Opinion
Record No. 2063-92-3
Decided: May 10, 1994
FROM THE CIRCUIT COURT OF BUCHANAN COUNTY, Nicholas E. Persin, Judge
Affirmed.
(Thomas L. Pruitt; Robertson, Cecil, King Pruitt, on brief) for appellant. Appellant submitting on brief.
(Stephen D. Rosenthal, Attorney General; Leah A. Darron, Assistant Attorney General, on brief), for appellee. Appellee submitting on brief.
Present: Judges Barrow, Coleman and Koontz
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
In this criminal appeal, we hold that the evidence was sufficient to support the defendant's conviction for possession of marijuana with intent to distribute.
Possession may be exclusive or joint, actual or constructive. Gillis v. Commonwealth, 215 Va. 298, 301, 208 S.E.2d 768, 771 (1974); Josephs v. Commonwealth, 10 Va. App. 87, 100, 390 S.E.2d 491, 498 (1990) (en banc). To support a conviction based upon constructive possession, "the Commonwealth must point to evidence of acts, statements, or conduct of the accused or other facts and circumstances which tend to show that the defendant was aware of both the presence and character of the substance and that it was subject to his dominion and control." Powers v. Commonwealth, 227 Va. 474, 476, 316 S.E.2d 739, 740 (1984). When a conviction for possession of drugs is based on circumstantial evidence, all material circumstances proved must be consistent with guilt and must exclude every reasonable hypothesis of innocence. Nelson v. Commonwealth, ___ Va. App. ___, ___, 440 S.E.2d 627, 629 (1994).
On appeal we view the evidence in the light most favorable to the Commonwealth, granting it all reasonable inferences, and we will not disturb a jury's verdict unless plainly wrong or without evidence to support it. Maynard v. Commonwealth, 11 Va. App. 437, 439, 399 S.E.2d 635, 637 (1990) (en banc).
The defendant was a passenger in an automobile where police found marijuana hidden under his side of the bench seat and on the seat between the driver and him. The marijuana was partially visible and partially covered by the driver's coat. The defendant claimed that he did not see any of the marijuana. He gave the police a false name when he was arrested and testified inconsistently concerning the driver's possession of $3,000. The defendant's credibility was a question for the jury. Long v. Commonwealth, 8 Va. App. 194, 199, 379 S.E.2d 473, 476 (1989).
Contraband found partially in view may be treated as in plain view. Harmon v. Commonwealth, 15 Va. App. 440, 445, 425 S.E.2d 77, 80 (1992) (treating drugs found protruding from under a seat as though in plain view in search and seizure context). Because it was partially visible, the jury could have found that the defendant was aware of the presence and character of the marijuana, and, because of its proximity and accessibility to the defendant, could have found that he had dominion and control of it.
For the foregoing reasons, we affirm the defendant's conviction.
Affirmed.