Tuesday 3rd 

 December, 2002. 

Christopher Cain, s/k/a 

 Christopher T. Cain, Appellant, 

 against Record No. 2879-00-1 

 Circuit Court Nos. 43952-00 through 43954-00 

Commonwealth of Virginia, Appellee. 

Upon a Rehearing En Banc

Before Chief Judge Fitzpatrick, Judges Benton, Elder, 

Annunziata, Bumgardner, Frank, Humphreys, Clements, Agee, Felton 

and Kelsey 

 Paul E. Turner, Jr., for appellant. 

 Eugene Murphy, Assistant Attorney 

General (Jerry W. Kilgore, Attorney 

General, on brief), for appellee. 

By memorandum opinion dated July 16, 2002, a divided 

panel of this Court affirmed the judgment of the trial court. 

We stayed the mandate of that decision and granted rehearing en

banc. 

 Upon rehearing en banc, it is ordered that the stay of 

this Court's July 16, 2002 mandate is lifted, and the judgment 

of the trial court is affirmed for the reasons set forth in the 

panel majority. 

Chief Judge Fitzpatrick and Judge Benton dissent for 

the reasons set forth in the dissenting opinion of the panel. 
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It is ordered that the trial court allow counsel for 

the appellant an additional fee of $200 for services rendered 

the appellant on the rehearing portion of this appeal, in 

addition to counsel's costs and necessary direct out-of-pocket 

expenses. This amount shall be added to the costs due the 

Commonwealth in the July 16, 2002 mandate. 

This order shall be certified to the trial court. 

 A Copy, 

 Teste: 

 Cynthia L. McCoy, Clerk 

 By: 

 

 Deputy Clerk 
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COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judge Annunziata and 

 Senior Judge Overton 

Argued at Chesapeake, Virginia 

 

CHRISTOPHER CAIN, s/k/a 

 CHRISTOPHER T. CAIN 

 MEMORANDUM OPINION* BY 

v. Record No. 2879-00-1 JUDGE NELSON T. OVERTON 

 JULY 16, 2002 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS 

Robert W. Curran, Judge 

 Paul E. Turner, Jr., for appellant. 

 Eugene Murphy, Assistant Attorney General 

(Jerry W. Kilgore, Attorney General, on 

brief), for appellee. 

 Christopher T. Cain appeals his bench trial convictions for 

possession of cocaine, heroin and marijuana with the intent to 

distribute. He argues the evidence is insufficient to support 

his convictions. He contends the Commonwealth failed to 

establish he possessed the drugs in question. For the reasons 

that follow, we disagree and affirm his convictions. 

BACKGROUND

 "On appeal, 'we review the evidence in the light most 

favorable to the Commonwealth, granting to it all reasonable 

 

* Pursuant to Code § 17.1-413, this opinion is not 

designated for publication.
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inferences fairly deducible therefrom.'" Archer v. 

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

(citation omitted). 

 So viewed, the evidence proved that Officer R. Davis 

observed a taxi cab improperly stop in the roadway. Davis began 

following the cab and prior to pulling it over, he saw Cain, the 

only back seat passenger, lean over to the left. When Davis 

stopped the car he noted that Cain was sitting on the passenger 

side of the back seat. He also observed a black knit hat on the 

driver's side rear floorboard that appeared to have something 

inside it. Davis testified the hat was in the same area in 

which Cain had just been leaning. Davis also noted that Cain 

appeared unusually nervous. Davis arrested the driver of the 

cab for carrying a concealed weapon and arrested the front seat 

passenger on an outstanding warrant. 

 After the arrests, Officer Richardson retrieved the black 

hat and discovered cocaine, heroin and marijuana inside it. The 

officers searched Cain incident to his arrest and found $491.00, 

in small denominations, in his pockets. Cain provided the 

officers with inconsistent explanations for the source of the 

large amount of cash. Cain first stated the money belonged to 

his girlfriend and later explained the money was his mother's. 

The officers found no smoking devices or other drug 

paraphernalia in the car. 
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ANALYSIS

 "The Commonwealth may prove possession of a controlled 

substance by showing either actual or constructive possession." 

Barlow v. Commonwealth, 26 Va. App. 421, 429, 494 S.E.2d 901, 

904 (1998). 

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 

defendant was aware of 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) (citation omitted). "The Commonwealth is not required to 

prove that there is no possibility that someone else may have 

planted, discarded, abandoned or placed drugs . . . ." Brown v. 

Commonwealth, 15 Va. App. 1, 10, 421 S.E.2d 877, 883 (1992) 

(en banc). Davis testified that he saw Cain lean over towards 

the area where he later saw the drug-filled hat. Cain was the 

only passenger in the back seat and was in close proximity to 

the drugs. "While proximity to a controlled substance is 

insufficient alone to establish possession, it is a factor to 

consider when determining whether the accused constructively 

possessed the drugs." Id. at 9, 421 S.E.2d at 882. 

 Cain appeared extremely nervous when Davis shone his 

flashlight in the back seat and expressed a need to exit the car 

as Davis returned to his cruiser to obtain results from his DMV 
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inquiry. Additionally, Cain was carrying a large amount of cash 

in small bills and provided the officers with inconsistent 

explanations for his possession of the money. See Hetmeyer v. 

Commonwealth, 19 Va. App. 103, 111-12, 448 S.E.2d 894, 899-900 

(1994) (noting that defendant's possession of a large sum of 

money in a hotel room where drugs were found was a factor in 

determining whether defendant constructively possessed the drugs 

with intent to distribute). 

 "[I]n resolving this issue, the Court must consider 'the 

totality of the circumstances disclosed by the evidence.'" 

Spivey v. Commonwealth, 23 Va. App. 715, 725, 479 S.E.2d 543, 

548 (1997) (citation omitted). Davis observed Cain leaning 

towards the very area where he later saw the hat. Cain was the 

only person in the back seat of the car where the drugs were 

found and was in close proximity to them. He acted nervous and 

was anxious to get out of the car and provided the officers with 

inconsistent statements regarding the large sum of money on his 

person. The Commonwealth's evidence was competent, was not 

inherently incredible, and was sufficient to prove beyond a 

reasonable doubt that Cain possessed the drugs the officers 

found in the hat. 

 Accordingly, we affirm the decision of the trial court. 

 Affirmed.
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Fitzpatrick, C.J., dissenting. 

 I respectfully dissent from the majority opinion, which 

holds that sufficient evidence proved that appellant possessed 

cocaine, heroin and marijuana. 

 It is well established that "occupancy of [an automobile] 

where [a] drug is found does not create a presumption of 

possession." Walton v. Commonwealth, 255 Va. 422, 426, 497 

S.E.2d 869, 872 (1998) (citing Code § 18.2-250.1(A) and Garland 

v. Commonwealth, 225 Va. 182, 184, 300 S.E.2d 783, 784 (1983)). 

See also Crisman v. Commonwealth, 197 Va. 17, 87 S.E.2d 796 

(1955), and Hancock v. Commonwealth, 21 Va. App. 466, 465 S.E.2d 

138 (1995). 

 The majority finds the evidence sufficient to establish 

that appellant, a passenger in a cab, possessed drugs found 

under a hat on the back floor board. They base this decision on 

appellant's nervousness at the scene, the fact that the officer 

saw him lean over in the cab and that he had $491 in cash. 

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 

defendant was aware of 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) (citation omitted). 
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 At most, this evidence proved that appellant was nervous 

when both the driver and front seat passenger were arrested and 

that he "leaned" in the direction of the drugs which were 

covered by a hat. The additional fact that he had approximately 

$500 in cash does not establish beyond a reasonable doubt that 

he possessed the drugs. Thus, the evidence in this case, at 

best, creates a mere suspicion or possibility that appellant 

possessed the drugs. The circumstances were not such that one 

could reasonably infer, to the exclusion of every reasonable 

hypothesis of innocence, that appellant knew of the presence, 

nature and character of the drugs found in the taxicab in which 

he was a passenger and that it was subject to his dominion and 

control. See Garland v. Commonwealth, 225 Va. 182, 184, 300 

S.E.2d 783, 784 (1983). Therefore, I would reverse and dismiss 

appellant's convictions.