Opinion
Record No. 0253-92-2
July 20, 1993
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY D. W. MURPHEY, JUDGE DESIGNATE.
Edwin Gadberry, III for appellant.
Eugene Murphy, Assistant Attorney General (Stephen D. Rosenthal, Attorney General; Margaret Ann B. Walker, Assistant Attorney General, on brief), for appellee.
Present: Chief Judge Moon, Judges Benton and Fitzpatrick.
Argued at Richmond, Virginia.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Karen Keith Robinson, appellant, appeals her jury conviction of possession of cocaine in violation of Code § 18.2-248. We find that the Commonwealth's evidence failed to establish appellant's constructive possession of cocaine. Accordingly, we reverse the conviction.
Appellant consented to a police search of a hotel room that she occupied with a man. The room was rented under the name of a third party. Women's clothing was hanging in the room, and the trash cans were filled with food wrappers. Drug paraphernalia was found in the trash cans of the bathroom and bedroom, in a nightstand, and in a pocket of a woman's jacket that was hanging in the room. Additionally, thirteen small bags of cocaine were discovered under the mattress of one of the beds. Appellant maintains that she was unaware that the cocaine was present.
[P]ossession of a controlled substance may be actual or constructive. "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)) (other citations omitted).
"When considering the sufficiency of the evidence on appeal of a criminal conviction, we must view all the evidence in the light most favorable to the Commonwealth and accord to the evidence all reasonable inferences fairly deducible therefrom."Traverso v. Commonwealth, 6 Va. App. 172, 176, 366 S.E.2d 719, 721 (1988) (citations omitted). The Commonwealth failed to present any evidence establishing that appellant was aware of the cocaine in the room. Appellant readily consented to the search. She made no statements nor did she act in any manner that would demonstrate that she was aware of the presence and character of the cocaine. No drug paraphernalia was located in plain view and no evidence established that she owned the women's clothing located in the room or the jacket in which paraphernalia was found. The only connection between appellant and the cocaine was that the drugs were found in the room she occupied. "'Mere proximity to a controlled drug is not sufficient to establish dominion and control.'" Johnson v. Commonwealth, 12 Va. App. 150, 151, 402 S.E.2d 502, 503 (1991) (quoting Drew, 230 Va. at 473, 338 S.E.2d at 845).
We conclude that this evidence is insufficient to establish that appellant knowingly possessed the cocaine. Accordingly, we reverse the conviction.
Reversed and dismissed.