Where the commonwealth’s evidence showed that appellant was driving a car, and that a pill, which later proved to be Oxycodone, was found in a crumpled piece of notebook paper in the car’s console, this was insufficient evidence to sustain a conviction for possessing Oxycodone.
The fact that the car smelled of marijuana and a small amount of marijuana was also found in console does not support an inference that appellant knew there was Oxycodone in the car.
There is insufficient evidence that appellant Yerling knew the Oxycodone was in the car he was driving. He “made no statements, incriminating or otherwise, that would lead the factfinder to infer that he was aware of the presence of the pill. The testimony at trial was that the pill was out of sight, in a closed console, wrapped in a crumpled piece of paper, in a car that may or may not have belonged to Yerling. The only incriminating fact before the trial court was Yerling’s proximity to the pill.
“And, as this Court noted in Coward v. Commonwealth, 48 Va. App. 653, 658 (2006), mere occupancy and proximity, although factors to be considered among the totality of the circumstances, are insufficient standing alone to prove a defendant’s guilty knowledge of illegal drugs. …
“Here, like in Coward, occupancy of the car and proximity to the controlled substance are the only facts that raise an inference of Yerling’s knowledge of the presence and character of the drugs. There was no testimony in this case as to who owned the car, that Yerling made any furtive movements, or that Yerling made any statements lending to an inference that he knew the pill was in the car.
“Additionally, unlike Coward where the cocaine was out in the open, here the pill was inside the console, out of sight. Accordingly, we hold that occupancy of a car and proximity to a controlled substance, without more, are insufficient to prove that an appellant is aware of the presence and character of a controlled substance.”
“The Commonwealth argues that because there was an odor of marijuana about the car, and the marijuana and the pill were both inside the console, the trial court could infer that Yerling must have also smelled the marijuana and therefore knew it was in the car and accordingly knew the pill was in the car.
“Assuming that Yerling was familiar with the scent of marijuana and that the odor of marijuana was sufficient to place him on notice of the marijuana in the car, nothing about an odor of marijuana suggests the presence of Oxycodone. Thus, even if he was aware of the presence of the marijuana, that does not establish he was also aware of the presence of the pill.
“Moreover, there was no evidence to support the inference that Yerling was aware of the character of the substance. To sustain a conviction for possession of a controlled substance, ‘[t]he Commonwealth must also establish that the defendant intentionally and consciously possessed [the drug] with knowledge of its nature and character. That knowledge is an essential element of the crime.’ Young v. Commonwealth, 275 Va. 587, 591 (2008)[.] …
“Here, like in Young, the nature of the pill was not readily apparent. The pill was simply described as a pink pill with a marking on it. Officer Murden did not know what kind of substance comprised the pill found in the car Yerling was driving, and there was no evidence to indicate that Yerling was any more informed.
“Officer Ewell even testified that he called poison control to try to determine the nature of the pill. The pink pill was inconspicuously located inside a balled-up piece of notebook paper and merely had ‘K-56’ inscribed on it. Certainly, the notebook paper ‘gave no indication of [the pill’s] character.’ …
“In fact, the crumpled paper was just as indicative of a piece of trash as it was an intentional hiding place. Police ‘could not determine [the pill’s] nature without submitting [it] for laboratory analysis, and there [was] no reason to infer that the defendant was any better informed.’ …
“Accordingly, the trial court erred in finding that the evidence was sufficient to prove that Yerling was aware of the nature and character of the pill.”
Yerling v. Commonwealth. Record No. 1705-18-1, Feb. 18, 2020. CAV (Petty) from Chesapeake Cir. Ct. (Wright). A. Robinson Winn for appellant, Rachel L. Yates for appellee. VLW 020-7-029, 7 pp. Published.