COURT OF APPEALS OF VIRGINIA 

Present: Judges Baker, Annunziata and Senior Judge Hodges 

Argued at Norfolk, Virginia 

DEON ANDRE RICHARDSON 

 MEMORANDUM OPINION*

v. Record No. 0942-95-1 BY JUDGE JOSEPH E. BAKER 

 APRIL 9, 1996 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS 

J. Warren Stephens, Judge Designate 

 James S. Ellenson for appellant. 

 Linwood T. Wells, Jr., Assistant Attorney 

General (James S. Gilmore, III, Attorney 

General, on brief), for appellee. 

 Deon Andre Richardson (appellant) appeals his bench trial 

conviction by the Circuit Court of the City of Newport News 

(trial court) for possession of cocaine in violation of Code 

§ 18.2-250. The sole issue presented by this appeal is whether 

the evidence is sufficient to support appellant's conviction. 

 In passing upon the sufficiency of the evidence, we view the 

evidence in the light most favorable to the Commonwealth, 

granting to it all reasonable inferences fairly deducible 

therefrom. Wright v. Commonwealth, 224 Va. 502, 505, 297 S.E.2d 

711, 713 (1982). Guided by that principle, the record discloses 

that on October 12, 1994, at approximately 11:00 p.m., appellant 

was riding as a front-seat passenger in a vehicle which was 

stopped for a minor traffic violation by Newport News Police 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
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Officer Christopher Wells (Wells). Two additional passengers 

were seated in the rear seat of the car. 

 Wells obtained the driver's license and vehicle registration 

and asked the driver to exit the vehicle. The driver complied 

and Wells radioed for assistance. While talking to the driver 

outside of the vehicle, Wells noticed a lot of movement by 

appellant and a rear seat passenger and that appellant looked 

back at him a couple of times. 

 Officer Michael Horton (Horton) and another officer arrived 

in response to Wells' request for assistance. Horton and the 

other officer went to the vehicle and asked the passengers to 

step out. Horton stated that appellant kept "looking down and 

around by the seat" and, because of this, he asked appellant 

"[w]hat are you looking for." Appellant did not respond. After 

appellant exited the car, Horton saw "off-white rocks" along the 

doorjamb where appellant had been looking. Additionally, Horton 

saw an off-white substance "smeared in the seat which would have 

been between [appellant's] legs where he was sitting," and "a 

couple of pebbles . . . between the seat and where [appellant's] 

legs would have been." Later, Horton also observed "some white 

substance crushed into the jeans of [appellant's] pants" which 

appeared to be the "same color and consistency" of what he had 

located in the vehicle. 

 After securing the passengers, Horton returned to the car to 

collect evidence for forensic analysis. In doing so, he combined 
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the "off-white rocks" found along the doorjamb and the "little 

pebbles" from appellant's seat in one container. Later he 

collected some of the white substance which was on appellant's 

pants and kept that separate from the samples taken from the car. 

 Forensic analysis of the evidence revealed that at least one 

of the substances in the container holding the off-white rocks 

from the doorjamb and the little pebbles from appellant's 

passenger seat tested positive for cocaine. No controlled 

substance was found in the off-white substance removed from 

appellant's pants. 

 Possession of a controlled substance may be actual or 

constructive. Archer v. Commonwealth, 225 Va. 416, 418, 303 

S.E.2d 863, 863 (1983). 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." McGee v. Commonwealth, 4 

Va. App. 317, 322, 357 S.E.2d 738, 740 (1987) (quoting Drew v. 

Commonwealth, 230 Va. 471, 473, 338 S.E.2d 844, 845 (1986)). 

 Due to the collection techniques utilized in this case, it 

is unclear what, in fact, tested positive for cocaine; it may 

have been the off-white rocks from along the doorjamb, the little 

pebbles from appellant's seat, or both. While at least one of 

the two substances tested positive, because the two were combined 
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and tested together we have no way of knowing if both were, in 

fact, cocaine. See Reedy v. Commonwealth, 9 Va. App. 386, 387, 

388 S.E.2d 650, 650-51 (1990) (The Commonwealth must show that 

evidence was not contaminated in any way that would affect the 

results of its analysis). We do know that the substance on 

appellant's pants did not test positive for cocaine, and that 

Horton testified that the substance on appellant's pants was 

similar in appearance to the other substances collected from the 

car. A reasonable hypothesis flowing from the evidence is that 

the little pebbles found resting between appellant's legs and the 

substance on appellant's pants were, indeed, the same substance. 

 In fact, the Commonwealth, believing that the substance on 

appellant's pants had tested positive for cocaine, urged that 

hypothesis on this Court. 

 Given our inability to determine which substances tested 

positive for cocaine, we cannot say that the evidence proves 

beyond a reasonable doubt that appellant "was aware of both the 

presence and character of the substance and that it was subject 

to his dominion and control." McGee, 4 Va. App. at 322, 357 

S.E.2d at 740. Accordingly, the judgment of the trial court is 

reversed and the charge against appellant is dismissed. 

Reversed and dismissed.