Ervin v. Commonwealth of Va.., Record No. 0861–09–1.

• Decision Date: 25 January 2011
• Docket Number: Record No. 0861–09–1.
• Parties: Samuel A. ERVINv.COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

57 Va.App. 495

704 S.E.2d 135

Samuel A. ERVIN

v.COMMONWEALTH of Virginia.

Record No. 0861–09–1.

Court of Appeals of Virginia, Richmond.

Jan. 25, 2011.

Gregory K. Matthews, Portsmouth, (Jessica M. Bulos; Office of the Public Defender, on brief), for appellant.Jennifer C. Williamson, Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.Present: FELTON, C.J., and ELDER, FRANK, HUMPHREYS, KELSEY, McCLANAHAN, HALEY, PETTY, BEALES, POWELL and ALSTON, JJ.

UPON A REHEARING EN BANC

BEALES, Judge.

Samuel A. Ervin (appellant) was convicted of possession of marijuana with intent to distribute, in violation of Code § 18.2–248.1. ¹ Appellant argues on appeal that the evidence at trial was insufficient to prove beyond a reasonable doubt 1) that he constructively possessed the marijuana with knowledge of its nature and character and 2) that he possessed it with the requisite intent to distribute. A divided panel of this Court held that the evidence was insufficient to prove that appellant had guilty knowledge of the marijuana.² See Ervin v. Commonwealth, No. 0861–09–1, 2010 WL 2482314, 2010 Va.App. LEXIS 249 (Va. Ct.App. June 22, 2010). We granted the Commonwealth's petition for rehearing en banc and stayed the mandate of the panel's decision. On rehearing en banc, we now lift the stay and affirm appellant's conviction for possession of marijuana with intent to distribute for the reasons stated below.

I. Background

“Applying familiar principles of appellate review, we will state the facts in the light most favorable to the Commonwealth, the prevailing party at trial.” Williams v. Commonwealth, 278 Va. 190, 191, 677 S.E.2d 280, 281 (2009).

On February 29, 2008, at 8:20 p.m., Portsmouth Officers O'Brien and Rad stopped a vehicle being driven by appellant after the officers observed a traffic violation.³ Appellant was the sole occupant of the vehicle. Neither officer observed him make any furtive movements during their observations of him. However, as the officers approached the vehicle, “a strong odor of marijuana” was discernible through the car's open windows.

The officers asked appellant for his driver's license and for the vehicle's registration. Appellant gave the officers his driver's license, which was suspended, but did not produce any registration. The record does not indicate that appellant ever attempted to look for the registration (or help the officers locate it), but instead he simply told the officers that the vehicle was not his.

After detecting the strong odor of marijuana coming from the vehicle and after determining that appellant's driver's license was suspended, the officers took appellant into custody and placed him in the police cruiser. The officers then searched the vehicle both for the source of the strong odor of marijuana and for the vehicle's registration. Using the key that was in the vehicle's ignition, Officer Rad unlocked the glove compartment. The officers immediately observed two Ziploc bags inside the glove compartment. One of the Ziploc bags held ten knotted plastic bag corners (“baggie corners”) containing marijuana, and the other Ziploc bag held thirteen baggie corners containing marijuana. No smoking devices or drug paraphernalia were found inside the vehicle or in appellant's possession.

The vehicle belonged to Tiffany Killabrew, the mother of appellant's daughter. It was Killabrew's “secondary car,” which she loaned to various people, including appellant, her brother, and her sister. Killabrew testified that appellant borrowed the vehicle sometime between 6:00 and 7:00 p.m. on February 29, 2008.⁴

[704 S.E.2d 138 , 57 Va.App. 501]

At trial, Officer Francisco Natal, 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 explained that, in his expert opinion, the packaging of this quantity of marijuana was inconsistent with personal use. Furthermore, Officer Natal testified that he knew of no instance where someone possessed twenty-three individual baggie corners of marijuana for personal use.

Appellant testified in his own defense, denying ownership of the marijuana. When asked on cross-examination whether he was familiar with the smell of marijuana, appellant initially replied, “Maybe.” When asked to clarify his answer, appellant then testified, “No, not really. Usually you can smell like—no, not really. I'm not even going to claim that. Not really.”

The trial court denied appellant's motions to strike and found appellant guilty of possession with intent to distribute, noting that “either [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 trial court continued:

Well, his girlfriend whose car it was, took the stand and didn't claim any ownership of it. Her only testimony was he used the car regularly and other people did too, so we don't know who those other people are, they're not here, they haven't offered any testimony that they used the car.

The only testimony is Mr. Ervin used the car and he was in the car when there was marijuana being used, at 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.

The trial court also explained that the manner in which the marijuana was packaged proved that appellant possessed the marijuana with intent to distribute it.

II. Analysis

When the sufficiency of the evidence to support a conviction is challenged on appeal, “a reviewing court does not ‘ask itself whether it believes that the evidence at the trial established guilt beyond a 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, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979)). “Viewing the evidence in the light most favorable to the Commonwealth, as we must since it was the prevailing party in the trial court,” Riner v. Commonwealth, 268 Va. 296, 330, 601 S.E.2d 555, 574 (2004), “[w]e must instead ask whether ‘ any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt,’ ” Crowder, 41 Va.App. at 663, 588 S.E.2d at 387 (quoting Kelly v. Commonwealth, 41 Va.App. 250, 257, 584 S.E.2d 444, 447 (2003) (en banc)). See also Maxwell v. Commonwealth, 275 Va. 437, 442, 657 S.E.2d 499, 502 (2008). “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, 99 S.Ct. at 2789.

Indeed, as we are an appellate court considering the sufficiency of the evidence on appeal, we must review the trial court's factfinding “ ‘with the highest degree of appellate deference.’ ” Noakes v. Commonwealth, 54 Va.App. 577, 586, 681 S.E.2d 48, 52 (2009) (en banc) (quoting Thomas v. Commonwealth, 48 Va.App. 605, 608, 633 S.E.2d 229, 231 (2006)), aff'd, 280 Va. 338, 699 S.E.2d 284 (2010); see McMillan v. Commonwealth, 277 Va. 11, 18–19, 671 S.E.2d 396, 399 (2009) (“We have stated that ‘[o]n appeal, great deference is given to the factfinder who, having seen and heard the witnesses, assesses their credibility and weighs their testimony.’ ” (quoting Young v. Commonwealth, 275 Va. 587, 590–91, 659 S.E.2d 308, 310 (2008))). We may not “ ‘substitute our judgment for that of the trier of fact,’ ” Wactor v. Commonwealth, 38 Va.App. 375, 380, 564 S.E.2d 160, 162 (2002) (quoting Commonwealth v. Presley, 256 Va. 465, 466, 507 S.E.2d 72, 72 (1998)), nor may we “reweigh the evidence,” Nusbaum v. Berlin, 273 Va. 385, 408, 641 S.E.2d 494, 507 (2007), because we have no authority “to preside de novo over a second trial,” Haskins v. Commonwealth, 44 Va.App. 1, 11, 602 S.E.2d 402, 407 (2004). We must defer, instead, to the factfinder's responsibility “ ‘to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.’ ” Abdullah v. Commonwealth, 53 Va.App. 750, 755, 675 S.E.2d 215, 218 (2009) (quoting Jackson, 443 U.S. at 319, 99 S.Ct. at 2789). As the Supreme Court recently stated in Sullivan v. Commonwealth, 280 Va. 672, 701 S.E.2d 61 (2010), this deference to the factfinder's determinations “applies not only to findings of fact, but also to any reasonable and justified inferences the fact-finder may have drawn from the facts proved.” Id. at 676, 701 S.E.2d at 63–64.

Therefore, under this highly deferential standard of review on appeal, “[t]he judgment of the trial court is presumed to be correct and will be reversed only upon a showing that it is ‘plainly wrong or without evidence to support it.’ ” Viney v. Commonwealth, 269 Va. 296, 299, 609 S.E.2d 26, 28 (2005) (quoting Code § 8.01–680); see also Burks v. United States, 437 U.S. 1, 17, 98 S.Ct. 2141, 2150, 57 L.Ed.2d 1 (1978) (stating that appellate reversal on grounds of insufficient evidence “will be confined to cases where the prosecution's failure is clear”). “Practically speaking, this means [the trial court's] decision cannot be disturbed on appeal unless no ‘rational trier of fact’ could have come to the conclusion it did.” Seaton v. Commonwealth, 42 Va.App. 739, 746, 595 S.E.2d 9, 12–13 (2004) (emphasis added) (citing Kelly, 41 Va.App. at 257, 584 S.E.2d at 447).

A. Possession of the Marijuana

Appellant argues that the evidence at trial failed to establish beyond a reasonable doubt that he knowingly possessed the marijuana in the vehicle's glove compartment. When considering this issue, the parties agree that the principles of constructive possession are applicable here. Addressing these familiar principles, the Supreme Court of Virginia has held:

In a prosecution for possession of a controlled...