

. The Commonwealth’s evidence of knowing possession of a co ntrolled substance consist ed
of testimony concerning appellant’s movement as the officer approached, appellant’s proximity to the drugs found unde rneath his seat , and his nervous demeanor . While these circumstances may give rise to a suspici on of guilt , they are insufficient to establish b eyond a reasonable doubt that appellant knowingly and intentionally possessed cocaine. See Cordon v. Commonwealth , 280 Va.
691 , 696 (2010) ( reversing conviction for cocaine possession where “the circumstantial e vidence

. . . may be sufficient to raise a suspicion of guilt , [but] cannot support a conclusion beyond a
reasonable doubt ” )

. Although a controlled substance may be within a defendant’s reach , “ mere proximity to an illicit drug

. . . is not sufficient to prove possession.” Walton , 255 Va. at 42 6. The Commonwealth
also must prove that the defendant knew the drug was there. See Coward v. Commonwealth , 48
Va. App. 653 , 656, 659

- 60 (2006) (reversing a passenger ’s conviction for cocaine possession based

on his proximity to drugs found on t he center console of a car stopped for a traffic violation at night , when a police officer illuminated the interior of the car for a “quick scan”). Absent evidence showing that an occupant of a vehicle where drugs were found was aware of the ir presence and- 5

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character , a conviction for drug possession must be reversed. See Jones v. Commonwealth , 17
Va. App. 572, 574 (1994).
I n Jones , a police officer received a complaint that two men were sitting in a car , smoking
cocaine out of a can. Id. at 573. When the officer approached the car, he saw approximately five small rocks of cocaine on a tray between the driver’s seat and the passenger seat where the defendant was sitting

. Id. A soda can which had been “altered to be used for smok ing crack cocaine” was locat ed under the passenger seat

. Id. Cocaine residue was found on the can. Id. Despi te the fact that cocaine was in plain view and the modified soda can was beneath the defendant’s passenger seat, w e concluded the evidence was insufficient to establish th at th e defendant knowingly and intentionally possessed cocaine :

No evidence established how long Jones had been in the automobile or that Jones was the person in the automobile when the police received the report. Likewise, no evidence proved that Jones saw the small pieces of cocaine among the other items on the accessory tray o n the console or that he recognized the items to be cocaine. The evidence also failed to prove that Jones knew the can with cocaine residue was under the seat where Jones sat.
Id. at 574. Reversing the conviction, we stated , “ E vidence merely that the ac cused was in the proximity of controlled substances is insufficient

. . . to prove that the accused was aware of the presence and character of a controlled substance.” Id. Here, although appellant testified that he had been in the car for about an hour, no evidence
showed that h e was “aware of both the presence and character ” of the cocaine or that it was “ subject
to his dominion and control .” Walton , 255 Va. at 426. The car did not belong to appellant or the driver; it was registered to another person who was not present. T he cocaine was found underneath the passenger seat where appellant was sitting , located in a plastic bag behind two other plastic bags. Appellant disavowed knowledge of the cocaine but conceded possession of the Oxycodone pill
found on his seat. Although Officer Ring testified that he noticed appellant leaning to the right as he- 6

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approached the vehicle , he could only see appellant’s torso, not his hands. While these circumstances may raise a suspicion of guilt, they were insufficient to prove knowing and intentional possession beyond a reasonable doubt. See Cordon , 280 Va. at 696. Further, we disagree with the Commonwealth’s argument that appellant’s nervousness during the police encounter was circumstantial evidence of constructive possession. The Commonwealth failed to exclude a reasonable hypothesis of innocence r elated to this circumstantial
evidence

. See Burchette , 15 Va. App. at 432. No evidence linked appellant’s nervousness to an
awareness of cocaine beneat h the passenger seat. There was no evidence that his nervousness was not due to his possession of a Schedule II controlled substance without being able to produce the prescription for the police officers. Considering all of the circumstances, we conclude the Commonwealth failed to prove that appellant knowingly and intentionally possessed cocaine, but merely established that he was in close proximity to the drug. Therefore, the evidence was insufficient to prove possession with
intent to distribute under Code § 18.2

- 248, and we reverse his conviction.
Reversed and dismissed

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