Opinion
Record No. 0861-09-1.
June 22, 2010, July 27, 2010.
Appeal from the Circuit Court of the City of Portsmouth, Von L. Piersall, Jr., Judge Designate Circuit Court Nos. CR08001054-01 and CR08001054-02.
Upon a Petition for Rehearing En Banc.
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.
Before Chief Judge Felton, Judges Elder, Frank, Humphreys, Kelsey, McClanahan, Haley, Petty, Beales, Powell and Alston.
MEMORANDUM OPINION BY
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
On July 6, 2010 came the appellee, by the Attorney General of Virginia, and filed a petition requesting that the Court set aside the judgment rendered herein on June 22, 2010, and grant a rehearing en banc on the issue(s) raised in the petition.
On consideration whereof, the petition for rehearing en banc is granted with regard to the issue(s) raised therein, the mandate entered herein on June 22, 2010 is stayed pending the decision of the Court en banc, and the appeal is reinstated on the docket of this Court.
The parties shall file briefs in compliance with Rule 5A:35. The appellant shall attach as an addendum to the opening brief upon rehearing en banc a copy of the opinion previously rendered by the Court in this matter. It is further ordered that the appellee shall file twelve additional copies of the appendix previously filed in this case. In addition, any party represented by counsel shall file twelve electronic copies of their brief (and the appendix, if the party filing the appendix is represented by counsel) with the clerk of this Court. The electronic copies must be filed on twelve separate CDs or DVDs and must be filed in Adobe Acrobat Portable Document Format (PDF).
The guidelines for the creation and submission of a digital brief package can be found at www.courts.state.va.us, in the Court of Appeals section under "Resources and Reference Materials."
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.
I. BACKGROUND
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) (quotingCommonwealth v. 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) (quotingParks 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. 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.
At trial, Officer O'Brien testified that she stopped appellant because the vehicle had a non-functioning rear license plate light. Appellant moved to suppress the fruits of the search resulting from this traffic stop. The trial court denied the motion to suppress, and appellant did not appeal this ruling. Therefore, on appeal to this Court, appellant challenges only the sufficiency of the evidence supporting the conviction.
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 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. 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 called Killabrew as a witness during the suppression hearing, which was held immediately before the bench trial on the distribution indictment. The trial court described this testimony as "just for the suppression" issue. However, in arguing against appellant's initial motion to strike the evidence, the Commonwealth specifically referenced this testimony, without any objection from appellant. At the conclusion of the trial, the court clearly and explicitly referenced Killabrew's testimony as evidence that the court considered in reaching its verdict. Appellant did not object to these references to Killabrew's testimony by the trial court or by the prosecutor, nor did he challenge the trial court's consideration of Killabrew's testimony in a question presented on appeal to this Court. Moreover, appellant's own defense counsel alluded to Killabrew's testimony during the initial motion to strike the evidence. For all of these reasons, we are not constrained from considering Killabrew's testimony in determining the sufficiency of the evidence on appeal. See Rules 5A:12; 5A:18.
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 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.
When asked whether he was familiar with the smell of marijuana, appellant replied, "Maybe," but then stated, "No not really. Usually you can smell like — no, not really. I'm not even going to claim that. Not really."
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. In reaching its decision, the court noted,
Appellant's conviction for driving on a suspended license, in violation of Code § 46.2-301, is not at issue on appeal.
[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).
II. ANALYSIS
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 reasonable doubt.'" Crowder v. Commonwealth, 41 Va. App. 658, 663, 588 S.E.2d 384, 387 (2003) (quotingJackson 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) (quotingWilliams v. Commonwealth, 42 Va. App. 723, 735, 594 S.E.2d 305, 311 (2005) (emphasis added) (internal brackets and citation omitted)).
"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 S.E.2d at 406 (citingFeigley v. Commonwealth, 16 Va. App. 717, 724, 432 S.E.2d 520, 525 (1993)).
"'The law is well established that possession of the means to exercise dominion [and] control over an item gives the possessor dominion [and] control over the item [itself.]'" Wright v. Commonwealth, 53 Va. App. 266, 274, 670 S.E.2d 772, 776 (2009) (quotingBell v. Commonwealth, 21 Va. App. 693, 698-99, 467 S.E.2d 289, 291-92 (1996)). Thus, evidence of appellant's possession of the key that controlled access to the interior of the glove compartment supports the trial court's conclusion that the marijuana baggies, which were immediately visible upon opening the glove compartment, were subject to appellant's dominion and control. See Jetter v. Commonwealth, 17 Va. App. 745, 747, 440 S.E.2d 633, 634 (1994) (holding that the defendant's possession of car keys to vehicle where drugs were found was "significant evidence" from which it can be inferred the drugs were "subject to his dominion and control"). However, the Commonwealth was required to prove both that appellant exercised dominion and control over the item, as shown by his possession of the keys to the locked glove compartment, and that he was aware of the presence and character of the marijuana. Haskins, 44 Va. App. at 6, 602 S.E.2d at 404; see also Burchette v. Commonwealth, 15 Va. App. 432, 435, 425 S.E.2d 81, 83-84 (1992).
"[W]hile proximity is a factor to be considered along with other evidence, mere proximity [to marijuana] is not sufficient to prove possession." Maxwell, 275 Va. at 444, 657 S.E.2d at 503 (citation omitted). "[O]wnership or occupancy of premises or vehicle upon or in which a controlled substance was found shall not create a presumption that such person either knowingly or intentionally possessed such controlled substance." Code § 18.2-250(A) (emphasis added).
[I]n order for ownership or occupancy of property or of a vehicle to be sufficient to support the inference that the owner or occupant also possessed contraband that was located on the property or in the vehicle, the owner or occupant must be shown to have exercised dominion and control over the premises and to have known of the presence, nature, and character of the contraband at the time of such ownership or occupancy.
Burchette, 15 Va. App. at 435, 425 S.E.2d at 83-84 (emphasis added) (citingGillis v. Commonwealth, 215 Va. 298, 301-02, 208 S.E.2d 768, 770-71 (1974)). Actual or constructive possession alone is not sufficient to prove that the drug possession was knowing and intentional. Young, 275 Va. at 590-92, 659 S.E.2d at 310 (specifically rejecting the statement that "possession of a controlled drug gives rise to an inference of the defendant's knowledge of its character").
While occupancy "of a vehicle . . . where illicit drugs are found is a circumstance that may be considered together with other evidence tending to prove that the occupant . . . exercised dominion and control over items in the vehicle," it is insufficient to prove knowing possession of drugs.
Coward v. Commonwealth, 48 Va. App. 653, 658, 633 S.E.2d 752, 754 (2006) (quotingBurchette, 15 Va. App. at 435, 425 S.E.2d at 83) (alterations in Coward) (emphasis omitted).
In Coward, this Court reversed the defendant's conviction for possession of cocaine because the Commonwealth failed to present sufficient evidence that Coward was aware of the nature and character of the cocaine, located in the passenger console and immediately visible to the police officer who approached the vehicle in which Coward was a passenger.Id. at 660, 633 S.E.2d at 755. White, the driver of the car, told the officer that the car belonged to White's mother but that he had the car "all evening" and no one else had driven or used the vehicle that night. Id. at 656, 633 S.E.2d at 753. Still, this Court held the Commonwealth did not establish any facts or circumstances, other than Coward's occupancy of the car and proximity to the cocaine, "necessary to draw the legal conclusion that Coward was aware of the presence and character of the cocaine."Id. at 659, 633 S.E.2d at 755. "Coward did not attempt to hide the baggie containing the cocaine as the officer approached the car nor did he exhibit any other signs of guilty knowledge."Id. at 659-60, 633 S.E.2d at 754. Thus, the Commonwealth did not meet its burden of proof beyond a reasonable doubt.Id. at 659, 633 S.E.2d at 754.
Here, the Commonwealth relies on the circumstantial evidence including the odor of marijuana emanating from the vehicle, and appellant's sole occupancy of the vehicle and possession of the keys to access the glove compartment at the time of the stop. Based on these facts, the Commonwealth asserts the evidence was sufficient to prove appellant knew of the presence and character of the drugs found in the vehicle.
The evidence established that when 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, that appellant appeared intoxicated, that appellant showed any physical signs of having recently used marijuana, or that appellant possessed any drugs or drug paraphernalia on his person. The record does not establish whether the officers smelled fresh marijuana or burnt marijuana. However, the trial judge interpreted the evidence as suggesting the odor was that of burnt marijuana: "The only testimony is [appellant] used the car and he was in the car when marijuana was being used, at least I think you can infer that from the evidence. . . ." (Emphasis added). There is no indication that the odor was that of fresh marijuana, which might indicate that appellant had at least reason to suspect the vehicle contained fresh marijuana. Instead, the trial court found that the odor coming from the vehicle was that of burnt marijuana, suggesting someone was smoking marijuana before the officers approached. In reaching its conclusion, the trial court more particularly stated, "Perhaps other people were in the car, perhaps other people knew about the marijuana, [but] that doesn't provide a defense for this odor." In fact, appellant was under no obligation to provide a defense for this odor. Rather, the Commonwealth was required to prove constructive possession of the marijuana in its case-in-chief. As more fully discussed herein, there was no direct evidence of appellant's constructive possession of the marijuana in the glove compartment, and the circumstantial evidence was simply insufficient as a matter of law.
The record is clear that the trial court found the odor to be one of burnt marijuana as opposed to burning marijuana. The trial judge's factual determination that the smell was that of burnt marijuana as opposed to burning marijuana is critical: " burning," indicates an activity that is then occurring, while the term, " burnt," indicates an activity that has occurred in the past. As the trial court stated, "Either [appellant] had been smoking it, or he had recently just had someone in the car who was smoking it." Accordingly, the trial court's factual conclusion was that marijuana had been smoked in or near the vehicle at some time prior to the stop.
As it is the fact finder's responsibility, and not this Court's, to "resolve[] all conflicts in the evidence," Feigley, 16 Va. App. at 724, 432 S.E.2d at 525, this Court must accept the trial court's determination that the odor emanating from the vehicle was that of burnt marijuana. The trial court also apparently rejected appellant's equivocal testimony that he would not recognize the smell of marijuana. However, evidence of the smell of burnt marijuana simply does not provide a nexus from which the trial court could conclude appellant knew of the fresh marijuana in the glove compartment.
In Young, 275 Va. at 591, 659 S.E.2d at 310, our Supreme Court explained that a "drug's distinctive odor" may be circumstantial evidence that can support a finding that the defendant knew of the nature and character of the substance in his possession. In making this statement in Young, the Supreme Court relied on Josephs v. Commonwealth, 10 Va. App. 87, 91, 390 S.E.2d 491, 492 (1990), in which the defendant was convicted of possession of marijuana with intent to distribute, based in part on the strong odor of marijuana, readily apparent when the vehicle's trunk was opened. However, inJosephs, the evidence established that Josephs was in a rental car traveling from Florida to New York; Josephs' luggage was in the trunk next to 130 pounds of marijuana; and when questioned about the marijuana, Josephs "[s]aid she didn't know about the drugs. [First] time I've driven with that stuff."Id. at 110, 390 S.E.2d at 504. Thus, while a drug's distinctive odor may be circumstantial evidence that can support a finding that the defendant knew of the nature and character of the substance in his possession, this factor is certainly not dispositive. In fact, the Young Court explicitly stated,
In Josephs, there was ample circumstantial evidence to support the trial court's conclusion that the defendant was aware of the nature and character of the drugs that she jointly possessed, and it was unnecessary for the Court of Appeals to rely on an inference of guilty knowledge based on possession alone. . . . Countless scenarios can be envisioned in which controlled substances may be found in the possession of a person who is entirely unaware of their nature and character.
Young, 275 Va. at 592, 659 S.E.2d at 310-11 (emphasis added). Most significantly, Josephs, by her own statement, conceded that she was aware of the substance as she acknowledged that it was the first time she had "driven with that stuff." Josephs, 10 Va. App. at 110, 390 S.E.2d at 504. Here, however, there is no connection between the smell of burnt marijuana and the presence of fresh marijuana found in the vehicle, and, unlikeJosephs, there is no other evidence to support the trial court's finding that appellant had knowledge of the nature and character of the drug.
The Commonwealth notes that appellant was the sole person with means to access the glove compartment containing the marijuana. While this establishes appellant's dominion and control over the vehicle and the items located therein, See Wright, 3 Va. App. at 274, 670 S.E.2d at 776; Bell, 21 Va. App. at 698-99, 467 S.E.2d at 291-92, this fact is not indicative of appellant's knowledge about the nature and character of those items, see Young, 275 Va. at 590-92, 659 S.E.2d at 310. In this case, the key that unlocked the glove compartment was the same key that was necessary to operate the vehicle. Put simply, the fact that appellant possessed that key does not logically lead to the inference that appellant knew of the glove compartment's contents.
We are cognizant of the fact that "drugs are a commodity of significant value, unlikely to be abandoned or carelessly left in an area." Ward v. Commonwealth, 47 Va. App. 733, 753 n. 4, 627 S.E.2d 520, 530 n. 4 (2006) (citingPowell v. Commonwealth, 27 Va. App. 173, 178, 497 S.E.2d 899, 901 (1998); Brown v. Commonwealth, 15 Va. App. 1, 9, 421 S.E.2d 877, 833 (1992) ( en banc)). However, in the instant case, there is no indication that the marijuana was "abandoned or carelessly left." On the contrary, the fact that the drugs were secured in a locked glove compartment suggests the drugs' owner attempted to secure and hide the marijuana from the view of others.
When we assess the sufficiency of the evidence as a matter of law, we must remain cognizant of the factual determinations made by the trial court. However, this does not end the significant legal inquiry this Court must make in light of the trial court's factual determinations. "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 S.E.2d at 406 (citingFeigley, 16 Va. App. at 724, 432 S.E.2d at 525).
This inquiry into "reasonable doubt" provides the disagreement with the analysis of the learned dissent. Although a rational trier of fact could reach the same factual determinations made by the trial court in the instant case, those factual findings must meet the legal standard of proving all elements of the crime beyond a reasonable doubt. Miller, 181 Va. at 907, 27 S.E.2d at 57. In this case, binding authority dictates that to convict appellant, there must have been acts, statements, or conduct by appellant, or other facts or circumstances that tend to show he was aware of both the presence and character of the substance and that it was subject to his dominion and control. Haskins, 44 Va. App. at 6, 602 S.E.2d at 404; Williams, 42 Va. App. at 735, 594 S.E.2d at 311.
We cannot ignore the juxtaposition between accepting the reasonable factual determinations of the trial court and giving full recognition to the "reasonable hypothesis of innocence" offered by appellant. These principles are amplified by the government's responsibility to prove guilt beyond a reasonable doubt. Accepting the trial court's factual determinations, this Court must determine whether the Commonwealth failed to prove any fact necessary to support an element of the offense, and if so, then the evidence is insufficient as a matter of law to support the conviction. Maxwell, 275 Va. at 441, 657 S.E.2d at 502 (emphasis added). In other words, given the facts in this case, no reasonable fact finder could find appellant guilty beyond a reasonable doubt.
Given the factual determinations made by the trial court, the evidence is at best in equipoise. Even assuming the trial judge determined appellant was familiar with the smell of marijuana, based on appellant's equivocal testimony regarding that fact, there was no evidence presented by the Commonwealth suggesting appellant's familiarity with that smell proved that he had smoked marijuana in the vehicle, or knew the vehicle contained fresh marijuana at the time he occupied the vehicle. Further, the record contains no other facts or circumstances to support a finding of guilt. As appellant correctly asserts, the Commonwealth presented no evidence to suggest appellant made any motion toward the glove compartment as police stopped the vehicle, or that appellant engaged in any other behavior that would indicate he knew there were drugs in the car. There was no evidence that appellant appeared nervous, and in fact, the officers testified that appellant was entirely cooperative throughout the stop.
The dissent notes that appellant refused to produce the vehicle's registration. However, there is no evidence to suggest appellant refused to produce the registration or that he refused to look in the vehicle's glove compartment. Rather, appellant's testimony, corroborated by the arresting officers, was that when the officers approached the vehicle, appellant explained that he did not have the vehicle's registration because the car did not belong to him. Despite the dissent's reliance on South Dakota v. Opperman, 428 U.S. 364, 372 (1976), Opperman is not instructive under the circumstances of this case. There, the Supreme Court, discussing the validity of an inventory search, noted, "[S]tandard inventories often include an examination of the glove compartment, since it is a customary place for documents of ownership and registration, . . . as well as a place for the temporary storage of valuables." Id. (citation omitted). While this may be true, it provides no analytical basis to find appellant had some duty to access the glove compartment here. The dissent acknowledges that appellant had no legal duty to look in the glove compartment, yet suggests appellant's apparent reluctance to access the glove compartment is affirmative evidence that appellant knew of the compartment's contents. In fact, Officer O'Brien's testimony was that when she asked for appellant's registration, appellant stated that it wasn't his vehicle. The officer's testimony does not imply appellant was asked to access the glove compartment, that appellant had any opportunity to do so, or that appellant refused to access the glove compartment. If anything, appellant was simply informing the officer that the registration would indicate he did not own the car.
In this case, it is equally as likely that someone else used marijuana in the car or used marijuana prior to getting in the car, at some time prior to the traffic stop. This is especially true given the trial court's factual conclusion that the odor was that of burnt marijuana, i.e., marijuana that had been smoked prior to the stop, and Killabrew's testimony that she lent the car to several people on a regular basis. In fact, the learned trial judge recognized this reasonable hypothesis of innocence when, in weighing the evidence, he conjectured, "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." Given the very limited circumstantial evidence presented herein, appellant's actions simply do not qualify as culpable criminal behavior under our jurisprudence. The evidence to support the Commonwealth's theory of constructive possession is simply lacking.
Even if it were probable from these facts that appellant was aware of the nature and character of the marijuana, "probability of guilt is insufficient to warrant a criminal conviction."Burchette, 15 Va. App. at 438, 425 S.E.2d at 86 (citingCrisman v. Commonwealth, 197 Va. 17, 21, 87 S.E.2d 796, 799 (1955)).
Suspicious circumstances "no matter how grave or strong, are not proof of guilt sufficient to support a verdict of guilty. The actual commission of the crime by the accused must be shown by evidence beyond a reasonable doubt to sustain his conviction." Powers v. Commonwealth, 182 Va. 669, 676, 30 S.E.2d 22, 25 (1944). Suspicious circumstances alone are not sufficient to prove knowing possession of a controlled substance.
Id. at 438-39, 425 S.E.2d at 86 (citation omitted).
Thus, we conclude that as a matter of law, the evidence is insufficient to find appellant guilty of possession of marijuana.
III. CONCLUSION
For the foregoing reasons, we conclude the evidence was insufficient to prove appellant was aware of the presence and character of the marijuana. Thus, we do not reach the merits of appellant's argument that the evidence was insufficient to prove he possessed the drugs with the requisite intent to distribute. Accordingly, we reverse appellant's conviction.
Reversed and dismissed.
As this Court stated in Pease v. Commonwealth, 39 Va. App. 342, 355, 573 S.E.2d 272, 278 (2002) ( en banc),aff'd, 266 Va. 397, 588 S.E.2d 149 (2003), when the sufficiency of the evidence is challenged on appeal, "[w]e let the decision stand unless we conclude no rational [factfinder] could have reached" the decision made by the factfinder. (Emphasis added). In light of this highly deferential standard of review on appeal, and after considering the totality of the evidence presented at trial, I simply cannot say that no rational factfinder in this Commonwealth could have found beyond a reasonable doubt as the trial court did here — that appellant knowingly and intentionally possessed the marijuana recovered from the vehicle's glove compartment. Therefore, I cannot join the majority opinion. In addition, I would affirm the trial court's finding that appellant possessed the marijuana with the intent to distribute — a question not addressed by the majority, given its decision on appellant's first question presented concerning guilty knowledge. Accordingly, I respectfully dissent.
I. THE RATIONAL FACTFINDER STANDARD OF REVIEW ON APPEAL
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." Thomas v. Commonwealth, 48 Va. App. 605, 608, 633 S.E.2d 229, 231 (2006);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) (quotingCommonwealth 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) (quotingJackson v. Virginia, 443 U.S. 307, 319 (1979)).
Indeed, 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 (1978) (stating that appellate reversal on grounds of insufficient evidence "will be confined to cases where the prosecution's failure is clear"). Thus, when the sufficiency of the evidence supporting a conviction is challenged on appeal, we must affirm the trial court's judgment if " any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Crowder v. Commonwealth, 41 Va. App. 658, 663, 588 S.E.2d 384, 387 (2003) (quotingJackson, 443 U.S. at 319).
"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 v. Commonwealth, 41 Va. App. 250, 257, 584 S.E.2d 444, 447 (2003) (en banc)). II. APPELLANT'S KNOWING AND INTENTIONAL POSSESSION OF THE MARIJUANA
The trial court found that appellant's possession of the marijuana recovered from the glove compartment was knowing and intentional, proving that he constructively possessed the marijuana with the requisite guilty knowledge. Young, 275 Va. at 591, 659 S.E.2d at 310. "In drug cases no less than any other, it 'is axiomatic that any fact that can be proved by direct evidence may be proved by circumstantial evidence.'" Haskins, 44 Va. App. at 6, 602 S.E.2d at 404 (quoting Etherton v. Doe, 268 Va. 209, 212-13, 597 S.E.2d 87, 89 (2004)). "While no single piece of [circumstantial] evidence may be sufficient, the 'combined force of many concurrent and related circumstances, each insufficient in itself, may lead a reasonable mind irresistibly to a conclusion.'" Stamper v. Commonwealth, 220 Va. 260, 273, 257 S.E.2d 808, 818 (1979) (quoting Karnes v. Commonwealth, 125 Va. 758, 764, 99 S.E. 562, 564 (1919)). Moreover, as the Supreme Court has stated, as an appellate court, "it is our duty to look to that evidence which tends to support the verdict" when the sufficiency of the evidence is challenged on appeal. Snyder v. Commonwealth, 202 Va. 1009, 1016, 121 S.E.2d 452, 457 (1961).
This Court's holding in Coward v. Commonwealth, 48 Va. App. 653, 633 S.E.2d 752 (2006), although not controlling given the very different facts in this case, is a useful guidepost in determining whether the evidence was sufficient as a matter of law to prove that a vehicle occupant's possession of illegal drugs was knowing and intentional. There, Coward was the passenger in a Toyota that was stopped in the middle of the night for an equipment violation. Id. at 656, 633 S.E.2d at 753. As the police officer approached the Toyota, he directed the high beams and the spotlight on his police car toward the Toyota, and he also used his flashlight to further illuminate the interior of the Toyota.Id. The officer noticed crack cocaine in a clear plastic bag that was sitting on the console between the driver's and passenger's seats. Id. The driver, White, told the officer that the Toyota belonged to his mother and that he had been driving it all evening.Id. Coward made no statements to the officer.Id. At Coward's trial, the trial court convicted Coward of possession of cocaine, even though it found that Coward's occupancy of the vehicle and proximity to the cocaine were the only factors supporting its finding that he had guilty knowledge of the cocaine. Id. at 658, 633 S.E.2d at 754.
On appeal, this Court reversed Coward's conviction, reiterating the familiar principle that mere occupancy and proximity, although factors to be considered among the totality of the circumstances, are insufficient standing alone to prove a defendant's guilty knowledge of illegal drugs. Id. This Court held that the evidence at Coward's trial was insufficient as a matter of law because it "did not establish any other facts or circumstances necessary to draw the legal conclusion that Coward was aware of the presence and character of the cocaine."Id. at 659, 633 S.E.2d at 754 (emphasis added).
Here, unlike in Coward, the evidence at trial did present other facts and circumstances permitting the trial court to draw the conclusion that appellant was aware of the presence and character of the marijuana in the glove compartment — and these facts and circumstances may be considered in addition to appellant's occupancy of the vehicle and proximity to the marijuana. Based on the combined force of these concurrent and related circumstances, I conclude that the trial court's finding here was not plainly wrong or unsupported by the evidence.
A. THE STRONG ODOR OF MARIJUANA
A defendant's knowledge of the presence and character of a drug may be shown by evidence of the acts, statements, or conduct of the accused, Garland v. Commonwealth, 225 Va. 182, 184, 300 S.E.2d 783, 784 (1983), as well as by "other facts or circumstances" tending to demonstrate the accused's guilty knowledge of the drug, Williams v. Commonwealth, 42 Va. App. 723, 735, 594 S.E.2d 305, 311 (2004). As the Supreme Court of Virginia recently explained in Young, a "drug's distinctive odor" may be circumstantial evidence that can support a finding that the defendant knew of the nature and character of the substance in his possession. Young, 275 Va. at 591, 659 S.E.2d at 310.
Here, the vehicle in which appellant was the driver smelled strongly of the odor of marijuana — the very same illegal drug recovered from the vehicle's glove compartment. This odor, which was readily discernible to both officers as marijuana when they approached appellant's vehicle, would certainly have been apparent to appellant — the sole occupant of the vehicle. The strong and distinctive odor of the drug provided a significant indication to anyone inside (or even near) the vehicle that marijuana was located within the vehicle. See id. at 592, 659 S.E.2d at 311 (distinguishing the facts in Young's case, where the contents of a pill bottle "gave no indication of their character," from the facts inJosephs v. Commonwealth, 10 Va. App. 87, 390 S.E.2d 491 (1990), which involved "the odoriferous contents" of a trunk containing marijuana).
In Josephs, the defendant, whose luggage was placed in the trunk of a vehicle next to 130 pounds of marijuana packaged in closed garbage bags, provided the following statement to an officer: "Said she didn't know about drugs. 1st time I've driven with that stuff." Josephs, 10 Va. App. at 100, 390 S.E.2d at 498. This Court held that the trial court was permitted to infer from this statement that Josephs knew the marijuana was in the trunk.Id. However, the Supreme Court in Young overruled this Court's opinion in Josephs to the extent that this Court had held "'[p]ossession of a controlled drug gives rise to an inference of the defendant's knowledge of its character,' insofar as that statement can be read to imply that bare possession, without more, may furnish proof, beyond a reasonable doubt, of the essential element of guilty knowledge." Young, 275 Va. at 592, 659 S.E.2d at 310 (quoting Josephs, 10 Va. App. at 101, 390 S.E.2d at 498-99). Furthermore, the Supreme Court observed in Young that there was "ample circumstantial evidence" supporting the trial court's finding of guilty knowledge in Josephs and that it was wholly unnecessary to rely on Josephs' statement to the officer that it was the "1st time I've driven with that stuff" in affirming the trial court's finding.Id.
Discussing Young, the majority here notes the Supreme Court's observation that there was ample circumstantial evidence pointing to Josephs' guilty knowledge of the marijuana. The majority continues, "Most significantly, Josephs, by her own statement, conceded that she was aware of the substance as she acknowledged that it was the first time she had 'driven with that stuff.'" However, the use of Josephs' statement in this manner was actually a significant factor in the Supreme Court's overruling ofJosephs, to the extent that this Court in Josephs had held that bare possession of a controlled drug — which Josephs conceded in her statement to the arresting officer — gave rise to an inference of guilty knowledge of the drug. Instead, the Supreme Court's brief discussion of the ample circumstantial evidence establishing Josephs' guilty knowledge of the marijuana focused on the "the odoriferous contents of the trunk" in that case — which, unlike the odorless contents of the pill bottle in Young, gave Josephs an indication of the nature and character of the marijuana within the vehicle in that case.Young, 275 Va. at 592, 659 S.E.2d at 311.
Distinguishing between the smell of burnt marijuana as opposed to fresh (i.e., not burnt) marijuana, the majority holds that the trial court erroneously inferred that appellant was aware of the marijuana in the glove compartment, which was fresh. As the majority notes, the trial court found based on the officers' testimony that the strong marijuana odor emanating from the vehicle was from marijuana that had been smoked (and therefore burnt). However, this finding does not render inapplicable any "nexus from which the trial court could conclude appellant knew of the fresh marijuana in the glove compartment," as the majority suggests.
Viewing all 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), the trial court's finding that appellant had guilty knowledge of the marijuana in the glove compartment is strengthened by the trial court's finding concerning the marijuana odor. The trial court not only found that the marijuana smelled by the officers had been smoked — it also found that the marijuana had been recently smoked. The trial court's finding, which was certainly not unreasonable given the officers' testimony concerning the strength of the marijuana odor and their detection of the odor as they approached the vehicle, is entitled to deference during appellate review for sufficiency of the evidence. Hancock v. Commonwealth, 12 Va. App. 774, 782, 407 S.E.2d 301, 306 (1991). Furthermore, Killabrew's testimony established that appellant took possession of the vehicle between 6:00 and 7:00 p.m., approximately one-and-a-half to two-and-a-half hours prior to the traffic stop. Thus, appellant possessed the vehicle during a time period when the trial court inferred that the marijuana detected by the officers must have been smoked — either by appellant or by someone else in appellant's presence. Based on these circumstances, the officers' detection of the strong odor of recently burnt marijuana certainly does not undermine the trial court's conclusion that appellant was aware of the fresh marijuana in the glove compartment. See Jackson, 443 U.S. at 319 (stating that it is the province of the factfinder to draw reasonable inferences from basic facts to ultimate facts). Nothing in this record suggests any other means, in the approximately one-and-a-half to two-and-a-half hours appellant had possessed the car, to create such a strong odor of marijuana from the vehicle that people approaching it could identify the odor.
Therefore, the presence of the strong odor of marijuana within the vehicle was a significant factor among the totality of the circumstances in this case because it was evidence "tending to show or allowing the trial court to reasonably infer" that appellant was aware of the marijuana in the glove compartment. Coward, 48 Va. App. at 659, 633 S.E.2d at 754. However, the strong odor of marijuana emanating from the vehicle, readily discernible by each of the officers, is not viewed in isolation on appeal.Commonwealth v. Hudson, 265 Va. 505, 514, 578 S.E.2d 781, 786 (2003). Instead, this circumstance must be viewed among the totality of the circumstances establishing appellant's guilty knowledge of the marijuana. Several additional facts and circumstances in the record here further support the trial court's finding that appellant was aware of the presence and character of these drugs.
B. APPELLANT'S SOLE POSSESSION OF THE VEHICLE AND HIS POSSESSION OF THE KEY TO THE GLOVE COMPARTMENT
Appellant was in sole possession of the vehicle at the time the marijuana was found. Contra Coward, 48 Va. App. at 656, 633 S.E.2d at 753 (cocaine possession conviction reversed where Coward was the passenger in a vehicle containing cocaine, and where the driver, White, acknowledged that the vehicle was owned by his mother and that he had been driving it all evening). Appellant also possessed the key to the vehicle and, therefore, was the sole person at that time with means to access the glove compartment containing the marijuana.
These facts render Burchette v. Commonwealth, 15 Va. App. 432, 438, 425 S.E.2d 81, 86 (1992), upon which appellant relies, distinguishable and basically inapplicable to the facts of the present case. In Burchette, marijuana was found in one of two vehicles owned by Burchette. Burchette had personal items in this vehicle and had been observed near, although not inside, it. Id. at 435, 425 S.E.2d at 83-84. After reviewing this evidence, the Court reversed Burchette's conviction for possession of marijuana with intent to distribute, holding in pertinent part:
The Commonwealth presented no evidence from which one reasonably could infer that Burchette occupied the vehicle or had exercised dominion over it while the marijuana was present in it. The evidence failed to show either when Burchette may have used or occupied the vehicle or when or for how long the drugs or paraphernalia had been in it. The evidence failed to show that Burchette was the exclusive or primary operator of the vehicle, or that he possessed a set of keys to the vehicle, or when or by whom the vehicle had been most recently operated or occupied. The circumstances were not such that one reasonably could infer, to the exclusion of other reasonable hypotheses, that Burchette, as the owner of the vehicle, knew of the presence, nature and character of the contraband that was found in it.
Id. at 435-36, 425 S.E.2d at 84 (emphasis added).
Unlike in Burchette, the evidence at trial here established that appellant was in sole possession of the vehicle, the key to the vehicle, and the key to the glove compartment while the glove compartment of that vehicle contained marijuana — and while the vehicle smelled strongly of the odor of marijuana. The speculation required in Burchette was not required here. All these circumstances considered collectively support the factfinder's conclusion that appellant knew the nature and character of the items found in the glove compartment. However, additional circumstances in this record provide further support for the court's finding.
I agree with the majority that appellant's possession of the key that was capable of accessing the glove compartment was highly probative in determining whether he had dominion and control over the marijuana retrieved from the glove compartment. However, this evidence was also relevant in determining whether appellant was aware of the marijuana in the glove compartment. See Burchette, 15 Va. App. at 435-36, 425 S.E.2d at 84 (considering the failure to prove Burchette's possession of the vehicle's keys as relevant in determining both dominion and control and guilty knowledge of the drugs found inside the vehicle). Whoever placed the marijuana into the glove compartment was necessarily aware that anyone with a key to the vehicle would have dominion and control over the glove compartment and, as a result, over the marijuana — which could have been seen immediately upon opening the glove compartment. Therefore, the factfinder could reasonably infer that the owner of the marijuana would keep these illegal drugs in the glove compartment only when he or she possessed the means to operate the vehicle — leading to the conclusion that the holder of the key in this case, appellant, was the owner of the marijuana or had guilty knowledge of it.
C. APPELLANT'S APPARENT RELUCTANCE TO ACCESS THE GLOVE COMPARTMENT
According to the officers' testimony, appellant did not attempt to retrieve the vehicle's registration from the glove compartment — within which, of course, the officers eventually found the marijuana — despite the glove compartment's obvious utility, according to the United States Supreme Court, as "a customary place" where a vehicle's registration is found. South Dakota v. Opperman, 428 U.S. 364, 372 (1976) (noting that the glove compartment is "a customary place for documents of ownership and registration, as well as a place for the temporary storage of valuables" (citation omitted)). Indeed, when asked to produce a vehicle's registration, suspects routinely access a vehicle's glove compartment, see, e.g. Hill v. Commonwealth, 52 Va. App. 313, 317, 663 S.E.2d 133, 135 (2008);Commonwealth v. Thomas, 23 Va. App. 598, 603, 478 S.E.2d 715, 717 (1996); United States v. Wheeler, 525 F.3d 1254, 1255 (D.C. Cir. 2008);Coombs v. Maine, 202 F.3d 14, 15 (1st Cir. 2000), even in instances, like here, where the vehicle is not actually owned by the suspect, see Williams v. Commonwealth, 42 Va. App. 723, 728, 594 S.E.2d 305, 308 (2004). Here, however, despite being asked by the officers to produce both the registration and his driver's license, appellant readily provided the officers with only his driver's license, which was suspended. He did not even attempt to retrieve the vehicle's registration from the glove compartment. This evidence suggests that appellant was reluctant to access, in the officers' presence, the glove compartment where the drugs were located. Cf. McMillan, 277 Va. at 20, 671 S.E.2d at 40 (finding the fact that the defendant refused to open the glove compartment in which the drugs were subsequently found was a relevant, probative factor in finding him guilty of possession of cocaine).
Based on his apparent reluctance to access the glove compartment, where the vehicle's registration would customarily be located,Opperman, 428 U.S. at 372, a rational factfinder could infer appellant's knowledge of the contraband, which was immediately observable upon opening the glove compartment. Again, considered in isolation this fact perhaps would not provide sufficient evidence on appeal to support the factfinder's determination that appellant was aware of the character and nature of the substance in the glove compartment. However, considered together with all the circumstances presented at trial, this fact adds to the mounting collection of evidence that supports the trial court's finding of guilt.
Opperman should not be interpreted, of course, to create a legal duty for motorists to access the vehicle's glove compartment when officers request identification and vehicle registration. That is not the issue before this Court. Rather, when reviewing a challenge to the sufficiency of the evidence, an appellate court must view the evidence in the light most favorable to the prevailing party below and give that party "the benefit of any reasonable inferences." Glenn v. Commonwealth, 49 Va. App. 413, 416, 642 S.E.2d 282, 283 (2007) ( en banc) (citation omitted), aff'd, 275 Va. 123, 654 S.E.2d 910 (2008). Here, it would not be unreasonable to infer that appellant was reluctant to access the glove compartment in light of all the circumstances.
D. APPELLANT'S SELF-SERVING TESTIMONY
In addition, the trial court obviously rejected appellant's testimony that the marijuana did not belong to him. This rejected claim of innocence, when viewed in the light most favorable to the Commonwealth, as we must since it was the prevailing party below, "'must be interpreted . . . as [a] mere fabrication[] to conceal his guilt.'" Staton v. Commonwealth, 36 Va. App. 282, 289, 549 S.E.2d 627, 630 (2002) (quotingRollston v. Commonwealth, 11 Va. App. 535, 547, 399 S.E.2d 823, 830 (1991)); see Barnes v. Commonwealth, 47 Va. App. 105, 110 n. 1, 622 S.E.2d 278, 280 n. 1 (2005) (stating that the rational factfinder standard of review on appeal "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" (citation omitted)).
The trial court also clearly rejected appellant's equivocal and ultimately self-serving testimony that he would not recognize the smell of marijuana. This Court, following the precedent of the United States Supreme Court, has recognized a "'general principle of evidence law that the factfinder is entitled to consider a party's dishonesty about a material fact as affirmative evidence of guilt."Haskins, 44 Va. App. at 11 n. 3, 602 S.E.2d at 407 n. 3 (quotingReeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147 (2000)). Here, given the strong odor of marijuana emanating from the vehicle, which was readily discernible by both officers, appellant's ability to recognize the smell of marijuana certainly concerned a material fact. The trial court, therefore, was permitted to assign appropriate weight to appellant's testimony that he could not recognize the smell of marijuana, which lacked credibility and which concerned a material fact. This is especially true since appellant initially testified that maybe he could recognize the smell.
E. ABANDONMENT OF VALUABLE CONTRABAND
Moreover, while appellant asserts that the evidence failed to exclude the possibility that the marijuana baggies belonged to someone else and that he was simply unaware of the presence of drugs in the glove compartment, the Commonwealth "is not required to prove that there is no possibility that someone else may have planted, discarded, abandoned or placed the contraband where the contraband is discovered." Kromer v. Commonwealth, 45 Va. App. 812, 819, 613 S.E.2d 871, 875 (2005) (citation and brackets omitted). A factfinder is permitted to infer that "drugs are a commodity of significant value, unlikely to be abandoned or carelessly left in an area." Ward v. Commonwealth, 47 Va. App. 733, 753 n. 4, 627 S.E.2d 520, 529 n. 4 (2006) (citingPowell v. Commonwealth, 27 Va. App. 173, 178, 497 S.E.2d 899, 901 (1998)).
The majority states that the marijuana here was not "abandoned or carelessly left" because the drugs were in a locked glove compartment, suggesting, the majority asserts, that the owner of the drugs "attempted to secure and hide the marijuana from the view of others." However, the glove compartment's lock provided little security — given that several people apparently used the vehicle — and any attempt by another person to hide the marijuana certainly would have been careless in light of the manner in which the marijuana was found.
Here, it is uncontested that the key to the vehicle's ignition also unlocked the glove compartment. Thus, the individual who placed the marijuana in the glove compartment did so knowing that anyone who operated the vehicle would have the ability to open the glove compartment — for any reason — and would then see the marijuana, which was readily observable the moment the glove compartment was opened. Any other operator of the vehicle, therefore, could take that marijuana from the glove compartment. Under these circumstances, the trial court was entitled to consider it unlikely that Killabrew (the owner of the vehicle) or anyone else using the vehicle simply left the marijuana — which had a street value of over $200 — in the glove compartment of the car. The inference that someone would not leave the marijuana in a glove compartment that numerous other people could access is another factor supporting the trial court's finding that appellant possessed the marijuana with knowledge of its nature and character. See Bowling v. Commonwealth, 51 Va. App. 102, 107, 654 S.E.2d 354, 356 (2007) ("[W]hen we consider the sufficiency of the evidence . . . we review the totality of the evidence to determine whether it was sufficient to prove an offense.").
The trial court found that Killabrew permitted appellant to use the vehicle regularly. Appellant used the vehicle, he claimed, for errands. This arrangement is very different than a situation where an unsuspecting person leases a rental car that happens to have marijuana in its glove compartment. It is also very different from a situation where a person, performing a good deed, unwittingly drives a sick (or intoxicated) friend home in a vehicle containing contraband. Viewing the evidence in this case in the light most favorable to the Commonwealth, as we must since it was the prevailing party below, the evidence established that appellant regularly used the vehicle, that he had been the sole occupant of the vehicle when the marijuana was discovered by the officers, and that there were no extenuating circumstances placing him in possession of the vehicle at the time illegal drugs were inside it. These factors significantly conflicted with appellant's suggestion that he was simply unaware of the marijuana in the vehicle's glove compartment, especially since the vehicle contained the strong odor of marijuana at the same time that marijuana was actually found inside the glove compartment.
Despite these several facts and circumstances, the majority holds that the evidence was insufficient as a matter of law to find that appellant knowingly and intentionally possessed the marijuana in the glove compartment. The majority considers it equally as likely that someone other than appellant used marijuana in the car prior to appellant's taking possession of it, or that someone other than appellant used marijuana before getting into the vehicle with appellant. Both of these possibilities, the majority asserts, would explain the strong odor of marijuana that was readily discernible by the officers without implicating appellant's guilty knowledge of the marijuana recovered from the glove compartment.
The trial court's rejection of a hypothesis of innocence "is a question of fact and, therefore, is binding on appeal unless plainly wrong," Archer v. Commonwealth, 26 Va. App. 1, 12-13, 492 S.E.2d 826, 832 (1997) — even if there is "some evidence to support" the hypothesis of innocence. Hudson, 265 Va. at 513, 578 S.E.2d at 785. The principle that the evidence at trial must exclude every reasonable hypothesis of innocence "is not a discrete rule unto itself." Haskins, 44 Va. App. at 8, 602 S.E.2d at 405. Because the trial court here rejected appellant's hypothesis of innocence as unreasonable, "that determination cannot be overturned as arbitrary unless no rational factfinder would have come to that conclusion."Id. at 9, 602 S.E.2d at 406 (emphasis added) (citation omitted);see Clanton v. Commonwealth, 53 Va. App. 561, 572-73, 673 S.E.2d 904, 910 (2009) (en banc) (rejecting the defendant's challenge to the sufficiency of the evidence because, although the evidence at trial permitted conflicting inferences, the trial court did not arbitrarily reject the defendant's hypothesis of innocence and a rational factfinder could have come to the conclusion reached by the trial court);see also Lyons v. City of Petersburg, 221 Va. 10, 13, 266 S.E.2d 880, 881 (1980) ("Circumstantial evidence is sufficient to convict if it excludes every reasonable hypothesis of innocence. This occurs when the trier of facts has an abiding conviction of the guilt of the accused." (emphasis added)). Moreover, all the circumstances from which appellant's knowledge of the marijuana found in the glove compartment may be inferred must be viewed and analyzed in their totality, not separately.Hudson, 265 Va. at 514, 578 S.E.2d at 786.
It is important to note that nothing in the record supports either of these theories of innocence.
Based on all of the facts and circumstances presented at trial, which were far more significant than appellant's mere occupancy of the vehicle in which drugs were found and proximity to those drugs, I cannot say that the trial judge here was not a rational factfinder — just as I cannot say that no rational factfinder in this Commonwealth could have found beyond a reasonable doubt that appellant constructively possessed this marijuana with knowledge of its nature and character.
III. INTENT TO DISTRIBUTE
Without conceding that he possessed the marijuana, appellant also argues that the evidence was insufficient to prove that he intended to distribute the marijuana that was recovered from the glove compartment. He contends that the evidence did not foreclose the possibility that the marijuana was packaged for personal use. However, I would affirm the trial court's conclusion that appellant possessed the marijuana with intent to distribute.
'"Because direct proof of intent [to distribute drugs] is often impossible, it must be shown by circumstantial evidence.'"Welshman v. Commonwealth, 28 Va. App. 20, 37, 502 S.E.2d 122, 130 (1998) (en banc) (quotingServis v. Commonwealth, 6 Va. App. 507, 524, 371 S.E.2d 156, 165 (1988)). Factors that a trial court may consider as indicators that a defendant intended to distribute the illegal drugs in his possession include the "possession of a quantity [of drugs] greater than that ordinarily possessed for one's personal use," Iglesias v. Commonwealth, 7 Va. App. 93, 110, 372 S.E.2d 170, 180 (1988) (en banc), "the method of packaging of the controlled substance," any "unusual amount of money which suggests profit from consummation of sales," Servis, 6 Va. App. at 524-25, 371 S.E.2d at 165, and "the absence of any paraphernalia suggestive of personal use," Welshman, 28 Va. App. at 37, 502 S.E.2d at 130. "Expert testimony, usually that of a police officer familiar with narcotics, is routinely offered to prove the significance of the weight and packaging of drugs regarding whether it is for personal use." Askew v. Commonwealth, 40 Va. App. 104, 109, 578 S.E.2d 58, 61 (2003).
Appellant contends that Dukes v. Commonwealth, 227 Va. 119, 313 S.E.2d 382 (1984), and Rice v. Commonwealth, 16 Va. App. 370, 429 S.E.2d 879 (1993), where convictions for possession of marijuana with intent to distribute were reversed, likewise compel reversal here. However, those cases are readily distinguishable from the facts of this case.
The Supreme Court held in Dukes that "[t]he mode of packaging [the marijuana] and the way the packages were hidden are as consistent with possession for personal use as they are with intent to distribute." 227 Va. at 123, 313 S.E.2d at 384 (emphasis added). Here, the marijuana recovered from the glove compartment was packaged in twenty-three individual baggie corners. Officer Natal, the Commonwealth's expert witness on the packaging and distribution of narcotics, testified that he had never before seen an instance where someone possessed twenty-three individual baggie corners of marijuana for personal use. Thus, the evidence in this case proved that the packaging was much more consistent with distribution than with personal use — evidence that was not available to the trial court in Dukes.
Furthermore, in Rice, the defendant's "possession of 0.74 ounces of marijuana and almost $5,000 in cash, without more," was found insufficient to support his conviction for possession with intent to distribute "when the evidence also showed that the marijuana was found in one baggie and that appellant himself tested positive for marijuana use." 16 Va. App. at 372, 429 S.E.2d at 880 (emphasis added). Unlike in Rice, in this case an expert testified that the marijuana was packaged for distribution, in two bags that contained the marijuana divided into twenty-three smaller "corners." See Scott v. Commonwealth, 55 Va. App. 166, 174, 684 S.E.2d 833, 837 (2009) ("[T]he drugs were packaged individually in baggie corners, making them easier and more profitable to sell." (citation omitted)).
Therefore, neither Dukes nor Rice is controlling in this case. The trial court here was not plainly wrong in finding that the packaging of the marijuana in twenty-three individual baggie corners evinced appellant's intent to distribute the marijuana.
IV. CONCLUSION
Appellant at the time of the traffic stop was in sole possession of the vehicle and possessed the key to the glove compartment, which contained marijuana valued at over $200, at the same time that the vehicle smelled strongly of the distinctive odor of marijuana, which the trial court found had been recently burnt. Appellant made no attempt to retrieve the vehicle's registration from the glove compartment when asked to provide the registration — even though he readily provided his driver's license, which was suspended — and then testified at trial that the marijuana was not his and that he was not even familiar with the smell of marijuana. Based on the totality of this record, there was sufficient evidence for a rational factfinder to conclude beyond a reasonable doubt that appellant knowingly possessed the marijuana — and to find that appellant intended to distribute the marijuana, which was packaged in twenty-three individual baggie corners. Accordingly, I must respectfully dissent from the majority opinion as I would affirm appellant's conviction for possession of marijuana with intent to distribute.