Some unpublished cases need to be published, including this month’s Virginia Court of Appeals opinion concluding that the evidence was insufficient to convict a man driving a rental car without authorization, where the glove compartment contained a handgun and twenty grams of cocaine. Roy v. Virginia, Record No. 1403-15-2 (Va. App., March 7, 2017) (unpublished).

Roy was stopped for a moving violation while driving. He admitted to the police officer that his driver’s license was suspended, and that the vehicle was a rental for which nobody in the vehicle was authorized to drive pursuant to the rental agreement.

The police officer investigated and arrested Roy for driving under the influence of alcohol, and also charged him for driving with a suspended license. A pre-tow inventory search of the vehicle revealed a semi-automatic handgun and a bag containing four smaller bags totaling over twenty grams of cocaine. By a consent search, the police found $3,792 in passenger Williams’s pockets, “folded by denomination [which could indicate use for dealing in goods, whether contraband or not]. Williams gave inconsistent statements about the source of the cash.”

Without more evidence than that, the Court of Appeals wisely found insufficient evidence to convict Roy for possession with intent to distribute cocaine, and for conspiracy to do the same. As a result, not only did Roy get his conviction reversed, but also concomitantly got his five-year active prison sentence reversed.

The Court of Appeals’s beautiful language that led to the reversal of his conviction follows:

“To establish possession of a controlled substance with intent to distribute, ‘the Commonwealth had to prove beyond a reasonable doubt that [Roy] was aware of the presence and character of the drug and that he consciously possessed it.’ Jordan v. Commonwealth, 273 Va. 639, 645, 643 S.E.2d 166, 170 (2007). Possession may be actual or constructive. Id. at 646, 643 S.E.2d at 170. ‘Constructive possession may be established by ‘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 the character of the substance and that it was subject to his dominion and control.”‘ Logan v. Commonwealth, 19 Va. App. 437, 444, 452 S.E.2d 364, 368-69 (1994) (quoting Powers v. Commonwealth, 227 Va. 474, 476, 316 S.E.2d 739, 740 (1984)).

“Proximity to drugs may be probative in determining whether an accused possessed drugs, but proximity alone is insufficient to prove knowing possession. See Brown v. Commonwealth, 15 Va. App. 1, 9, 421 S.E.2d 877, 882 (1992) (en banc). Likewise, occupancy of the vehicle in which drugs are found may be probative of possession but is insufficient, standing alone, to establish knowing possession. Coward v. Commonwealth, 48 Va. App. 653, 658, 633 S.E.2d 752, 754 (2006) (‘While “occupancy of a vehicle . . . where illicit drugs are found is a circumstance that may be considered together with other evidence tending to prove that the occupant . . . exercised dominion and control over items in the vehicle” it is “insufficient to prove knowing possession of drugs.”‘ (quoting Burchette v. Commonwealth, 15 Va. App. 432, 435, 425 S.E.2d 81, 83 (1992))).

“Here, the sole evidence connecting Roy to the contraband was that he was driving the vehicle that contained it. He did not own the vehicle nor was he authorized to drive it under the rental agreement. The record contains no statements from, or actions by, Roy or his co-defendants suggesting he was aware of the presence of the contraband. See Jordan, 273 Va. at 645, 643 S.E.2d at 170. Even viewing the evidence in the light most favorable to the Commonwealth, we find it insufficient to prove knowing possession. Because the trial court was plainly wrong in finding Roy possessed the cocaine, we reverse that conviction.”

Some days are good. The March 7 day that Roy was issued was great for Roy, and for all criminal defendants. It would be great for the opinion to be published, but if it gets published, perhaps that will increase the risk of reversal en banc or by the Virginia Supreme Court.