COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Huff, Judges Russell and AtLee Argued at Richmond, Virginia

DEJUAN LATEL ROY MEMORANDUM OPINION * BY v. Record No. 1403-15-2 J UDGE RICHARD Y. ATLEE, JR. MARCH 7, 2017 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF PRINCE GEORGE COUNTY Nathan C. Lee, Judge Matthew C. Stewart for appellant. Eugene Murphy, Senior Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.
Following a bench trial, a judge of the Circuit Court of Pr ince George County (“trial court”) convicted appellant Dejuan Latel Roy of possession of cocaine with intent to distribute and conspiracy to commit that crime. He recei ved a sentence of ten years in prison with all ten years suspended for the possession conviction, and forty years in prison with thirty-four years and eleven months suspended for the conspiracy convict ion. He raises two assignments of error on appeal: 1. The evidence was insufficient to show he actually or constructively possessed the cocaine. 2. There was insufficient evidence that he had entered a conspiracy because the Commonwealth failed to prove there was a ny agreement, either express or implied, between Roy and any other person to possess cocaine with intent to distribute it. For the reasons that follow, we agree with Roy’s arguments and reverse his convictions.

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.UNPUBLISHED- 2 - I. B ACKGROUND On May 3, 2014, an officer of the Prince George County Police Department was on patrol when he observed a Dodge Charger weavi ng through lanes of traffic at approximately 1:20 a.m. The officer stopped the vehicle and found Roy in the driver seat, Brando Carter in the front passenger seat, and Derrick Williams in the rear passenger seat. When the officer asked Roy for his identification and vehicle registrati on, Roy responded that his driver’s license was suspended, and informed the officer that the mother of his child had rented the vehicle and that neither he nor any of the other passengers were authorized drivers under the rental agreement. Because Roy appeared intoxicated, the offi cer had Roy perform field sobriety tests, which he failed. He arrested Roy for driving under the influence and fo r driving on a suspended license. The officer then asked Carter and Williams to step out of the vehicle so he “could inventory it for tow.” Once they complied, Rich ardson asked each for consent to search their persons, to which they both agreed. The offi cer found $3,792 in Williams’s pockets, folded by denomination. Williams gave inconsistent statements about the source of the cash, first stating he found it inside the vehi cle and later saying his gi rlfriend gave it to him. During the vehicle search, officers found th at the glove compartment contained a semi-automatic handgun and a bag containing a white powdery substance that was later confirmed to be 20.54 grams of cocaine. The cocai ne was packaged into four separate baggies. An expert testified at trial that the packag ing, the amount of cocaine , and the presence of a firearm were factors incons istent with personal use.
II. A NALYSIS “When examining a challenge to the sufficiency of the evidence, an appellate court must review the evidence in the light most favorable to the prevailing party at trial and consider any reasonable inferences from the facts prove d.” Thomas v. Commonwealth, 279 Va. 131, 155-56,- 3 - 688 S.E.2d 220, 234 (2010). “The judgment of the tria l court is presumed to be correct and will be reversed only upon a showing that it is ‘plainly wrong or without evidence to support it.” Id. at 156, 688 S.E.2d at 234 (quoting Viney v. Commonwealth, 269 Va. 296, 299, 609 S.E.2d 26, 28 (2005)). Here, the evidence, viewed in the light most favorable to the Co mmonwealth, established that three people were in a vehicle that was la wfully stopped. Roy was the driver. The glove compartment (which was “standard,” i.e. , opaque) contained a fi rearm and 20.54 grams of cocaine in four baggies. Williams, the car’s rear passenger, possessed over $3,700 in cash, divided and folded by denomination. For the foll owing reasons, we find the evidence of both possession and conspiracy insuffici ent and reverse the convictions.
A. Possession To establish possession of a controlled subs tance with intent to distribute, “the Commonwealth had to prove beyond a reasonable doubt that [Roy] was aw are of the presence and character of the drug and that he cons ciously possessed it.” Jo rdan v. Commonwealth, 273 Va. 639, 645, 643 S.E.2d 166, 170 (2007). Possession may be actual or constructive. Id. at 646, 643 S.E.2d at 170. “Constructive possession ma y be established by ‘evidence of acts, statements, or conduct of the accused or other fact s or circumstances which tend to show that the defendant was aware of both the presence and the character of the substance and that it was subject to his dominion and control.’” Logan v. Commonwealth, 19 Va. App. 437, 444, 452 S.E.2d 364, 368-69 (1994) (quoting Powers v. Commonwealth, 227 Va. 474, 476, 316 S.E.2d 739, 740 (1984)). Proximity to drugs may be probative in determining whether an accused possessed drugs, but proximity alone is insufficient to prove knowing possession. See Brown v. Commonwealth, 15 Va. App. 1, 9, 421 S.E.2d 877, 882 (1992) ( en banc ). Likewise, occupancy of the vehicle in- 4 - which drugs are found may be probative of posse ssion but is insufficient, standing alone, to establish knowing possession. Coward v. Commonwealth, 48 Va. App. 653, 658, 633 S.E.2d 752, 754 (2006) (“While ‘occupancy of a vehicle . . . where illicit drugs are found is a circumstance that may be considered together with other evidence tending to prove that the occupant . . . exercised dominion an d control over items in the vehicle’ it is ‘insufficient to prove knowing possession of drugs.’” (quoting Burc hette v. Commonwealt h, 15 Va. App. 432, 435, 425 S.E.2d 81, 83 (1992))). Here, the sole evidence connecting Roy to the contraband was that he was driving the vehicle that contained it. He did not own the vehicle nor was he authorized to drive it under the rental agreement. The record contains no statements from, or actions by, Roy or his co-defendants suggesting he was aware of the pr esence of the contraband. See Jordan, 273 Va. at 645, 643 S.E.2d at 170. Even viewing the evid ence in the light most favorable to the Commonwealth, we find it insufficient to prove knowing possession. Because the trial court was plainly wrong in finding Roy possessed the cocaine, we reverse that conviction.
B. Conspiracy To prove conspiracy, “the Co mmonwealth had to prove be yond a reasonable doubt that an agreement existed between the . . . men by so me concerted action to distribute the drugs.” Fortune v. Commonwealth, 12 Va. App. 643, 647, 406 S.E.2d 47, 48 (1991) (quoting Reed v. Commonwealth, 213 Va. 593, 594, 194 S.E.2d 746, 747 (1973)). Because most conspiracies are “clandestine in nature,” 2 Wayne R. LaFave, Substantive Criminal Law § 12.2(a), at 266 (2d ed. 2003), by “the very nature of the offens e, it often may be established only by indirect and circumstantial evidence,” Wright v. Commonwealth, 224 Va. 502, 505, 297 S.E.2d 711, 713 (1982). James v. Commonwealth, 53 Va. App. 671, 678, 674 S.E.2d 571, 575 (2009). “Thus, when ‘it has been shown that the defendants “by their acts pursued the same object , one performing one- 5 - part and the others performing another part . . . , the [fact finder] will be justified in concluding that they were engaged in a conspiracy . . . .” ’” Id. at 678, 674 S.E.2d at 575 (quoting Charity v. Commonwealth, 49 Va. App. 581, 586, 643 S.E.2d 503, 505 (2007)). “Without more, mere ‘proof of overt acts in themselves is not sufficient, for it must be established that the conspiracy or agreement which is charged to have existed . . . had been formed before and was existing at the time of the commission of [any] overt act or acts.’” Poole v. Commonwealth, 7 Va. App. 510, 513, 375 S.E.2d 371, 372-73 (1988) (quoting Harms v. United States, 272 F.2d 478, 482 (4th Cir. 1959)). Accordingly, “[a]bsent an ac tual agreement between two or more persons, a bilateral meeting of the minds, Virginia law pr ecludes a finding that a conspiracy exists.” Fortune, 12 Va. App. at 650, 406 S.E.2d at 50. In Charity, this Court affirmed the defendant ’s conviction of conspi racy to escape from prison despite the lack of any evidence of any conversation betw een the defendant and the other inmate. 49 Va. App. at 583, 643 S.E.2d at 504. Th is Court reasoned that a fact finder could reasonably conclude there was an agreement between the inmates be cause “[the] facts demonstrate[d] that the two men specifically focused their combined efforts on reaching and attempting to drive away in [a] truck, which was crucial to the success of their attempted escape.” Id. at 587, 643 S.E.2d at 505. Although there was no evidence of a conversation between the defendant and the ot her inmate, the truck they tr ied to drive away regularly delivered and picked up items from the jail ar ound the same time on most days, the defendant shoved the driver aside while th e other inmate climbed in and slid over to the passenger seat so that the defendant could climb into the driver’s seat, and the inmate s worked together to keep the driver’s side door closed agains t the officers’ and driver’s atte mpts to open the door and remove them from the truck. Id. at 586-87, 643 S.E.2d at 505. Thus this Court held “that sufficient evidence exists to find, as the trial court noted in denying the motion to strike, that the actions- 6 - described above were undertak en by the efforts of two men acting together to attain the ultimate goal of escaping from prison.” Id. at 587, 643 S.E.2d at 505 (emphasis added). By contrast, in this case, this Court finds that the evidence is not sufficient to find that a conspiracy existed between Roy and either or bo th of the other two occupants. Similar to Charity, there is no evidence of a conversation between Roy a nd the other occupants in the vehicle nor are there any statements made by any occupants from which to infer an agreement. But unlike Charity, the fact that two other men we re in the car with Roy is insufficient to find beyond a reasonable doubt that any of the occupants of the vehicle were “acti ng together to attain the ultimate goal” of distributing the cocaine in the closed glove compartment. See id. There was no scent, residue, or evidence of the cocaine on any of the occupa nts of the vehicle. There is no evidence of the order in which each person ente red the vehicle or how long each was in the vehicle. Further, there were no furtive moveme nts by the occupants or other overt actions that tended to prove they were working together to accomplish anything other than driving down the road at an early hour in the morning. The fact that Williams was carrying a large sum of money, or that Carter was sitting in front of the glove co mpartment, are not overt acts that tend to show that either of them was acting in concert with R oy to distribute cocaine. Similarly, the fact that Roy was driving the vehicle is not an overt act tending to show that he was acting in concert with either Williams or Carter. Although evidence of an agreement is generally circumstantial, “[s]uspicion is not enough; conjecture is not proof.” Stoots v. Commonwealth, 192 Va. 857, 865, 66 S.E.2d 866, 871 (1951). Without evidence of “an actual agreement between two or more persons . . . , Virginia law precl udes a finding that a conspiracy ex ists.” Fortune, 12 Va. App. at 650, 406 S.E.2d at 50. The record is devoid of any statements or actions to support a finding that there was an agreement between Roy and any other person to distribute cocai ne. For that reason, we reverse Roy’s cons piracy conviction.- 7 - III. C ONCLUSION Viewed in the light most favorable to the Commonwealth, the evidence fails to establish either that Roy possessed the cocain e or that he agreed to conspire with one or more individuals to distribute it. Accordingl y, we reverse Roy’s convictions and dismiss the indictments. Reversed and dismissed.