COURT OF APPEALS OF VIRGINIA
Present: Judges Elde r, Humphreys and Powell Argued at Richmond, Virginia

DERWOOD AMELIUS DAVIS MEMORANDUM OPINION * BY v. Record No. 2560-07-2 JUDGE CLEO E. POWELL FEBRUARY 10, 2009 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COUR T OF HENRICO COUNTY George F. Tidey, Judge Samuel P. Simpson, V (Montgomery & Simp son, on brief), for appellant. Leah A. Darron, Senior Assistant Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee.
Derwood Amelius Davis, appellant, was convicte d of possession of cocaine, in violation of Code § 18.2-250, following a bench tr ial. On appeal, he contends that the evidence is insufficient to convict. We agree and re verse his conviction.
I. BACKGROUND At approximately 11:45 p.m. on May 26, 2007, Officer Mack of the Henrico County Police Department responded to a call of a possibl e larceny at the home appellant shared with his wife, Lynn. Mrs. Davis told the officer that he r husband had stolen money from her and that he has a drug problem. She did not mention what kind of drugs her husband allegedly used. Mrs. Davis also showed Officer Mack a photograph of her husband. Officer Mack then went to a nearby area where narcotics ar e commonly sold and used. He spotted a man he believed to be Mr. Davis wa lking in a lit parking lot. Officer Mack pulled

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.- 2 - into the parking lot and approached the man. When he aske d the man if he was Derwood Davis, he responded that he was and put his hands in hi s front pockets. Officer Mack moved closer to Mr. Davis and asked him to remove his hands fro m his pockets. Instead, Mr. Davis turned away from Officer Mack and the other officer who had arrived to assist. When he turned away, his hands were still in his pockets. Officer Mack could not see Mr. Davis’s hands when he turned away from the officers. Within seconds, though, the officers grabbed both of Mr. Davis’s wrists, removed his hands from his pockets, and handcuffed him. The officers recovered $2,050 from Mr. Davis’ s left rear pocket and $50 from his front right pocket. Approximately five feet from where Mr. Davis turned around, Officer Mack found five individually wrapped bags that he suspect ed to contain crack cocaine and a small piece of radio antenna that he believed was used to sm oke the suspected crack cocaine. Though no one else was in the area at this tim e, Officer Mack agreed at tria l that he has found “at least the evidence of contraband all over” the parking lot. Officer Ma ck never saw Mr. Davis throw anything, nor did he hear anything hit the ground. Officer Mack observed Mr. Davis during the entire encounter.
II. ANALYSIS When the sufficiency of the evidence is challenged on appeal, we view the evidence and all inferences fairly deducible therefrom in the light most favorabl e to the Commonwealth. Wynn v. Commonwealth , 5 Va. App. 283, 286, 362 S.E.2d 193, 195 (1987). This Court will only reverse a judgment that is plainly wr ong or without evidence to support it. See Jay v. Commonwealth , 275 Va. 510, 524, 659 S.E.2d 311, 319 (2008) (citing Hedrick v. Commonwealth , 257 Va. 328, 340, 513 S.E.2d 634, 641 (1999)). To support a conviction based on constructive possession [of drugs], “the Commonwealth mu st point to evidence of acts, statements, or conduct of the accused or other facts or circumstances which tend to show that the defendant was aware of- 3 - 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) (quoting Powers v. Commonwealth , 227 Va. 474, 476, 316 S.E.2d 739, 740 (1984)). Virginia courts have repeatedly stated that “[s]uspicious circumstan ces, including proximity to a controlled drug, are insufficient to support a conviction.” Behrens v. Commonwealth , 3 Va. App. 131, 135, 348 S.E.2d 430, 433 (1986).
In Gordon v. Commonwealth , 212 Va. 298, 183 S.E.2d 735 (1972), the Supreme Court of Virginia held that the evidence was insufficient to prove constructive possession. There, a police detective saw the appellant step between two bushe s “‘and a concrete type fence and pulled out a brownish color manila envelope’” as th e detective drove past the appellant. Id. at 298-99, 183 S.E.2d at 736 (quoting transcript). When Gord on saw the police detective, he greeted the detective by name and walked off in the opposite direction from which he came. Id. at 299, 183 S.E.2d at 736. The detective made a u-turn to fo llow the appellant and when he saw that the detective did so, Gordon began running. Id. The detective then left his car and pursued the appellant on foot, during which the detective lost sight of hi m for three to four seconds. Id. When the detective next saw Gordon, he no longer carried the manila envelope. Id. A different police detective later found a manila envelope that contained illegal drugs in the area where the first detective lost sight of the appellant. Id. at 300, 183 S.E.2d at 737. The first detective said the recovered envelope was the same size, shap e, and color as the one he saw Gordon holding. Id. The Supreme Court of Virginia acknowledged that there are numerous cases where courts have affirmed convictions for possession of drugs where the evidence proved that the defendant was seen throwing or dropping an identifiable ob ject that was later di scovered to contain contraband. Id. The Court in Gordon , however, concluded that there was a break in the chain of evidence because “[n]o witness was produced who saw Gordon dispose of the manila envelope- 4 - which he carried. The envelope containing narco tics ‘works’ was found by [the police detective] on a grass plot separated only by a perforated wa ll from the public st reet on which numerous persons were gathered.” Id. at 300-01, 183 S.E.2d at 737. Th erefore, the C ourt reversed appellant’s conviction because th e evidence was insufficient to pr ove that he possessed illegal drugs. Id. at 301, 183 S.E.2d at 737. Earlier this year, the Supreme Court of Virginia reversed a conviction for possession of narcotics based on a theory of constructive possession. Maxwell v. Commonwealth , 275 Va. 437, 444, 657 S.E.2d 499, 503 (2008). In Maxwell , police officers were investigating the appellant about an unrelated matter. Id. at 440, 657 S.E.2d at 501. When the officer informed him that he needed to go to the police station for further questioning, Maxwell ran. Id. The police saw the appellant “walk out from behind several stacks of plywood located between the alley and a chain-link fence that enclosed [a] lumberyard.” Id. Officers arrested Maxwell and in a search incident to arrest found $450 but no smoking device. Id. A “drug-dog” later “alerted on” a lumber pallet. Id. The officer “‘reached in got . . . a plastic bag’” containing “‘eight individually wrapped off-white rock like substances’” that were la ter identified as crack cocaine. Id. at 440, 657 S.E.2d at 501-02 (quoting transcript ). A bag containing an additional twelve rocks of crack cocaine and a bag filled with marijuana were also found in the plywood. Id. at 441, 657 S.E.2d at 502. After the officers found th e suspected drugs, Maxwell changed from “‘talkative and cooperati ve’” to “‘less talka tive and distant[.]’” Id. at 440, 657 S.E.2d at 502 (quoting transcript). Employees at the lumberya rd had not seen anyone near the lumber stack though they were not watchi ng the lumber all day. Id. at 441, 657 S.E.2d at 502. The Supreme Court of Virginia held that “no rational trier of fact could have found the essential elements of the crime[s involved in the case] beyond a reasonable doubt.’” Id. at 443, 657 S.E.2d at 503 (quoting Jackson v. Virginia , 443 U.S. 307, 319 (1979)). The Cour t reasoned that the evidence- 5 - may create suspicion, but it is not “consistent with guilt and inconsistent with innocence and [does not] exclude every reasonable hypothesis of innocence.” See Garland [v. Commonwealth] , 225 Va. [182,] 184, 300 S.E.2d [783,] 784 [(1983)]. Nor does it constitute “evidence of acts, statements, or conduct . . . or other facts or circ umstances which tend to show that the defendant was aware of both th e presence and character of the substance[s] and that [they we re] subject to his dominion and control.” See Drew , 230 Va. at 473, 338 S.E.2d at 845. Id. In Mr. Davis’s case, the officers never sa w him make a throwing motion nor did they hear anything land on the ground. In fact, Officer Mack testified that Mr. Davis first put his hands into his pockets when the police encounter ed him and his hands remained in his pockets when he turned away from them. The officer s forcibly removed Mr. Davis’s hands from his pockets when they turned him around and handcuffed him. That the illegal drugs were found approximately five feet from where Mr. Davis was arrested is immaterial because “[m]ere proximity to a controlled drug is not suffici ent to establish domi nion and control.” Drew , 230 Va. at 473, 338 S.E.2d at 845 (citing Wright v. Commonwealth , 217 Va. 669, 670, 232 S.E.2d 733, 734 (1977); Fogg v. Commonwealth , 216 Va. 394, 395, 219 S.E.2d 672, 673 (1975)).
III. CONCLUSION Because the evidence in the light most fa vorable to the Commonwealth proved only that Mr. Davis was within mere proximity to the cocain e that Officer Mack foun d, we hold the evidence was insufficient to suppor t appellant’s felony conviction for pos session of cocaine, in violation of Code § 18.2-250. Therefore, we reverse Mr. Davis’s conviction and dismiss his indictment. Reversed and dismissed.