COURT OF APPEALS OF VIRGINIA

Present: Judges Elder, Bray and Senior Judge Baker 

Argued at Richmond, Virginia 

DELNOR JOSE BANKS 

 MEMORANDUM OPINION* BY 

v. Record No. 1405-98-2 JUDGE LARRY G. ELDER 

 APRIL 27, 1999 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF HANOVER COUNTY 

Richard H. C. Taylor, Judge 

Linwood T. Wells, III, for appellant. 

Ruth Ann McKeaney, Assistant Attorney General 

(Mark L. Earley, Attorney General, on brief), 

for appellee. 

 Delnor Jose Banks (appellant) appeals from his bench trial 

conviction for possession of cocaine. On appeal, he contends 

the evidence was insufficient to support his conviction. For 

the reasons that follow, we agree and reverse the conviction. 

I. 

FACTS 

 Shortly before 7:00 p.m. on June 23, 1997, Deputy Sheriff 

Brian Bradley saw a car parked on the side of a road, and he 

pulled up behind it. As Bradley approached on foot to see “if 

everything was okay,” he saw the vehicle’s front-seat passenger 

“lean[] down” as if “he was trying to hide something,” and 

 

 *Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, 

this opinion is not designated for publication. 
Bradley noticed smoke coming out from under the middle of the 

vehicle’s “front seat area.” When Bradley asked appellant about 

the source of the smoke, appellant responded that “he did not 

know unless it was a cigarette.” Appellant denied that he and 

his passenger were doing anything illegal and told Bradley that 

his car had overheated, but when Bradley looked at the 

temperature gauge, it displayed a normal reading. 

 During a consent search, Bradley found cocaine on the 

passenger, but appellant denied that there was any crack cocaine 

in the vehicle. However, in a search of the vehicle, Bradley 

found a small, clear container of what proved to be crack 

cocaine and a set of scales in the glove box, a razor blade with 

an unidentified white residue on it in the ashtray, and two 

one-hundred-dollar bills in the driver’s side door console. At 

some point during the encounter, Deputy Bradley determined that 

the smoke he saw was emanating from a beer can, but he provided 

no other testimony regarding the significance of the can, other 

than to say he did not attempt to have it fingerprinted. Deputy 

Bradley testified that he did not recall checking the car’s 

registration but believed the vehicle belonged to appellant’s 

wife because she came to the sheriff’s office to try to get it 

back. 

 Appellant testified and denied any knowledge of the cocaine 

in the car or in the passenger’s possession. He said he was 

aware his passenger had a beer can but said he was paying 

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attention to his car, which had a tendency to overheat, rather 

than to the beer can. 

II. 

ANALYSIS 

 When the Commonwealth is required to prove beyond a 

reasonable doubt that an accused possessed illicit drugs by 

establishing 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 

[accused] 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). Proof of constructive possession 

necessarily rests on circumstantial evidence; thus, “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). Proximity 

to drugs is a circumstance which may be probative in determining 

whether an accused possessed drugs, but proximity alone is 

insufficient to prove possession. See Brown v. Commonwealth, 15 

Va. App. 1, 9, 421 S.E.2d 877, 882 (1992) (en banc). Likewise, 

ownership or occupancy of the vehicle in which drugs are found 

is a circumstance probative of possession but is insufficient, 

standing alone, to establish possession. See Drew, 230 Va. at 

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473, 338 S.E.2d at 845 (citing Code § 18.2-250). Thus, in 

resolving this issue, the Court must consider “the totality of 

the circumstances disclosed by the evidence.” Womack v. 

Commonwealth, 220 Va. 5, 8, 255 S.E.2d 351, 353 (1979). 

 Viewing the evidence in the light most favorable to the 

Commonwealth and according it all reasonable inferences fairly 

deducible therefrom, as we must on appeal, see Garland, 225 Va. 

at 184, 300 S.E.2d at 784, we find that the evidence was 

insufficient, as a matter of law, to prove that appellant 

possessed or knowingly exercised dominion and control over the 

cocaine found in the glove box of the vehicle. The evidence 

proved only that appellant occupied the vehicle and was in 

proximity to the cocaine. Appellant engaged in no furtive 

behavior and made no statements tending to show he was aware 

that cocaine was present anywhere in the car. See Scruggs v. 

Commonwealth, 19 Va. App. 58, 61, 448 S.E.2d 663, 665 (1994) 

(“reject[ing] . . . argument that [accused] must have possessed 

the cocaine because it was hidden in his automobile,” secreted 

in a tear in the upholstery). Therefore, although highly 

suspicious, the evidence does not exclude the reasonable 

hypothesis that appellant’s passenger or appellant’s wife placed 

the cocaine in the glove box and that appellant was unaware of 

its presence. See id. at 61-62, 448 S.E.2d at 665. 

 The prosecutor argued to the trial court that cocaine was 

being used in the car and that the beer can from which Deputy 

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Bradley saw smoke emanating was the device being used to smoke 

the cocaine. However, no evidence in the record permitted the 

trial court to draw such inferences, for no evidence indicated 

that cans may be used to smoke cocaine or that cocaine residue 

was on the can Deputy Bradley found beneath the seat of 

appellant’s car. The only indication given at trial that the 

beer can was being used to smoke cocaine came from a question 

the prosecutor posed to appellant on cross-examination. The 

prosecutor’s question assumed a fact--that it was “cocaine that 

was smoking from the beer can . . . under the seat”--not 

established by the evidence, and, of course, the prosecutor’s 

statement itself was not evidence in the case. Therefore, even 

assuming the evidence established that appellant was aware of 

the smoking can in the car, no evidence in the record linked 

that smoking can to the cocaine found in the glove box. 

 In addition, the evidence did not establish whether 

appellant was aware of the presence and character of the razor 

blade and unidentified white residue in the ashtray or whether 

the razor blade was visible to him. See Jones v. Commonwealth, 

17 Va. App. 572, 574, 439 S.E.2d 863, 864 (1994) (noting absence 

of evidence to prove passenger accused of possessing cocaine saw 

small pieces of cocaine on car’s console or that he recognized 

items as cocaine). 

 Although the trial court was entitled to conclude that 

appellant was lying to conceal his guilt and to reject his 

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testimony on that basis, see, e.g., Pugliese v. Commonwealth, 16 

Va. App. 82, 92, 428 S.E.2d 16, 24 (1993), this rejection did 

not constitute affirmative evidence of appellant’s guilt. The 

Commonwealth was still required to offer affirmative evidence 

that proved appellant was aware of the presence and character of 

the cocaine and that excluded all reasonable hypotheses of 

innocence. Although the circumstances were highly suspicious, 

they were insufficient to prove appellant’s guilt beyond a 

reasonable doubt. See Burchette v. Commonwealth, 15 Va. App. 

432, 439, 425 S.E.2d 81, 86 (1992). 

 For these reasons, we hold the circumstantial evidence was 

insufficient to exclude all reasonable hypotheses of innocence, 

and we reverse appellant’s conviction. 

Reversed. 

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