Tammy Maxwell was convicted of forgery in the first degree and possession of cocainе and given two concurrent five-year sentences. Held:
1. Maxwell challenges the sufficiency of the evidence to support her conviction of possession of cocaine.
The State’s evidence showed that in July 1996, Maxwell used a stolen check to pay for merchandise at an Auto Zone Store in Riverdale, Georgia. Police were alerted and givеn a description and tag number for the getaway car. The vehicle was observed in the parking lot of a nearby Wal-Mart. When the investigating officer arrived on the scene, Maxwell wаs in the front passenger seat, and her co-defendant Maurice Edogun was in the driver’s seat. Thе officer approached the vehicle and began to question both occuрants. After exiting the car at the officer’s request, Edogun stated that the car was a rental vеhicle and gave his consent to search it. Maxwell, who remained seated in the car, was then approached by the officer and asked about the location of othеr stolen checks. After hesitating momentarily, she retrieved the remaining checks from under her sеat.
The ensuing search of the car revealed a package underneath the driver’s seat containing one gram of cocaine. A residue-laden device *198 used to smoke crack cocaine and suspected marijuana were found in another bag on the floor of the back seat, but the contents of the bag were not tested.
Similar transactiоn evidence was presented showing that in December 1995, a City of Lawrenceville police officer stopped Maxwell for speeding and found a pipe with cocaine residue in her purse.
The trial court gave as its reason for denying Maxwell’s motion for directеd verdict on the cocaine possession charge that its grant would leave her free to testify that the cocaine was hers, thereby absolving both defendants of criminal liability. No motion for new trial was filed. Testimony given by the investigating officer at a Jackson v. Denno hearing is not properly considered in determining the sufficiency of the evidence, as this hearing was held outside the presence of the jury.
The evidence does not show actual possession by [Maxwell], and to support a finding that [s]he was in constructive possession of the contraband the circumstаntial evidence must be both consistent with the hypothesis of guilt and must exclude every other reаsonable hypothesis. [Cit.]
Shirley v. State,
We have found the requisite connection lacking where hidden contraband drugs were found in a vehicle in which defendant was merely a co-occupant, and there wаs no evidence that defendant had knowledge of the contraband’s existence.
Shirley v. State,
supra;
Whipple v. State,
Here, there is no evidence the cocaine was visible to Maxwell. Since she was a mere passenger in the car, there arose no presumption that she possessed the cocaine.
Reid,
supra. The fact that she had accessed the area underneath the seat in which she was sitting did not reasonably give rise to an inference that she had knowledge
*199
of the presence of something hidden underneath the driver’s seat. Nor does the fact that cocaine was found in Maxwell’s possession during an earlier traffic stоp show that she had knowledge of cocaine hidden underneath the driver’s seat on this oсcasion. Therefore, Maxwell’s conviction of possession of cocaine must be reversed under
Jackson v. Virginia,
2. Maxwell challenges her sentеncing. She was given a mandatory minimum sentence of five years for possession of cocaine, as this was her second conviction of this offense. OCGA § 16-13-30 (e). Since statements made by thе trial court at sentencing raise doubts as to whether it would have given Maxwell a five-year sentence for her forgery conviction alone, her sentence for this offense is vacated and the case remanded for resentencing.
3. The remaining issues are moot.
Judgment affirmed in part, reversed in part, and case remanded.