"In a prosecution for possession of a controlled substance, the Commonwealth must produce evidence sufficient to support a conclusion beyond a reasonable doubt that the defendant's possession of the drug was knowing and intentional." Ervin v. Commonwealth, 57 Va. App. 495, 504, 704 S.E.2d 135, 139 (2011) (enbanc) (quoting Young v. Commonwealth, 275 Va. 587, 591, 659 S.E.2d 308, 310 (2008)). The possession of a controlled substance by an individual may be either actual or constructive.

Christian v. Commonwealth, 59 Va.App. 603, 611 (2012) (quoting Young v. Commonwealth, 275 Va. 587, 592 (2008)). Nevertheless, 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, as well as by 'other facts or circumstances'" demonstrating "the accused's guilty knowledge of the drug." Id. at 613 (quoting Ervin v. Commonwealth, 57 Va.App. 495, 506-07 (2011) (en banc)). For example, we have held that the evidence proved a defendant's "guilty knowledge" of the presence and character of marijuana found in a glove compartment when he was "in sole possession of the vehicle" and "possessed the key to the vehicle and its glove compartment."

Appellant contends that this case is controlled by this Court's decision in Coward v. Commonwealth, 48 Va. App. 653, 633 S.E.2d 752 (2006), where the evidence of Coward's guilty knowledge of the cocaine at issue was insufficient as a matter of law. However, as we recently explained in Ervin v. Commonwealth, 57 Va. App. 495, 704 S.E.2d 135 (2011) (en banc), the decision in Coward simply reflects the settled principle that occupancy of a vehicle where illegal drugs are found and proximity to those drugs, "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. at 506, 704 S.E.2d at 140.

To convict for possession of a Schedule I or II controlled substance, the evidence must establish that "the defendant's possession of the drug was knowing and intentional." Ervin v. Commonwealth, 57 Va.App. 495, 504 (2011) (en banc) (citing Burton v. Commonwealth, 215 Va. 711, 713 (1975)).

Although occupancy and proximity, standing alone, are insufficient to prove possession of drugs, they are factors to be considered among the totality of the circumstances. See Ervin v. Commonwealth, 57 Va.App. 495, 506 (2011) (en banc). In addition to admitting shared occupancy of the bedroom where the drugs were found, Hemmis' statements to Officer Valli can reasonably be understood as Hemmis claiming the drugs as his own or as jointly his and B.B.'s.

The fact that a suspect is the sole occupant of a vehicle with sole access to contraband that is found in that vehicle is a factor weighing in favor of the suspect's guilty knowledge of the contraband's presence in the vehicle. Ervin v. Commonwealth, 57 Va. App. 495, 510-12, 704 S.E.2d 135, 142-43 (2011). Here, because there was neither eyewitness nor forensic evidence proving Watson had actual possession of the gun, and because the gun was found in the trunk of Watson's car, the case relies on constructive possession and circumstantial evidence.

Hargrove v. Commonwealth, 77 Va.App. 482, 507 (2023)(alteration in original) (quoting Ervin v. Commonwealth, 57 Va.App. 495, 505 (2011) (en banc)).

Factors that "may constitute probative evidence of intent to distribute a controlled substance" include "the quantity of the drugs seized, the manner in which they are packaged, and the presence of an unusual amount of cash, equipment related to drug distribution, or firearms." McCain v. Commonwealth, 261 Va. 483, 493 (2001). "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." Ervin v. Commonwealth, 57 Va.App. 495, 522 (2011) (en banc) (quoting Askew v. Commonwealth, 40 Va.App. 104, 109 (2003)).

"[I]n an appellate court's assessment of a sufficiency challenge, circumstantial evidence 'is as competent . . . as direct evidence' to prove the elements of a crime, 'provided it is sufficiently convincing to exclude every reasonable hypothesis except that of guilt.'" Young v. Commonwealth, 70Va.App. 646, 653 (2019) (second alteration in original) (quoting Simon v. Commonwealth, 58 Va.App. 194, 206 (2011)). "[I]n a circumstantial evidence case, . . . the accumulation of various facts and inferences, each mounting upon the others, may indeed provide sufficient evidence beyond a reasonable doubt" of a defendant's guilt. Ervin v. Commonwealth, 57 Va.App. 495, 505 (2011) (en banc).

Circumstantial evidence can include many "[f]actors that a trial court may consider as indicators that a defendant intended to distribute the illegal drugs in his possession[,] includ[ing] the 'possession of a quantity [of drugs] greater than that ordinarily possessed for one's personal use.'" Ervin v. Commonwealth, 57 Va.App. 495, 521-22 (2011) (en banc) (fourth alteration in original) (quoting Iglesias v. Commonwealth, 7 Va.App. 93, 110 (1988) (en banc)). Other factors include "the method of packaging of the controlled substance" and "the absence of any paraphernalia suggestive of personal use."