COURT OF APPEALS OF VIRGINIA 

Present: Judges Elder, Felton and Senior Judge Hodges 

Argued at Chesapeake, Virginia 

QUENCY C. JORDAN, S/K/A 

 QUENCY CORNELIUS JORDAN 

 MEMORANDUM OPINION* BY 

v. Record No. 3084-01-1 JUDGE WILLIAM H. HODGES 

 OCTOBER 8, 2002 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF SUFFOLK 

Westbrook J. Parker, Judge 

 Timothy E. Miller, Public Defender, for 

appellant. 

Linwood T. Wells, Jr., Assistant Attorney 

General (Jerry W. Kilgore, Attorney General, 

on brief), for appellee. 

 Quency Jordan (appellant) was convicted in a bench trial of 

possession of cocaine, in violation of Code § 18.2-250. The 

sole issue raised on appeal is whether the evidence was 

sufficient to establish that appellant constructively possessed 

the cocaine. Finding the evidence insufficient, we reverse. 

I. 

 When the sufficiency of the evidence is challenged on 

appeal, we determine whether the evidence, viewed in the light 

most favorable to the prevailing party, the Commonwealth, and 

the reasonable inferences fairly deducible from that evidence 

 

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

designated for publication.
support each and every element of the charged offense. See

Moore v. Commonwealth, 254 Va. 184, 186, 491 S.E.2d 739, 740 

(1997). "In so doing, we must discard the evidence of the 

accused in conflict with that of the Commonwealth, and regard as 

true all the credible evidence favorable to the Commonwealth and 

all fair inferences that may be drawn therefrom." Watkins v. 

Commonwealth, 26 Va. App. 335, 349, 494 S.E.2d 859, 866 (1998). 

"We will not reverse the judgment of the trial court, sitting as 

the finder of fact in a bench trial, unless it is plainly wrong 

or without evidence to support it." Reynolds v. Commonwealth, 

30 Va. App. 153, 163, 515 S.E.2d 808, 813 (1999) (citing Martin 

v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 

(1987)). 

 Viewed in this light, the evidence established that on 

October 12, 2000, at approximately 5:20 p.m., Officer C.L. 

Wheeler stopped a car driven by appellant based on information 

that the driver did not have a valid license. Appellant was the 

sole occupant. Wheeler arrested appellant for, inter alia, 

driving after having been declared an habitual offender. Before 

towing the car from the scene, Wheeler conducted an inventory 

search. 

 "[R]ight at the floorboard of the driver's seat, on the 

driver's side, right in front of the seat," Wheeler recovered "a 

small brown pill bottle containing [an] off-white substance." 

Upon closer inspection and based on his experience, the 

- 2 -
substance "appeared to be crack cocaine." Wheeler provided the 

following testimony regarding the vehicle appellant was driving: 

He stated that he had bought the vehicle 

from his sister. It was actually his 

sister's car. At first he had had it 

approximately a year. It was traded at J&J 

Auto and he had purchased it and it had not 

been properly registered. 

Wheeler indicated the bottle was "sitting right down on the 

right side in front of [the driver's] seat on the floorboard." 

He testified that "[o]nce he opened the door [he] started 

looking. It was laying right there on the floor." Wheeler also 

stated that the bottle was not covered up by debris. 

 On cross-examination, however, Wheeler acknowledged there 

were "a couple other items" of debris on the floor." He further 

equivocated as evidenced by the following exchange: 

[DEFENSE COUNSEL]: And you stated that you 

found this pill bottle partially underneath 

the driver's seat? 

[WHEELER]: Well, it really wasn't under the 

driver's seat. If you look at your seat, it 

was just like sitting right at the front, 

but down on the floorboard. 

[DEFENSE COUNSEL]: Was it partially under 

the lip of the seat? 

[WHEELER]: You probably could say so. 

[DEFENSE COUNSEL]: And was there a floor 

mat there? 

[WHEELER]: Yes, it was. 

[DEFENSE COUNSEL]: Was the pill bottle 

partially under the floor mat at all? 

- 3 -
[WHEELER]: I don't recall it being under 

the floor mat. 

[DEFENSE COUNSEL]: I'm just going from what 

you told me at [the] preliminary hearing. 

[WHEELER]: Yeah, it was partially – it was 

right at the front of the floor mat, but at 

the rear of the floor mat in front of the 

seat. 

 Wheeler indicated that the pill bottle had no name on it 

and the car "came back [registered] to his sister, disposition 

sold," and that appellant "failed to register the vehicle 

properly." 

 The trial court made the following findings: 

Well, it's no question he was driving the 

car. No question it was right at his feet. 

It would be one thing if it was hidden 

somewhere in the car, but it was right at 

his feet and it was visible to the officer. 

It was under his dominion and control. I'm 

going to find him guilty as charged . . . . 

II. 

 To establish possession of a controlled substance, the 

Commonwealth must prove that "'the defendant was aware of the 

presence and character of the particular substance and was 

intentionally and consciously in possession of it.'" McNair v. 

Commonwealth, 31 Va. App. 76, 85-86, 521 S.E.2d 303, 308 (1999) 

(en banc) (quoting Gillis v. Commonwealth, 215 Va. 298, 301, 208 

S.E.2d 768, 771 (1974)). However, "[c]onstructive possession 

may be proved through evidence demonstrating 'that the accused 

was aware of both the presence and character of the substance 

- 4 -
and that it was subject to his or her dominion and control.'" 

Id. at 86, 521 S.E.2d at 308 (quoting Wymer v. Commonwealth, 12 

Va. App. 294, 300, 403 S.E.2d 702, 706 (1991)). "Knowledge of 

the presence and character of the controlled substance may be 

shown by evidence of the acts, statements or conduct of the 

accused." Eckhart v. Commonwealth, 222 Va. 447, 450, 281 S.E.2d 

853, 855 (1981). 

 A person's occupancy of a vehicle in which a controlled 

substance is found raises no presumption that the person "either 

knowingly or intentionally possessed [the] controlled 

substance." Code § 18.2-250; Drew v. Commonwealth, 230 Va. 471, 

473, 338 S.E.2d 844, 845 (1986). Thus, we have held that 

"'[s]uspicious circumstances, including proximity to a 

controlled drug, are insufficient to support a conviction.'" 

McNair v. Commonwealth, 31 Va. App. 76, 86, 521 S.E.2d 303, 308 

(1999) (en banc) (quoting Behrens v. Commonwealth, 3 Va. App. 

131, 135, 348 S.E.2d 430, 432 (1986)). 

 Proof by circumstantial evidence "'is not sufficient . . . 

if it engenders only a suspicion or even a probability of guilt. 

Conviction cannot rest upon conjecture.'" Littlejohn v. 

Commonwealth, 24 Va. App. 401, 414, 482 S.E.2d 853, 859 (1997) 

(quoting Hyde v. Commonwealth, 217 Va. 950, 955, 234 S.E.2d 74, 

78 (1977)). "'"[A]ll necessary circumstances proved must be 

consistent with guilt and inconsistent with innocence and 

exclude every reasonable hypothesis of innocence."'" Betancourt 

- 5 -
v. Commonwealth, 26 Va. App. 363, 373, 494 S.E.2d 873, 878 

(1998) (quoting Stover v. Commonwealth, 222 Va. 618, 623, 283 

S.E.2d 194, 196 (1981) (quoting Inge v. Commonwealth, 217 Va. 

360, 366, 228 S.E.2d 563, 567 (1976))). 

 Here, the Commonwealth failed to present any evidence of 

"'"acts, statements, or conduct of the accused or other facts or 

circumstances which tend to show that [appellant] was aware of 

the presence and character"'" of the cocaine in the brown bottle 

on the floorboard or that he knowingly and intentionally 

possessed it. McNair, 31 Va. App. at 86, 521 S.E.2d at 308 

(quoting 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))).

 Appellant exhibited no suspicious conduct and made no 

incriminating statements, and Wheeler recovered no drug-related 

evidence from him. Moreover, the Commonwealth presented no 

evidence that the "off-white substance" described by Wheeler was 

visible through the closed brown pill bottle, which was on the 

floorboard, close to the edge of the driver's seat. Appellant's 

mere proximity to the cocaine found in a brown bottle on the 

floorboard is not sufficient to prove that he possessed the 

controlled substance. See id.

 Viewed as a whole, the circumstantial factors are 

suspicious, but they do not prove beyond a reasonable doubt that 

appellant constructively possessed the cocaine found in the 

- 6 -
brown bottle on the floor of the car. For the foregoing 

reasons, we reverse the conviction and dismiss the indictment. 

Reversed and dismissed. 

- 7 -