COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Coleman and Senior Judge Cole 

Argued at Richmond, Virginia 

CHRISTOPHER NEWELL LEE 

 MEMORANDUM OPINION* BY 

v. Record No. 0976-97-2 JUDGE SAM W. COLEMAN III 

 FEBRUARY 10, 1998 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF HOPEWELL 

James A. Luke, Judge 

 Brad P. Butterworth (Butterworth & Waymack, 

on brief), for appellant. 

 Euguene Murphy, Assistant Attorney General 

(Richard Cullen, Attorney General, on brief), 

for appellee. 

 Christopher Newell Lee was convicted in a bench trial for 

possession of cocaine, a schedule II controlled substance. The 

sole issue on appeal is whether the evidence is sufficient to 

prove that appellant constructively possessed the cocaine. 

Finding the evidence sufficient, we affirm the conviction. 

 In proving possession of a controlled substance, the 

Commonwealth may prove either actual or constructive possession. 

See White v. Commonwealth, 24 Va. App. 446, 452, 482 S.E.2d 876, 

879 (1997). 

 "To support a conviction based on 

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 

 

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

designated for publication. 
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subject to his dominion and control.'" 

Id. (quoting Drew v. Commonwealth, 230 Va. 471, 473, 338 S.E.2d 

844, 845 (1986) (other citations omitted)). When the 

Commonwealth relies on circumstantial evidence, as it must often 

do in order to prove constructive possession, the evidence must 

exclude every reasonable hypothesis of innocence that flows from 

the evidence. See Cantrell v. Commonwealth, 7 Va. App. 269, 

289-90, 373 S.E.2d 328, 338-39 (1988). 

 "On appeal, we view the evidence in the light most favorable 

to the Commonwealth, granting to it all reasonable inferences 

fairly deducible therefrom." Martin v. Commonwealth, 4 Va. App. 

438, 443, 358 S.E.2d 415, 418 (1987). "The judgment of a trial 

court sitting without a jury is entitled to the same weight as a 

jury verdict and will not be set aside unless it appears from the 

evidence that the judgment is plainly wrong or without evidence 

to support it." Id.

 Viewed accordingly, the evidence proved that appellant 

constructively possessed cocaine. Appellant was driving his 

brother's pickup truck when he was stopped by City of Hopewell 

Police Detective Michael Whittington. After appellant consented 

to a search of the vehicle, Detective Whittington recovered a 

baggie containing cocaine residue from a jacket lying directly 

behind the driver's seat. When Detective Whittington stated to 

appellant that he believed the residue was cocaine, appellant 

replied: "It is, but it isn't mine; it's my brother's." 
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 The circumstantial evidence supports the trial court's 

conclusion that appellant knew of the nature and presence of the 

cocaine and that he subjected it to his dominion and control. 

Appellant's acknowledgement that the substance in the baggie was 

cocaine warranted the inference that he knew of the presence and 

nature of the cocaine in the jacket. See Josephs v. 

Commonwealth, 10 Va. App. 87, 99, 390 S.E.2d 491, 497 (1990) (en

banc) (constructive possession may be proved by "evidence of 

. . . declarations . . . of the accused for which an inference 

may be fairly drawn that he knew of the existence of the 

narcotics at the place they were found"). Moreover, from the 

fact that appellant knew of the nature and character of the 

substance and was familiar with it by claiming that it belonged 

to his brother, the fact finder could infer that he was aware of 

the presence of the cocaine. Furthermore, the fact finder could 

reasonably conclude that appellant, who knew of the nature and 

presence of the cocaine, was exerting dominion and control over 

the cocaine from the fact that he was the operator of the 

vehicle, which was under his immediate lawful possession and 

control. See Fox v. Commonwealth, 213 Va. 97, 101, 189 S.E.2d 

367, 370 (1972); Jetter v. Commonwealth, 17 Va. App. 745, 747, 

440 S.E.2d 633, 634 (1994); Burchette v. Commonwealth, 15 Va. 

App. 432, 435, 425 S.E.2d 81, 83 (1992). The proximity of 

appellant to the cocaine found directly behind the driver's seat 

is a factor that the fact finder could consider in determining 
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whether he possessed the cocaine. See White, 24 Va. App. at 

452-53, 482 S.E.2d at 879. 

 Accordingly, upon review, we cannot say that the conviction 

is plainly wrong or without evidence to support it. See

Code § 8.01-680. We affirm the conviction. 

 Affirmed.
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Benton, J., dissenting. 

 "The burden was on the Commonwealth to prove beyond a 

reasonable doubt that [Christopher Lee] . . . was aware of the 

presence and character of the [cocaine] . . . and was 

intentionally and consciously in physical or constructive 

possession of it." Wright v. Commonwealth, 217 Va. 669, 670, 232 

S.E.2d 733, 734 (1977). Because the conviction was based upon 

constructive possession, the evidence must prove "acts, 

statements, or conduct of [Lee] . . . or other facts or 

circumstances which tend to show that [Lee] . . . was aware of 

both the presence and character of the substance and that it was 

subject to his dominion and control." Powers v. Commonwealth, 

227 Va. 474, 476, 316 S.E.2d 739, 740 (1984). "Further, where, 

as here, a conviction is based on circumstantial evidence, 'all 

necessary circumstances proved must be consistent with guilt and 

inconsistent with innocence and exclude every reasonable 

hypothesis of innocence.'" Garland v. Commonwealth, 225 Va. 182, 

184, 300 S.E.2d 783, 784 (1983) (citation omitted). 

 No acts, statements, conduct of Lee, or other circumstances 

proved that Lee was aware of the presence of the cocaine. The 

evidence proved that the officer stopped Lee while Lee was 

driving his brother's truck. Lee consented to a search of the 

truck. After three or four minutes of searching the cab of the 

truck, the officer searched behind the seats and found a jacket 

and other clothing. Inside the pocket of the jacket, the officer 
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found "a clear, baggy type item" that the officer believed 

contained cocaine residue. The officer testified that he "showed 

the item to [Lee] . . . [and] advised him that I believed it was 

cocaine residue." Lee told the officer, "It is, but it isn't 

mine; it's my brother's." 

 Although the evidence proved that Lee acknowledged that the 

substance in the baggie was cocaine residue, that proof does not 

warrant the inference, as the majority suggests, that Lee was 

aware of the cocaine's presence in the vehicle. The proof merely 

allows the inferences that Lee knew the appearance of cocaine 

residue, or that Lee was familiar with his brother's cocaine use, 

or that Lee was willing to accept the officer's belief that the 

substance was cocaine. The inferences that flow from the 

evidence do not establish that Lee knew before seeing the cocaine 

that cocaine was in the jacket or even that he knew the jacket 

was in the vehicle. The principle is well established that 

"[w]here inferences are relied upon to establish guilt, they must 

point to guilt so clearly that any other conclusion would be 

inconsistent therewith." Dotson v. Commonwealth, 171 Va. 514, 

518, 199 S.E. 471, 473 (1938). Thus, to sustain a conviction, it 

is not enough to conclude that the evidence reasonably supports 

an inference of guilt, "[t]he actual commission of the crime by 

the accused must be shown by evidence beyond a reasonable doubt." 

Clodfelter v. Commonwealth, 218 Va. 619, 623, 238 S.E.2d 820, 

822 (1977). 
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 No evidence proved that Lee knew or should have necessarily 

known that a plastic baggie was in a pocket of a jacket in the 

cab of a truck that did not belong to him. See Jones v. 

Commonwealth, 17 Va. App. 572, 439 S.E.2d 863 (1994). The 

evidence does not exclude the reasonable hypothesis that Lee 

became aware of the presence and the character of the substance 

once the officer showed it to Lee and told Lee that he believed 

it was cocaine residue. 

 It cannot even be reasonably inferred that because Lee 

claimed the baggie belonged to his brother, Lee was aware of the 

presence of the substance before it was shown to him. Lee did 

not acknowledge that the jacket was his. The evidence proved 

that the vehicle was owned by Lee's brother. Furthermore, no 

evidence excluded the reasonable hypothesis that Lee said the 

cocaine was his brother's because it was found in the pocket of a 

jacket in his brother's truck. Certainly, the evidence does not 

exclude the reasonable hypothesis that the bag found in the 

jacket pocket was the property of Lee's brother, the owner of the 

truck. Lee's presence in the vehicle does not prove that he 

possessed the cocaine. Lee's mere proximity to a controlled 

substance is not enough to establish possession, see Wright, 217 

Va. 670-71, 232 S.E.2d at 734, and Lee's occupancy of the vehicle 

does not give rise to a presumption that he possessed the 

cocaine. See Code § 18.2-250.1(A). At most, the evidence 

creates a suspicion that Lee was aware of the presence of the 
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cocaine. "Suspicion, however, no matter how strong, is 
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insufficient to sustain a criminal conviction." Stover v. 

Commonwealth, 222 Va. 618, 624, 283 S.E.2d 194, 197 (1981). 

 For these reasons, I would reverse the conviction.