ERVIN v. Commonwealth Of Va., 0861-09-1

CitationNo. 0861-09-1
Case DateJune 22, 2010
CourtCourt of Appeals of Virginia


No. 0861-09-1

Court of Appeals of Virginia

JUNE 22, 2010

Jessica M. Bulos, Assistant Appellate Defender (Office of the Appellate Defender, on briefs), for appellant.

Jennifer C. Williamson, Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.


Present: Judges Beales, Powell and Alston Argued at Richmond, Virginia



Von L. Piersall, Jr., Judge Designate


Samuel A. Ervin (appellant) appeals from his conviction for possession with intent to distribute marijuana, in violation of Code § 18.2-248.1. On appeal, appellant contends the evidence was insufficient to prove he possessed marijuana found in the locked glove compartment of the vehicle he was driving, but did not own. Appellant also contends the evidence was insufficient to prove he had the requisite intent to distribute the marijuana. For the reasons that follow, we hold the evidence was insufficient, as a matter of law, to prove appellant possessed the marijuana. Accordingly, we reverse appellant's conviction without reaching the merits of appellant's second argument.


On appeal, "we review the evidence in the 'light most favorable' to the Commonwealth." Pryor v. Commonwealth, 48 Va. App. 1, 4, 628 S.E.2d 47, 48 (2006) (quoting Commonwealth v.

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Hudson, 265 Va. 505, 514, 578 S.E.2d 781, 786 (2003)). "Viewing the record through this evidentiary prism requires us to 'discard the evidence of the accused in conflict with that of the Commonwealth, and regard as true all the credible evidence favorable to the Commonwealth and all fair inferences to be drawn therefrom.'" Cooper v. Commonwealth, 54 Va. App. 558, 562, 680 S.E.2d 361, 363 (2009) (quoting Parks v. Commonwealth, 221 Va. 492, 498, 270 S.E.2d 755, 759 (1980) (emphasis omitted)).

So viewed, the evidence showed that on February 29, 2008, at approximately 8:20 p.m., Portsmouth Officers D.J. O'Brien and R. Rad stopped a vehicle being driven by appellant after the officers observed a traffic violation.1 There were no other occupants in the car. As the officers approached the driver's side of the vehicle, they smelled a strong odor of marijuana coming from the car. There was no evidence that the odor detected by the officers was coming from appellant's person. Officer O'Brien asked for appellant's license and registration. Appellant turned over his license but explained that he did not have the vehicle's registration because the car belonged to his daughter's mother. Appellant also told the officers that his license was suspended. From the information supplied by appellant and the vehicle's license plate, Officer O'Brien confirmed appellant's license was suspended and the vehicle was not registered to appellant.

Based on the smell of marijuana emanating from the vehicle, the officers took appellant into custody and searched the vehicle for evidence of marijuana and for the vehicle's registration. Officer Rad removed the vehicle's ignition key and used the key to unlock the glove compartment. In the glove compartment, the officers immediately observed two Ziploc

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bags containing what was later determined to be marijuana. One of the bags held ten small, knotted plastic bag corners of fresh marijuana. The other bag contained thirteen knotted plastic bag corners of fresh marijuana. The officers did not recover any smoking devices or other drug paraphernalia from appellant or the vehicle.

At trial, Officer Francisco Natal, who was accepted as an expert on the packaging and distribution of narcotics, testified that the marijuana found inside the glove compartment had a street value of over $200. Officer Natal testified that the packaging of this quantity of marijuana, in his opinion, was inconsistent with personal use. Furthermore, Officer Natal testified that he had never seen an instance where someone possessed twenty-three individual baggie corners of marijuana for personal use.

At trial, appellant again stated that the vehicle belonged to his daughter's mother, Tiffany Killabrew. 2 Killabrew testified that it was her "secondary car," which she would allow other people to drive, including appellant, her brother, and her sister. Killabrew testified that appellant took possession of the vehicle between 6:00 and 7:00 p.m. on the evening of February 29, 2008.

Appellant testified that he was unaware of the marijuana locked in the vehicle's glove compartment. He denied the marijuana belonged to him, and denied having any intent to use or

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distribute the marijuana. Appellant indicated that he could "possibly" recognize marijuana if he saw it but that he was "maybe," but "not really," familiar with the smell of marijuana.3

After denying appellant's motions to strike the evidence as insufficient, the trial court found appellant guilty of possession with intent to distribute marijuana and driving on a suspended license.4 In reaching its decision, the court noted,

[E]ither [appellant] had been smoking [the marijuana] or he had recently just had somebody in the car who was smoking it, or at least that's the conclusion that the Court can draw from this evidence.

The only testimony is [appellant] used the car and he was in the car when there was marijuana being used, as least I think you can infer that from the evidence, and he had the key to where the marijuana was locked in the glove compartment. Perhaps other people were in the car, perhaps other people knew about the marijuana, [but] that doesn't provide a defense for this odor. (Emphasis added).


Appellant contends the evidence was insufficient to convict him of possession of marijuana because the Commonwealth did not prove, beyond a reasonable doubt, that he was aware of the presence and character of the marijuana found in the vehicle's locked glove compartment.

When the sufficiency of the evidence at trial is challenged on appeal, "a reviewing court does not 'ask itself whether it believes that the evidence at the trial established guilt beyond a

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reasonable doubt.'" Crowder v. Commonwealth, 41 Va. App. 658, 663, 588 S.E.2d 384, 387 (2003) (quoting Jackson v. Virginia, 443 U.S. 307, 318-19 (1979)). "We must instead ask whether 'any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt."" Id (quoting Kelly v. Commonwealth, 41 Va. App. 250, 257, 584 S.E.2d 444, 447 (2003) (en banc) (second emphasis added)). "This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Jackson, 443 U.S. at 319. However, the presumption of innocence cannot be overborne except by proof of appellant's guilt beyond a reasonable doubt. Miller v. Commonwealth, 181 Va. 906, 907, 27 S.E.2d 57, 57 (1943). If the Commonwealth fails to prove any fact necessary to support an element of the offense, then the evidence is insufficient as a matter of law to support the conviction. Maxwell v. Commonwealth, 275 Va. 437, 441, 657 S.E.2d 499, 502 (2008).

To sustain a conviction for possession of marijuana, "[t]he Commonwealth was required to prove that [appellant] 'intentionally and consciously possessed' the [marijuana], either actually or constructively, with knowledge of its nature and character." Wilkins v. Commonwealth, 18 Va. App. 293, 298, 443 S.E.2d 440, 444 (1994) (citations omitted); accord Young v. Commonwealth, 275 Va. 587, 591, 659 S.E.2d 308, 310 (2008). In this case, the parties agree that our analysis is guided by principles of constructive possession. Constructive possession "can be shown by 'acts, statements, or conduct of the accused or other facts or circumstances which tend to show that the accused was aware of both the presence and character of the substance and that it was subject to his dominion and control.'" Haskins v. Commonwealth, 44 Va. App. 1, 6, 602 S.E.2d 402, 404 (2004) (quoting Williams v. Commonwealth, 42 Va. App. 723, 735, 594 S.E.2d 305, 311 (2005) (emphasis added) (internal brackets and citation omitted)).

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"Proof of constructive possession necessarily rests on circumstantial evidence; thus, 'all necessary circumstances proved must be consistent with guilt and inconsistent with innocence and exclude every reasonable hypothesis of innocence.'" Id. at 434, 425 S.E.2d at 83 (quoting Garland v. Commonwealth, 225 Va. 182, 184, 300 S.E.2d 783, 784 (1983)); accord Coleman v. Commonwealth, 226 Va. 31, 53, 307 S.E.2d 864, 876 (1983); see also Young, 275 Va. at 592, 659 S.E.2d at 311. Circumstantial evidence which creates only a "'[s]uspicion of guilt, however strong, or even a probability of guilt, is insufficient to support a conviction.'" Finney v. Commonwealth, 277 Va. 83, 88, 671 S.E.2d 169, 172 (2009) (quoting Rogers v. Commonwealth, 242 Va. 307, 317, 410 S.E.2d 621, 627 (1991)). "If, after [the court resolves all conflicts in the evidence], the evidence of guilt or innocence remains anywhere near equipoise-that is, the facts are 'equally susceptible to two or more constructions'-then reasonable doubt exists as a matter of law." Haskins, 44 Va. App. at 9, 602...

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