*1 Thus, testimony regarding heroin. Officer Smith’s this same necessary support Bynum’s fact was redundant and is not conviction. reasons, these we hold that the trial court did not
For when thereby commit an error of law and abuse its discretion testimony it denied motion to strike the of Officer Bynum’s photograph Johnson. The aerial Officer Johnson used Bynum’s measure the distance between location and the school and, thus, property boundary hearsay, was not neither was his testimony. yellow We need not determine whether lines photograph that were added to the constituted a form of hearsay, rely because Officer Johnson did not on those lines. sufficient, Finally, testimony Officer Johnson’s without the Smith, testimony of to establish that Bynum Officer 1,000 observed with heroin within feet of school property. III. Conclusion Accordingly, Bynum’s we affirm conviction.
Affirmed.
Court of
Richmond.
Jan. *4 (Jessica Bulos; Portsmouth, Matthews, M. Of- K. Gregory Defender, brief), appellant. on for fice of the Public (Ken Williamson, Attorney General C. Assistant Jennifer General, brief), Cuccinelli, II, appellee. on for Attorney T. neth FRANK, C.J., ELDER, FELTON, and Present: HALEY, KELSEY, McCLANAHAN, HUMPHREYS, ALSTON, BEALES, PETTY, and JJ. POWELL A EN UPON REHEARING BANC BEALES, Judge.
Samuel A. Ervin was convicted of (appellant) possession distribute, marijuana with intent in violation of Code § Appellant argues 18.2-248.1.1 on that the evidence at appeal 1) trial prove beyond was insufficient to a reasonable doubt constructively possessed that he with knowl- 2) edge of its nature and character and he it possessed with the intent to A requisite panel distribute. divided of this Court held that the evidence was insufficient prove guilty knowledge marijuana.2 had See Ervin 0861-09-1, No. 2010 WL (Va. 2010). Ct.App. LEXIS 249 granted June We petition rehearing Commonwealth’s for en banc stayed panel’s the mandate of the decision. en rehearing On banc, we lift stay now the and affirm conviction for with intent to distribute for the reasons stated below. Background
I. review, “Applying familiar principles appellate we will state the facts in the light most favorable to the Common wealth, the prevailing party at trial.” Williams v. Common wealth, 190, 191, (2009).
On February p.m., at 8:20 Portsmouth Officers O’Brien and Rad a vehicle stopped being by appellant driven after the officers observed a traffic Appellant violation.3 license, Appellant driving suspended 1. was also convicted of aon third offense, subsequent § Appellant or in violation of Code 46.2-301. chal- lenged petition appeal, appeal that conviction in his for but an was not granted question presented. on that Therefore, panel majority opinion question did not reach the appellant possessed whether this with intent to distribute. trial, appellant suppress resulting 3. At moved to the fruits of the search stop. suppress. from this traffic The trial court denied the motion to and, therefore, Appellant appeal ruling, argued did not he has not appeal anything stop improper. on about the traffic *5 him observed of the vehicle. Neither officer occupant the sole of him. during their observations any make furtive movements vehicle, strong “a However, approached as the officers open the car’s through was discernible marijuana” odor of windows. and for for his driver’s license appellant
The officers asked the officers his registration. Appellant gave vehicle’s license, any suspended, produce but did not driver’s which ever appellant The record does not indicate that registration. (or the officers registration help look for the attempted to it), told the officers that simply locate but instead he was not his. vehicle from detecting strong coming
After odor driver’s determining appellant’s the vehicle and after custody the officers took into suspended, license was police him in the cruiser. The officers then placed and odor of strong searched the vehicle both for source key registration. Using and for the vehicle’s Officer Rad unlocked the ignition, that was the vehicle’s immediately The officers observed two glove compartment. bags glove compartment. Ziploc inside the One of Ziploc corners”) corners bags plastic bag (“baggie held ten knotted marijuana, Ziploc bag and the other held thirteen containing smoking No devices or baggie containing corners in appel- were found inside the vehicle or drug paraphernalia possession. lant’s Killabrew, the mother of belonged Tiffany
The vehicle car,” “secondary Killabrew’s daughter. It was her people, including appellant, which she loaned to various brother, and her sister. Killabrew testified that p.m. the vehicle sometime between 6:00 and 7:00 on borrowed 29, 2008.4 February during suppression Appellant as witness hear- called Killabrew immediately ing, the bench The court which was held before trial. However, testimony "just suppression” as for the issue. described this court, prosecutor, appellant's defense counsel all the trial and own testimony addressing Killabrew's when the evidence rele- referenced trial, Natal,
At Officer expert Francisco an on the packaging narcotics, distribution testified that the marijuana *6 found inside the glove compartment had a street value of over that, explained Officer Natal expert opinion, $200. his packaging of this quantity marijuana was inconsistent with Furthermore, personal use. Officer Natal testified that he knew of no instance where someone possessed twenty-three baggie individual corners of marijuana personal for use.
Appellant defense, testified his own denying ownership When asked on cross-examination whether he was familiar with the marijuana, smell of appellant initially replied, “Maybe.” answer, When asked to clarify his appel- testified, “No, lant then really. Usually not you can smell no, really. not I’m going not even to claim that. Not like— really.”
The trial court appellant’s denied motions to strike and found appellant guilty distribute, of possession with intent to noting that “either [appellant] had been smoking marijua- [the or he recently just na] had had in the somebody car who was it, smoking or at least that’s the conclusion that the Court can draw from this evidence.” The trial court continued:
Well, girlfriend was, his whose car it took the stand and any didn’t claim ownership of it. Her only testimony was he used the car regularly too, people other did so we don’t are, know who here, those other people they’re not they haven’t offered any testimony they used the car. only testimony is Mr. Ervin used the car and he was in the car when there used, being I least think you can infer evidence, that from the and he had the key to where the was locked in glove com- partment. appellant's guilt
vant on the with intent to distribute Therefore, charge. acknowledged as during counsel oral argument, since the trial court was asked to consider this evidence determining appellant's guilt, when certainly we are not constrained considering from testimony determining sufficiency Killabrew’s appeal. of the evidence on that the manner which explained also The trial court possessed the packaged proved it. marijuana with intent to distribute Analysis II. support evidence to sufficiency
When does not reviewing “a court challenged appeal, on conviction at the trial believes that the evidence itself whether it ‘ask ” v. a reasonable doubt.’ Crowder guilt beyond established Commonwealth, 658, 663, (2003) Virginia, Jackson v. U.S. (quoting (1979)). “Viewing the evi- 61 L.Ed.2d S.Ct. as we light most favorable to dence court,” in the trial party it the prevailing must since was 296, 330, 601 S.E.2d Riner *7 (2004), trier of ‘any ask whether rational must instead “[w]e crime the essential elements of the fact could have found ” Crowder, 663, doubt,’ 41 588 Va.App. a reasonable beyond Commonwealth, 41 Va.App. v. (quoting Kelly at 387 S.E.2d (2003) (en banc)). 444, 250, 257, 447 See also 584 S.E.2d Commonwealth, 437, 442, 499, 275 657 S.E.2d Maxwell v. Va. (2008). full to the gives play 502 “This familiar standard to conflicts in fairly of the trier of fact resolve responsibility evidence, and draw reasonable testimony, weigh to to Jackson, ultimate facts.” 443 inferences from basic facts to 319, at 2789. U.S. at 99 S.Ct.
Indeed,
considering
are an
court
suffi
appellate
as we
the trial
appeal,
of the evidence on
we must review
ciency
“
highest degree
appellate
‘with the
factfinding
court’s
”
Commonwealth,
577, 586,
Va.App.
54
deference.’ Noakes v.
(en banc)
(2009)
48,
Thomas v. Com
(quoting
681 S.E.2d
52
monwealth,
605, 608,
229,
(2006)),
231
Va.App.
48
633 S.E.2d
(2010);
McMillan v.
338,
280
503 “ (2008))). 308, may 310 We not ‘substitute our judgment for fact,’” Commonwealth, that of the trier Wactor v. 38 (2002) 375, 380, 160, 564 162 (quoting S.E.2d Com- 465, 466, 72, momvealth v. 256 Presley, Va. 507 S.E.2d 72 (1998)), evidence,” may “reweigh nor we Nusbaum v. Berlin, 385, 408, (2007), because authority trial,” we have no “to preside de novo over a second Commonwealth, 1, 11, Haskins v. 44 Va.App. 602 S.E.2d (2004). defer, instead, We must to the respon- factfinder’s “ ‘to sibility resolve conflicts in the testimony, weigh evidence, and to draw reasonable inferences from basic facts ” Commonwealth, to ultimate facts.’ Abdullah v. 53 Va.App. 750, 755, (2009) Jackson, 675 S.E.2d (quoting 443 U.S. 2789). 99 S.Ct. at As Supreme Court recently stated v. Sullivan 280 Va. (2010), this deference to the factfinder’s determinations
“applies
only
fact,
not
to findings of
but also to any reasonable
justified
inferences the
may
fact-finder
have drawn from
proved.”
facts
Id. at
Therefore, under this highly deferential standard of review
appeal,
on
judgment
“[t]he
of the trial
presumed
court is
to be
correct and will be reversed only upon a showing that it is
”
‘plainly wrong or without evidence to
it.’
support
Viney 296, 299,
(2005)
8.01-680);
(quoting
§
Code
States,
see also Burks v. United
1, 17,
(1978)
437 U.S.
98 S.Ct.
A. Possession of Marijuana the Appellant argues that the evidence at trial failed to establish beyond a reasonable doubt that he knowingly possessed the
504 When consid- glove compartment. in the vehicle’s issue, principles the of agree
ering
parties
Addressing
here.
these
applicable
are
possession
constructive
of
has held:
Supreme
Virginia
Court
principles,
familiar
substance,
for
of a controlled
possession
In a prosecution
sufficient to
produce
must
evidence
the Commonwealth
that the
beyond a reasonable doubt
support a conclusion
inten-
drug
knowing
was
and
possession
defendant’s
Commonwealth,
711, 713, 213
v.
tional. Burton
(1975).
757,
possession
Actual or constructive
S.E.2d
713,
Id. at
Young, Commonwealth, 437, 444, 368-69 Va.App. (1994) (en banc) (“Constructive may be established possession acts, statements, or conduct of the accused or by ‘evidence tend to show that other facts or circumstances which the character presence defendant was aware of both the subject that it to his dominion and of the substance and ” Commonwealth, (quoting control.’ Powers v. (1984))). 739, 740 316 S.E.2d finding to contest the trial court’s Appellant appear does not glove compartment that the recovered from the However, he subject argues to his dominion and control.5 prove beyond failed to reasonable doubt Commonwealth knowledge of this requisite guilty that he had vehicle, key engage ignition, to the which used to 5. The capable unlocking glove compartment where the mari- was also " juana was found. ‘The law is well established gives dominion control over an item [and] means to exercise ” Wright possessor over the item [and] [itself].' dominion control (2009) Va.App. (quoting Bell v. (1996)). 291-92
505
appellant’s possession
The trial court found that
intentional,
that he con-
knowing
proving
and
591,
at
marijuana. Young,
275 Va.
structively possessed
court,
duty
an
“it is our
appellate
659 S.E.2d
310. As
tends to
the verdict” when
support
look to
evidence which
sufficiency
challenged
appeal. Sny-
of the evidence is
on
Commonwealth,
1009, 1016,
452,
v.
202
457
der
Va.
(1961). Therefore,
to the
evidence
we look
circumstantial
Haskins, 44 Va.App.
the trial court’s verdict. See
supporting
(“In
6,
other,
drug
any
1. Factors Indicative of Guilty Knowledge
This Court’s
holding Coward
(2006),
clear
*10
passenger’s
console between the driver’s and
seats.
Id. The
Toyota belonged
driver told the officer that the
to his mother
and that he had been
it all
Id. Coward made
driving
evening.
trial,
officer.
At
the trial
no statements to the
Id.
Coward’s
cocaine,
court convicted Coward of
of
its
basing
finding
guilty knowledge
solely
that Coward had
of the cocaine
on
occupancy
proximity
his
of
vehicle and his
to the
cocaine. Id. at
On this Court Coward’s reit- appeal, reversed erating principle occupancy proxim- the familiar that mere ity, although among totality factors to be considered of the circumstances, are standing prove insufficient alone to a Therefore, defendant’s guilty knowledge illegal drugs. Id. although mindful of the deferential standard of appellate case, sufficiency review a of the evidence id. at S.E.2d at this Court held that the evidence at Coward’s trial was insufficient aas matter of law because it “did not any establish other or circumstances necessary to draw facts legal presence conclusion Coward was aware of the and character of the cocaine.” Id. at S.E.2d added). (emphasis Coward,
Here, unlike in present evidence trial did other facts and permitting circumstances the trial court to draw the conclusion that was of the presence aware marijuana and character of the glove compartment— and these may facts and circumstances be considered in addition to of the occupancy proximity vehicle and to the Based on the combined force of these circumstances, concurrent and related the trial court’s finding that appellant guilty knowledge had of the in the not glove compartment plainly wrong unsupported by or the evidence. Strong Marijuana
a. The
Odor A
knowledge
presence
defendant’s
of the
and character
acts, statements,
a drug may
by
be shown
evidence of the
accused,
or conduct of the
Garland
(1983),
182, 184,
well as
“other facts
as
guilty
to demonstrate the accused’s
tending
or circumstances”
Commonwealth, 42
drug,
Williams v.
Va.
knowledge
(2004).
Supreme
As the
App.
“drug’s
a
Virginia recently explained
Young,
Court of
support
circumstantial evidence to
distinctive odor” can be
that a
knew of the nature and character of
finding
defendant
591, 659
Young,
in his
possession.
substance
at 310.
Here, appellant
driving
strongly
a vehicle that smelled
very
illegal drug
same
discovered
—the
odor,
glove compartment.
readily
vehicle’s
This
which was
they ap-
discernible to both officers as
when
*11
vehicle,
proached appellant’s
certainly
appar-
would
have been
strong
ent to
as he sat in the vehicle. The
drug provided significant
distinctive odor of the
a
indication to
(or
near)
anyone
marijuana
inside
even
the vehicle that
was
592,
located within the vehicle. See id. at
6. This
Supreme
Court's
in
was overruled in
the
Young,
Josephs,
Court in
275 Va. at
the
defendant,
luggage
placed
whose
was
in the trunk of a vehicle next to
pounds
marijuana packaged
garbage bags,
in closed
said she
drugs.
"didn't know about
1st time I’ve driven with that stuff.” Jo-
sephs,
Discussing
The trial court not found that the officers smelled already marijuana, smoked it found also that the had been recently by appellant smoked or someone the car him. The finding, with trial court’s which was not certainly given testimony unreasonable officers’ concerning strength and they ap- obviousness of the odor as vehicle, proached is entitled to deference during appellate sufficiency review for of the evidence. Hancock v. Common- wealth, (1991). 12 Va.App. Josephs emphasized "ample circumstantial evidence” that estab- Josephs’ guilty knowledge marijuana, focusing approvingly lished which, on the "the odoriferous contents of the trunk” in that case— *12 pill Young, gave Josephs unlike the odorless contents of the bottle in an marijuana indication of the nature and character of the within the
vehicle there.
Id. at
S.E.2d at 63-64.
the officers’ detection of the
strong
recently
marijuana certainly
odor of
burnt
does not
undermine the trial court’s conclusion that
appellant
marijuana
glove
aware of the “fresh”
compartment.8
Jackson,
(stating
See
Therefore, the presence strong marijuana of the odor of from within the vehicle is one factor9 to consider this case because it tends “to or show allow the trial court to [] reasonably infer” marijuana was aware of the Coward, the glove compartment. However,
S.E.2d at 754.
the strong
marijuana
odor of
ema-
vehicle,
from
nating
readily
discernible
each of the
marijuana
originate
It
axiomatic that burnt
must
as unburnt mari-
Therefore,
juana.
Ziploc bags
marijuana
the fact that the
of unburnt
(ten
baggie
did not contain the same number of
corners
in one and
other) supports
thirteen in the
the trial court's inference that someone
addition,
recently
marijuana
had
smoked this
inside the vehicle.
no
other source for the
odor was found in the vehicle.
emphasize
presence
9. We
strong
of the
odor of
emanating
dispositive
from the vehicle is not the sole or
factor estab-
lishing appellant’s guilty knowledge
glove
"
compartment beyond
'many
a reasonable doubt.
It is one of
concur-
”
circumstances,’
may
rent and related
which
lead a rational factfinder
"
”
'irresistibly
guilt
to a conclusion'
in this case. Derr v. Common-
wealth,
(1991) (quoting Stamper,
818).
wealth,
(2010),
controlling
not
Cordon,
very
on the
different facts in this case.
a police
detective
investigating
burglary
interviewed Cordon while
a
Finley
that occurred at a house on
Square
City
Hampton.
Id. at
804. Cordon told the
uncle,
time,
present
detective that his
who was not
at that
owned
house.
Id.
5H Square present, house. Cordon’s uncle was but Cordon was not. Id. at at a police S.E.2d 804. The found cooler in containing cocaine the bedroom that Cordon had identified days as his own two before his interview with the during detective.10 Id.
Reversing possession Cordon’s conviction for of the cocaine cooler, in Supreme found the the Court noted: Cordon was not in the house the bedroom when the or containing cooler the cocaine was discovered. There was no other evidence physical linking Cordon to the cooler or the contraband. The record showed that two had days passed between the time Cordon was known to be at the Finley house and the seizure Square cooler contain- cocaine. he ing While referred to the bedroom as “his” and stated that he was there uncle staying away while his the time of September burglary, Cordon listed his in address as a location Newport News. There was no cooler, item, evidence of of the ownership very portable a and no evidence placed any Cordon at the house at time between the he day received Baer’s business card and the day the search warrant was executed. added).
Id. at
App. *15 relies, the here. distinguishable presented are from facts Burchette, in marijuana was found one of two vehicles owned in this by personal Burchette. Burchette had items vehicle vehicle, it, had near the not inside although and been observed shortly the was discovered. Id. at before evidence, reviewing at 83-84. After this Court possession marijuana reversed Burchette’s conviction for of distribute, in holding pertinent part: with intent to from which presented The Commonwealth no evidence one reasonably occupied could infer that Burchette the vehicle or it had exercised dominion over while the was in it. The evidence failed to show either when present may occupied Burchette have used or the vehicle or when or in long drugs paraphernalia for how or had been it. The evidence failed to show that Burchette was the exclu- vehicle, primary operator possessed sive or of the or that he vehicle, a set to the or when or whom the vehicle keys recently occupied. had been most or The circum- operated infer, reasonably stances were not such that one could to the Burchette, of other that hypotheses, exclusion reasonable as vehicle, the owner of the knew of the nature and presence, in character of the contraband that was found it. added). (emphasis
Id. at
c. Appellant’s Apparent Reluctance to Compartment
Access the Glove testimony The officers’ that appellant reflects did not at- tempt registration to retrieve the vehicle’s from the glove course, compartment where, of eventually officers found — the marijuana despite glove utili- compartment’s obvious — ty “a customary place” as to find a vehicle’s registration. South Dakota v. Opperman, 428 U.S. 96 S.Ct. (1976)
3098,
514 suspects routinely
a access a vehicle’s registration, vehicle’s Va.App. see, compartment, e.g. Hill v. 52 glove 133, (2008); 3, 317, v. 663 S.E.2d 135 Commonwealth 31 Thomas, 715, (1996); 717 Va.App. 23 Wheeler, 1254, (D.C.Cir.2008); 525 1255 United States v. F.3d Maine, (1st Cir.2000); Coombs v. 202 F.3d United (1st Schiavo, Cir.1994), instances, States v. 29 F.3d even here, like the the actually by where vehicle is not owned Williams, 308; at suspect, see Reese, (1st Cir.1975); United 561 F.2d States Scott (4th States, 183, 184 Cir.1966). v. United 369 F.2d Here, however, despite being pro- asked officers to license, registration duce and his driver’s appellant both license, readily provided only the officers with his driver’s suspended. attempt which was He did not even to retrieve from registration glove compartment.12 vehicle’s This access, suggests appellant evidence was reluctant the officers’ presence, glove compartment drugs where the McMillan, were located. Cf. the fact that the
(finding open glove defendant refused to compartment in the drugs subsequently which were found was relevant, a him probative finding guilty factor of cocaine).
Based on this
reluctance to
apparent
open
glove
com-
partment, where the vehicle’s registration
customarily
would
located,
be
Opperman,
515 considered in isolation Again, the illegal substance.13 observe on evidence provide not sufficient perhaps this fact would that the factfinder’s determination support to appeal in the of the substance of the character nature was aware However, all together with considered glove compartment. trial, mounting adds to the presented evidence this fact the trial find- court’s support collection of circumstances ing guilt. of Testimony Self-Serving
d. Appellant’s rejected testimony that obviously The trial court rejected to claim of belong did not him. This innocence, in the to the light when most favorable viewed Commonwealth, prevailing party must since it was the as we “ below, ‘must ... as mere to interpreted fabrication[ ] be [a] ” v. 282, Staton his 36 guilt.’ Va.App. conceal (2001) Rollston v. Common 289, 627, (quoting 630 wealth, see (1991)); 399 830 Va.App. S.E.2d 105, 110 Barnes n. Va.App. (2005) (stating 280 n. that the rational factfinder stan “gives play
dard of review on full appeal responsibility fairly testimony, the trier of fact to resolve conflicts of course, Opperman interpreted, legal duty should not be to create a glove compartment motorists to the vehicle’s when officers for access request registration, which vehicle is not the issue before this Court challenge sufficiency supporting appellant's evidence this to the court, appellate As must view evidence in conviction. an this Court light prevailing party favorable below and this case in most to the any give Commonwealth, party Glenn v. "the benefit reasonable inferences.” (en (2007) (citation (2008). banc) omitted), aff'd, 275 S.E.2d 910 glove compartment access the the officers That did not when presented requested registration the vehicle’s a circumstance consistent knowledge appellant’s guilty with of the located within glove compartment reasonably so a could have rational factfinder —or inferred, totality particular when in this case is the light evidence (as favorable to the Commonwealth viewed most Therefore, below). analysis prevailing party here is to the our limited factfinder made in case when inferences a rational could have light are to the the facts viewed in the most favorable Commonwealth— read, course, (in suggest that a this or and should not be factfinder case) finding any required any specific to infer conclusion. other or *18 evidence, and to draw reasonable inferences from weigh to (citation omitted)). The trial basic facts to ultimate facts” rejected ultimately also and clearly appellant’s equivocal court self-serving testimony recognize that he would not the smell of marijuana:
Q: marijuana? You’re familiar with the smell of Maybe. A:
Q: maybe ‘Tes” or “no”? mean? What’s sometimes, A: That I mean—
Q: marijuana, you when it’s you Sometimes smell know marijuana? No, no, can really. Usually you
A:
not
smell
not
like—
I’m
really.
going
really.
not even
to claim that. Not
Court, following
This
of the United
precedent
States
Court,
Supreme
recognized
“general principle
has
of evi-
dence law that the factfinder is entitled to consider a party’s
dishonesty
a material fact
about
as ‘affirmative evidence of
” Haskins,
guilt.’
at 11 n.
S.E.2d at 407 n. 3
Prods., Inc.,
v.
(quoting
Plumbing
Reeves Sanderson
530 U.S.
(2000)).
133, 147,
2097, 2108,
Here,
120 S.Ct.
Va.App. Here, it is uncontested that the to the key ignition vehicle’s also unlocked the glove compartment. glove compart- ment’s lock provided little security given people several were — Thus, known to use the person vehicle. who put the marijuana in the glove compartment did so knowing that anyone who drove the vehicle would have the ability open the locked glove compartment any reason —and would —for then marijuana, see the readily which was observable the moment the glove compartment opened since it was then plain view as it was not hidden by anything in the glove compartment. Any vehicle, therefore, other driver of the easily could take marijuana from the glove compart- ment.15 circumstances,
Under these the trial court was entitled to highly find it unlikely that someone else simply left the vehicle, regularly permitted 15. appellant Killabrew to use the appellant admitted that used he the car when he needed to run errands. regular very This use of the vehicle is different than a situation where a person person unwittingly leases rental car or where a drives a irregular friend's car on an or one-time basis. had a street value of over marijuana $200—in —which another glove compartment of the car. This inference is pos- supporting finding appellant factor the trial court’s of its nature and charac- marijuana knowledge sessed the with Bowling ter. See (2007) (“[W]hen sufficiency we consider the totality
the evidence ... we review the of the evidence to offense.”). prove determine whether it was sufficient to an Rejection Hypothesis of Innocence circum- Despite the accumulation of these various facts and stances, contends that the trial evidence did not appellant foreclose the that someone other than possibility car, marijuana the odor of marijuana creating used smelled, prior appellant’s taking possession officers it, or that someone other than used before getting appellant. possibil- into the vehicle with Both of these asserts, ities, he explain strong would odor of readily that was discernible the officers without implicating appellant’s guilty knowledge recovered from the glove compartment.
“ ‘The statement that circumstantial evidence must exclude every theory simply reasonable innocence is anoth *20 way stating er of that the Commonwealth has the burden of ” 258, a 41 proof beyond Kelly, Va.App. reasonable doubt.’ at Hudson, 513, 584 at 265 (quoting S.E.2d 447-48 Va. at 578 785). Furthermore, S.E.2d at
“[wjhether
hypothesis
of innocence is reasonable is itself
fact,’
Commonwealth,
‘question
a
of
Va.App.
Emerson v.
43
(2004) (citation
263, 277,
242,
omitted),
597 S.E.2d
249
subject
review, Kelly,
to deferential
41
at
appellate
Va.App.
259,
Haskins,
9,
519
not
a
of elimination that the evidence does
by process
found
Haskins, 44
theory
a reasonable
of innocence.’”
contain
9,
v.
(quoting
at
on
unless
appeal
plainly wrong,” Archer
(1997)
1, 12-13,
if there
Va.App.
S.E.2d
—even
“some evidence to
of innocence.16
support”
hypothesis
Hudson,
reflects
on
evidence,
“
of a
of innocence
rejection
hypothesis
the factfinder’s
no rational factfin
arbitrary
as
unless
‘cannot be overturned
”
(quoting
to that conclusion.’
Id.
Has
der would have come
406).
kins,
factfinder,
Here,
court,
arbitrarily reject
did not
the trial
as
Rather,
of innocence.
as discussed
hypothesis
appellant’s
above,
the trial court to infer
numerous circumstances allowed
marijuana
glove
found in the
knowledge of the
appellant’s
analyze
this Court must view and
these
compartment —and
Hudson, 265
totality,
separately.
in their
not
circumstances
in the record
The evidence sole prior for a two hours to the period approximately vehicle strong traffic and the vehicle emanated the odor of stop, the traffic occurred. the moment stop when From he of the vehicle until the moment he took sole cruiser, placed police in the had exclusive access to including marijua glove compartment, contents of na, immediately upon opening glove which was observable the officers compartment. Although requested appellant’s and the did not registration, appellant driver’s license vehicle’s from the attempt registration glove compart retrieve the ment, (and, registration customarily kept where a vehicle’s course, placed), though where the had been even license, appellant readily provided the officers with his driver’s suspended. totality, which was Viewed its this evidence guilty knowledge was consistent of the mari with juana Moore v. glove compartment. See Common (1997). wealth, addition, defense, in his own denied testifying his, that the worth over and—after some $200 that he could not even equivocation recognize —claimed
521 obviously rejected The trial court this smell of and, therefore, testimony could consider it as self-serving pointing appellant’s guilty knowledge additional evidence marijuana Spangler inside the vehicle. See v. valuable (1948) Commonwealth, 436, 438, 265, 266 50 S.E.2d that, when a defendant to introduce (explaining “proceeds behalf,” case be prosecution’s “may evidence his own evidence”); defendant’s see also Marable v. strengthened by Commonwealth, 505, 509-10, Va.App. 27 500 S.E.2d 235 (1998). Finding
3. Trial Court’s of Possession Not Error Was of all Consequently, based on combined effect trial, presented facts and circumstances which were far significant occupancy more than mere of the vehi- drugs proximity drugs, cle which were found and to those Coward, Va.App. contra 48 633 S.E.2d at we the trial here was not a say judge cannot rational just say as we cannot that no rational factfinder factfinder — beyond this Commonwealth could have found a reasonable appellant constructively possessed doubt that knowledge with of its nature and character.
B. Intent to Distribute marijuana, Without that he conceding possessed also argues the evidence was insufficient to prove that he intended to distribute recovered from the glove compartment. He contends that the evidence possibility did not foreclose the that the pack aged for use. personal disagree appellant’s argu We with ment.
“ ‘Because direct of intent proof distribute [to drugs] impossible, is often it must be shown circumstantial ” 20, 37, evidence.’ VaApp. Welshman v. 28 (1998) (en banc) 130 (quoting Servis v. Com monwealth, 507, 524, (1988)). Va.App. Factors that a trial court may consider as indicators that a defendant intended to illegal drugs pos- distribute the his of a “possession quantity drugs] greater
session include the
[of
use,”
ordinarily
personal
Iglesias
than that
for one’s
possessed
Va.App.
(en
(1988)
banc),
packaging
“the method of
of the controlled
substance,”
any paraphernalia suggestive
and “the absence of
Welshman,
use,”
personal
502 S.E.2d at
*23
testimony,
that of a
famil-
“Expert
usually
police
officer
narcotics,
routinely
iar with
offered to
prove
significance
weight
packaging
drugs regarding
whether it is
Commonwealth,
104,
v.
personal
Va.App.
for
use.” Askew
(2003).
Commonwealth,
Appellant contends
Dukes
(1984),
The Court held in Dukes that mode of “[t]he packaging marijuana] way and the packages [the were hidden are as consistent with personal use as for are they with intent to distribute.” 227 added). Here, at 384 (emphasis marijuana recovered from glove in compartment packaged twenty-three was individ- Natal, baggie ual corners. Officer the Commonwealth’s ex- narcotics, witness on the pert packaging and distribution of testified that he had never before seen an instance where someone possessed twenty-three individual corners of baggie marijuana Thus, for personal use. the evidence in this case proved packaging that the was much more consistent with personal distribution than with use—evidence was not presented to the trial court in Dukes.
Furthermore,
Rice,
in
the defendant’s
of 0.74
“possession
$5,000
cash,
more,”
in
marijuana
ounces
and almost
without
was found insufficient by
support
itself to
his conviction for
possession with intent to distribute “when the evidence also
marijuana
showed that the
was found in one baggie and that
positive
marijuana
himself tested
for
use.” 16 Va.
added).
in
(emphasis
Therefore, neither Dukes nor Rice is in this case. controlling trial plainly wrong finding court here was not that the twenty-three packaging baggie individual corners evinced intent to distribute the
III. Conclusion at the time of the traffic Appellant stop posses- sole possessed key sion of the vehicle and to the glove compart- ment, $200, which contained valued at over at the time strongly same that the vehicle smelled of the distinctive marijuana, odor of which the trial court found had been *24 burnt. recently Appellant attempt made no to retrieve the vehicle’s registration glove compartment from the when asked provide registration to the though readily provided he —even license, his suspended driver’s which was then testified —and marijuana was, at trial that the was not his and that he perhaps, not familiar with the marijuana, smell of which the court, factfinder, trial as did An expert not believe. testified of packaging was inconsistent with personal use. totality
Based on the of the circumstances found record, there was sufficient evidence for a rational factfinder to conclude beyond a reasonable doubt that know- ingly possessed and to find that appellant intended to marijuana. distribute the we affirm Accordingly, appellant’s possession marijuana conviction for with intent to distribute.
Affirmed.
524 ELDER, HUMPHREYS,
ALSTON, J., with whom JJ., HALEY, POWELL, join, dissenting. and scholarly analysis I of the I Although respect majority, present find the Commonwealth failed to sufficient evidence to appellant’s possession knowledge establish with I Accordingly, of its nature and character. would reverse reaching conviction without the merits of his sec- Thus, I from the argument. respectfully majority ond dissent opinion. is clear that the Commonwealth
Virginia’s jurisprudence required prove both exercised dominion marijuana, by and control over the as shown his possession keys glove compartment, to the locked and that he was aware of the and character presence It is majority’s conclusion as to the latter factor with which I agree, by majority cannot as the result reached in this regard controlling is irreconcilable with both precedent, new and old. notes, the majority supra
As
Va.App. (quoting Josephs (1990) (en bane)). Here, parties agree analysis that our guided by principles possession. of constructive Constructive ‘acts, statements, “can be shown or conduct of *25 the accused or other facts or circumstances which tend to presence show that accused was of both the and aware character of the substance and that it subject to his ” Commonwealth, dominion and control.’ v. 44 Haskins Va. (2004) added) 1, 6, 402, 602 404 App. (emphasis (quot- S.E.2d Commonwealth, 723, 735, 42 ing Williams v. (2004) (internal 305, S.E.2d brackets and citation omitted in original)). majority concedes that “mere occupancy proximity,
although
among
totality
factors to be considered
circumstances, are insufficient
alone to
standing
prove
506,
guilty knowledge
illegal drugs.” Supra
defendant’s
of
Commonwealth,
(citing
in order for or ownership occupancy of property or of a vehicle to be sufficient to support the inference that the owner or occupant possessed also contraband that was vehicle, located on the property or or owner occupant must be shown to have exercised dominion and control over the premises and to have known pres- ence, nature, and character the contraband at the time such or ownership occupancy.
Burchette v.
15 Va.App.
(1992)
added)
(emphasis
83-84
(citing Gillis v. Common-
wealth,
298, 301-02,
(1974)).
770-71
Actual or
constructive
alone is not sufficient to
prove that the drug possession
knowing
and intentional.
Young, 275
atVa.
While “occupancy of a vehicle ...
drugs
where illicit
are
found is a
may
circumstance that
be considered together
with
tending
other evidence
prove
occupant
...
vehicle[,]”
exercised dominion and
control over items
it is “insufficient to prove knowing possession of drugs.”
Coward,
48 Va.App.
for
of cocaine because
sufficient evidence that Coward was aware of the
present
cocaine,
in
passenger
nature and character of the
located
immediately
police
and
visible to the
officer who
console
Id.
approached
passenger.
the vehicle which Coward was
car,
White,
at 755.
the driver of the
told
S.E.2d
mother,
belonged
the officer that the car
to White’s
but that
using
evening”
he had been
the car “all
and no one else had
night.
driven or used the vehicle that
Id. at
633 S.E.2d at
Still,
this Court held the Commonwealth did not estab-
circumstances,
lish
facts or
other than
any
occupan-
Coward’s
cocaine,
cy
“necessary
of the car and
to the
to draw
proximity
aware of the
legal
presence
conclusion
Coward was
cocaine,” despite
and character of the
the fact that the cocaine
in plain sight upon
passenger
console of the vehicle.
Id. at
1. The
of Burnt
Odor
First,
on the smell of
majority places great emphasis
The evidence estab-
marijuana emanating from the vehicle.
side of
the officers
the driver’s
approached
lished
when
vehicle,
marijuana coming
they
strong
smelled a
odor of
*27
notes,
majority
judge interpret-
from the car. As the
the trial
marijuana
ed
as
the odor was that of
suggesting
the evidence
smoked,
marijuana. Supra
i.e.
at
that had been
burnt
stated,
trial court
“Either [appellant]
devices, previously marijuana or remnants of smoked were found in the apparently car.
The record does not show that the odor was that of fresh marijuana, might which indicate that had at least appellant reason to the suspect marijuana.17 vehicle contained fresh majority The dismisses the of the distinction be- importance marijuana tween the smell of fresh and the smell of burnt marijuana by that all the evidence in noting simply “viewing light the most favorable to the Commonwealth ... the trial finding appellant court’s that had guilty knowledge of the marijuana in the glove compartment strengthened by the trial court’s finding concerning marijuana odor.” Supra notes, majority marijuana 17. "It is axiomatic that burnt must originate marijuana." Supra as unburnt n. S.E.2d at 142 true, may n. 8. While that be had Commonwealth the burden to prove appellant particular marijuana. was aware of this The existence necessarily responsible of an odor does not establish who is for the event, any possession marijuana odor. In the constructive odor is not a crime in our Commonwealth. I cannot conclude that the Com- proof by establishing monwealth met the burden of in this case vehicle smelled like burnt However, majority gives at 141. no infer, why reasonably reason the trial court could based on the marijuana, smell of burnt was aware of fresh glove compartment. Evidence of the smell of a simply provide burnt does not nexus from which the trial court could conclude knew of the fresh glove compartment. of its that in support holding, majority Young, *28 York, 100-01, 498, from Florida to New id. at at S.E.2d in the trunk Josephs’ luggage pounds was next to 130 of 499, marijuana, id. at 390 S.E.2d at and when ques- “[sjaid tioned about the marijuana, Josephs she didn’t know about the time drugs. I’ve driven with that stuff.” Id. [First] 100, Thus, at at drug’s while a distinctive may odor be circumstantial evidence that can support a find- ing that the defendant of knew the nature and character of the
substance in his in possession, Young the Court did not fact, suggest dispositive. this factor was the Young Court stated, explicitly
In Josephs,
ample
there was
circumstantial evidence to
support the trial court’s conclusion that the defendant was
the
aware of
nature and character of the
that
drugs
she
jointly possessed, and it was
for the
unnecessary
Court of
Appeals
rely
guilty knowledge
on an inference of
based
possession
on
alone.... Countless
can
scenarios
be envi-
in which
may
sioned
controlled substances
be
in the
found
a
possession
person
entirely
who is
unaware
their
of
nature and character.
added).
592,
(emphasis
at
Young,
case,
in
the defendant
her
significantly,
Josephs
Most
the
of the substance
own statement conceded that she was aware
that it was the first time she had “driven
acknowledged
as she
at
390 S.E.2d at
Josephs,
with that stuff.”
majority’s
I
with the
conclusion
respectfully disagree
498.18
strong
that
and
Josephs supports
proposition
“[t]he
drug provided
significant
distinctive odor of the
a
indication to
majority
Josephs'
18. The
states that the use of
statement
actually
significant
Supreme
factor in the
Court’s decision in
Young
partially
opinion
Josephs
in
overrule this Court’s
—to
possession
drug
Josephs
extent that
had held that bare
of a controlled
(which Josephs
arresting
had conceded in her statement to the
officer
discovered)
gave
guilty
after the
rise to an inference of
knowledge
drug.
of the
majority
Supra at
at 141
507 n.
704 S.E.2d
n. 6. While the
is correct
Josephs
part by Young,
was overruled in
Appeals
at
considering
it
the basis that
had erred
was not on
the Court of
police.
Josephs'
to the
statement
First,
majority’s
Josephs'
characterization of
statement as one
merely conceding possession
marijuana, supra
of the
at 507-08 n.
Appeals
S.E.2d at 141.
the smell
from the trunk
marijuana,
that
apparently
of the car was
of fresh
the same
contrast,
found in the
in
marijuana
form of
trunk.
the case
bar,
in
marijuana
provided
the smell of burnt
the vehicle
no
marijuana
indication that fresh
could also
found in the car.
be
majority
also relies
the trial
upon
finding
court’s
that
marijuana
recently
the officers smelled
that had been
smoked
in
by appellant
appellant
or someone
the car with him and that
possession
had taken
of the vehicle approximately two hours
508-09,
stop. Supra
before the traffic
at 141-
conclude,
42. Even if the trial court was entitled to
based on
testimony
strength
officers’
about the
of the smell of the
smoked,19
marijuana,
that it had been “recently”
this does not
necessarily
support
holding
that
was aware of
marijuana
the character and nature of the
in the glove com-
Appeals'
Josephs
"[pjossession
Court of
statement in
that
of a con-
gives
drug
trolled
knowledge
rise to an inference of the defendant's
character,”
imply
its
insofar as that statement can be read to
more,
possession,
may
proof, beyond
bare
without
furnish
a reason-
doubt,
guilty knowledge.
able
of the essential element of
(internal
omitted) (alterations
Id. at
Possession of the
to the Glove
Next,
majority
person
notes that
was the sole
glove compartment containing
with means to access the
Furthermore,
Ziploc bags
majority
of
states that "the fact that
baggie
marijuana did
corners
unbumt
not contain the same number
(ten
other) supports
in one and thirteen
the trial court’s inference
recently
marijuana inside the vehicle.”
that someone had
smoked this
Supra at
n.
the Glove
Further,
majority
the
notes that appellant
attempt
did not
to produce
registration
the vehicle’s
and cites this failure as
evidence
was aware of the
glove compartment.
513-15,
Supra
Despite
majority’s
reliance on South Dakota v. Opper
man,
364, 372,
428 U.S.
96 S.Ct.
533
ment,
customary place
ownership
since it is a
for documents of
registration,
place
temporary storage
as well as a
for the
(citation omitted). Likewise,
majority
Id.
of valuables.”
only
cases in which the facts established
that the defen
cites
dant accessed the vehicle’s
glove compartment
produce
313,
Hill v.
52
registration.
Va.App.
vehicle’s
317,
(2008); Williams,
728,
133,
42 Va.App.
135
Thomas,
308;
598,
594 S.E.2d at
Commonwealth v.
23
(1996);
Wheeler,
v.
United States
(D.C.Cir.2008);
Maine,
F.3d
Coombs v.
202 F.3d
(1st
Schiavo,
Cir.2000);
United States v.
29 F.3d
(1st
(1st
Cir.1994);
Reese,
561 F.2d
United States
(4th
Cir.1975);
States,
Scott v. United
369 F.2d
Cir.1966).
respect,
With all due
these cases do not
provide
basis for the
reliance on
failure
majority’s
to access
glove
as
compartment
guilty knowledge.
evidence of his
majority
interpreting
contends
it is not
Opperman
*32
legal duty
to create a
for motorists to
a
glove
access vehicle’s
compartment when
request
registration;
officers
vehicle
in-
stead, the majority
simply giving
states it is
the benefit of
reasonable inferences to the
Supra
Commonwealth.
at 515 n.
13,
However,
Although appellant did not access the glove compartment here, there prevailing legal justification was no for the trial court to infer that he had knowledge glove compart ment’s equally susceptible contents. Where a fact “is of two interpretations one of which is consistent with the innocence accused, trier of cannot arbitrarily adopt [the fact] interpretation which incriminates him.” Corbett v. Common wealth, 304, (1969) (internal 171 S.E.2d omitted). fact, quotation presented Commonwealth no to suggest appellant any evidence made motion toward the vehicle, glove compartment police stopped as or that in appellant engaged any other behavior that would indicate drugs he knew there were glove compartment.21 locked nervous, There appellant appeared was no evidence that fact, the officers that appellant entirely cooper- testified throughout stop. ative I cannot reach the conclusion that these facts support appellant’s culpability somehow instance.
4. “Abandonment” of Valuable Contraband “ notes, majority The also are a ‘drugs commodity signifi- value, unlikely cant to be or carelessly abandoned left an ” Supra area.’ (quoting 704 S.E.2d Ward v. 47 Va.App. 753 n. (2006)); n. 4 accord Brown v. (en (1992) banc). However, in the instant
case, there is no indication that the was “abandoned or carelessly left.” On the contrary, fact that the drugs were secured a locked glove compartment could suggest drugs’ owner attempted to secure and hide Thus, from the view of others. this factor does not support a finding that appellant knew the nature and character of the marijuana found in the car.
5. Appellant’s “Self-Serving” Testimony Finally, the majority upon relies appellant’s “equivocal” testimony that he would not recognize the smell of states, majority 21. The The officers asked for his driver’s license and for the registration. license, Appellant gave vehicle’s the officers his driver’s suspended, produce which any registration. but did not *33 appellant attempted record does not indicate that ever to look for the (or it), registration help simply the officers locate but instead he told the officers that the vehicle was not his.
Supra
testimony by
Q: maybe ‘Tes” or “no”? What’s sometimes, I mean— A: That marijuana, you know it’s
Q: you when smell Sometimes marijuana? No, no, can smell not really. Usually you
A: not like— really. I’m to claim that. Not really. going not even as majority “appellant’s characterizes these statements could, he and then that he equivocal testimony perhaps not, marijuana” could the smell of and states that recognize appellant’s dishonesty the trial court was entitled to consider guilt. Supra as affirmative evidence of at 145-46.
However,
may
initial statement that he
be famil
appellant’s
“No,
iar with the smell of
followed
statement
statements,
really”
change
not
does not amount to a
first
suggesting
that he is familiar with the smell of
and
stating
“Maybe”
then
that he is not.
is defined as both
“uncertainty.”
Collegiate
Merriam-Webster’s
“perhaps”
(Frederick
ed.2005).
eds.,
Dictionary 767
C. Mish et al.
11th
Thus, appellant’s
conveyed appel
initial answer could have
his
uncertainty
knowledge
lant’s
about
own
the smell
marijuana,
“perhaps
recognize
not a statement that
he could”
testimony
Although appellant’s
smell
capable
interpretations, again,
equally
of two
“where a fact is
susceptible
interpretations
of two
one of which is consistent
accused,
with the innocence of the
trier of
cannot
[the
fact]
arbitrarily adopt
interpretation
which incriminates him.”
(alteration
Corbett,
Furthermore, assuming judge correctly even the trial deter- mined familiar appellant with smell appellant’s equivocal testimony, based on there was no evi- presented by suggesting dence the Commonwealth *34 familiarity proved with that smell that he had smoked mari- vehicle, in juana or knew the vehicle contained fresh marijuana at the time he the vehicle. occupied inference that trial can
Any court draw from testimony on this issue is also not in dispositive determining appellant’s knowledge presence of the and character of the Court, this matter was in pending While Supreme Virginia Court of issued its in decision Cordon v. (2010). S.E.2d 803 holding only is, Cordon is not instructive our analysis; it view, in my controlling.
A review of the salient facts and
circumstances Cordon is
Cordon,
helpful
analysis
to the
In
this case.
the defendant
charged
with possession
police
of cocaine after
found a
cocaine,
containing
cooler
two
bags
powder
numerous bag-
gies,
drug
in a
paraphernalia
bedroom the defendant had
previously identified as “his” bedroom in a house
owned
defendant’s uncle. Id. at
S.E.2d at 804.
addition
cooler,
to the
the police also found “some checks and some
papers and stuff’ containing the defendant’s name.
Id. They
also found a business card of a police officer in the bedroom.
Id. at
In reversing Cordon’s
conviction of
with intent to
cocaine,
distribute
the Supreme
Virginia
Court of
held that the
Commonwealth failed to present evidence sufficient to show
that the defendant “knew that cocaine
inwas
the cooler in the
subject
bedroom and that it was
to his domain and control.”
Id. at
22. The trial court found
somebody
car who was
marijuana]
recently just
in the
or he had
had
court,
best,
statement,
smoking
the trial
it...." Based on that
testimony
he did not know the
implied
it disbelieved
However,
acknowledges,
majority
it never
as the
smell of
found,
fact,
was
explicitly
it
as a matter of
stated that
guilt.
lying
his
to conceal
grounds
distinguish
that the
majority
Cordon on
23. seeks
when the cooler
in that case was not in the residence
defendant
511-12,
containing
Supra at
704 S.E.2d at
the cocaine was discovered.
difference, however,
distinguish Cordon
is insufficient to
143. This
case,
proximity
substance
present
as it elevates
to a controlled
from the
is found
occupancy
premises on which a controlled substance
or
Maxwell,
appropriate
See
275 Va. at
beyond
under the law.
what is
(“[W]hile
proximity
a
to be considered
factor
marijuana found
the glove compartment
in the car are not
majority
distinguish
attempts
implying
also
by
to
Cordon
that the
stronger
Commonwealth's case in the case at bar is
than
in Cordon
pointing
because the "written statement
to Cordon's maintenance
aof
residence,
separate
along
distinguish-
with other circumstances
are
case,
innocence,”
supported
able from
hypothesis
this
Cordon’s
of
16,
16,
supra at 519 n.
704
147 n.
S.E.2d at
unlike the evidence in this
implicit
evidentiary obligation imposed upon
case. This
theoretical
the
appellant
proof placed upon
the
shifts
burden of
the Commonwealth in
case,
proof
a criminal
as it
upon
"[t]he
is
burden of
the state in a
"
case,"
prove
‘beyond
every
criminal
to
a reasonable
...
doubt
fact
necessary to constitute
the crime with which [the defendant]
is
”
Hudson,
512,
charged,'
505,
Commonwealth v.
265 Va.
781,
(2003)
added)
(emphasis
358,
(quoting
Winship,
In re
397 U.S.
(1970)),
90 S.Ct.
It is the Snyder v. Common the verdict.” support which tends to (1961). How wealth, 1009, 1016, 121 S.E.2d 202 Va. ex cannot be overborne ever, of innocence presumption beyond a reasonable doubt. appellant’s guilt cept by proof S.E.2d Miller v.
(1943).
any fact neces
prove
fails to
If the Commonwealth
offense,
then the evidence
an element of
sary
support
the conviction. See
support
a matter
law
insufficient as
Maxwell,
502-03.
657 S.E.2d at
cir
rests on
necessarily
“Proof of constructive
thus,
circumstances
evidence;
necessary
‘all
cumstantial
guilt and inconsistent with
must be consistent with
proved
of inno
every
hypothesis
reasonable
innocence and exclude
” Burchette,
434, 425
at 83
cence.’
*37
Commonwealth,
182, 184,
225
300
v.
Va.
(quoting Garland
Commonwealth,
(1983));
v.
783,
accord Coleman
S.E.2d
784
(1983);
275
53,
864,
Young,
see also
31,
307 S.E.2d
876
226 Va.
which
592,
Circumstantial evidence
(2009) (quoting
Commonwealth,
Rogers
307,
v.
242
317,
(1991)).
410 S.E.2d
627
Even if it were probable from
these facts that appellant was aware of the nature and charac-
ter of the marijuana, “probability of guilt is insufficient to
warrant a
Burchette,
criminal conviction.”
Suspicious circumstances “no matter how grave or strong, proof are not of guilt sufficient to a support verdict of guilty.
The actual commission of the
by
crime
the accused must be
shown
beyond
evidence
a reasonable doubt to sustain his
[Crisman,
conviction.”
Id. at
Controlling
acts, statements,
conduct
appel-
or
there must have been
law,
that, as a matter
lant,
facts or circumstances
or other
presence
and character
he was aware of both
tend to show
exculpate
proposition suggesting that
authority for the
cites no
admit that the
upon Killabrew to
it was somehow incumbent
glove compartment was hers. The evidence
found
time,
had,
marijua-
somebody
unidentified
smoked
simply
at some
na in the car.
of the substance and that
it
subject
to his dominion and
Haskins,
*39
control.
Va.App.
404;
602 S.E.2d at
Williams,
Thus, I would conclude that law, as a matter of the evidence is insufficient to find appellant guilty of possession of marijua- na. reasons, For the foregoing I join cannot in the majority’s conclusion, and I respectfully dissent from its holding.
Court Appeals Virginia, Richmond.
Jan.
notes
Supreme
explained
“drug’s
Court
that a
distinctive odor”
may
support
be circumstantial evidence that can
finding
the defendant knew of the nature and character of the sub-
stance in
possession.
his