Record No. 1338-91-4Court of Appeals of Virginia. Alexandria.
October 13, 1992
FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY H. SELWYN SMITH, JUDGE.
E. E. Sanders, Jr., for appellant.
H. Elizabeth Shaffer, Assistant Attorney General (Mary Sue Terry, Attorney General, on brief), for appellee.
Present: Chief Judge Koontz, Judges Barrow and Willis.
Argued at Alexandria, Virginia.
MEMORANDUM OPINION[*]
JUDGE BERNARD G. BARROW.
This appeal is from convictions of possession of cocaine, possession of heroin and possession of drug paraphernalia. We hold that the evidence was insufficient to support the convictions and, therefore, reverse the convictions.
Constructive possession of a controlled substance requires proof that a defendant 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). Although proximity to drugs and the occupancy of a vehicle in which they are found are factors that may be considered in determining whether defendant possessed drugs, these factors, standing alone, do not give rise to a presumption of possession. Code § 18.2-250; Josephs v.Commonwealth, 10 Va. App. 87, 100, 390 S.E.2d 491, 498 (1990) (en banc).
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In this case, the circumstantial evidence was insufficient to support a factual finding that the defendant was aware of the presence and character of both the cocaine and the heroin found in the automobile in which he was riding. A laboratory analysis identified cocaine residue on a tin can bottom and some pieces of cotton, as well as heroin residue on other pieces of cotton and plastic bags. These items were found within several feet of the defendant in an automobile in which he was riding with two others. No other evidence of cocaine or heroin was found in the car or on the defendant. The evidence was insufficient to permit a finding that the defendant knew of the presence or the character of these controlled substances.
In addition, several syringes were found in the automobile close to where the defendant was seated but none of these syringes contained any residue or other evidence of drug use. Therefore, because the evidence was insufficient to show that the defendant was aware of the presence and character of the cocaine and heroin residue found in other locations, one could not conclude beyond a reasonable doubt that the circumstances reasonably indicated “an intention to use such controlled paraphernalia for purposes of illegally administering any controlled drug.” Code § 54.1-3466.
For these reasons, the judgments of conviction are reversed.
Reversed.
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