Ervin v. Commonwealth
57 Va. App. 495
| Va. Ct. App. | 2011Background
- Ervin was convicted of possession of marijuana with intent to distribute under Code § 18.2-248.1 after a traffic stop in which a strong marijuana odor was detected.
- Appellant was the sole occupant of a car belonging to Killabrew, the mother of his child, who testified the car was loaned to various people.
- Officers found two bags containing marijuana in the glove compartment, observed 23 baggie corners, and noted the car smelled strongly of marijuana.
- Appellant possessed the car's ignition key, giving him access to the glove compartment; he did not retrieve the vehicle registration from the glove compartment when asked.
- An expert testified the packaging indicated distribution rather than personal use, and appellant testified he did not own the marijuana or the odor, which the trial court rejected.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Knowledge of presence and nature of marijuana | Ervin; insufficient knowledge evidence | Commonwealth; sufficient circumstantial evidence | Conviction affirmed on knowledge |
| Intent to distribute | Ervin; packaging suggested personal use | Commonwealth; packaging indicated distribution | Conviction affirmed on intent to distribute |
Key Cases Cited
- Coward v. Commonwealth, 48 Va.App. 653, 633 S.E.2d 752 (Va. Ct. App. 2006) (occupancy and proximity insufficient to prove guilty knowledge on their own)
- Burchette v. Commonwealth, 15 Va.App. 432, 425 S.E.2d 81 (Va. Ct. App. 1992) (ownership/occupancy must show dominion and knowledge; not mere proximity)
- Young v. Commonwealth, 275 Va. 587, 659 S.E.2d 308 (Va. 2008) (drug odor can support knowledge but not alone; must be part of total circumstantial evidence)
- Cordon v. Commonwealth, 280 Va. 691, 701 S.E.2d 803 (Va. 2010) (overruled limits on mere possession; absence of linkage to contraband requires more)
- Josephs v. Commonwealth, 10 Va.App. 87, 390 S.E.2d 491 (Va. Ct. App. 1990) (odor and other circumstances considered; Young narrowed scope of Josephs)