                        COURT OF APPEALS OF VIRGINIA


Present: Judges Bray, Frank and Clements
Argued at Chesapeake, Virginia


JARVIS DESHANON BROWN
                                           MEMORANDUM OPINION * BY
v.   Record No. 2361-00-1                   JUDGE ROBERT P. FRANK
                                              NOVEMBER 6, 2001
COMMONWEALTH OF VIRGINIA


       FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
                   Edward W. Hanson, Jr., Judge

          Janee D. Joslin (Davis & Pugh, on brief), for
          appellant.

          Stephen R. McCullough, Assistant Attorney
          General (Randolph A. Beales, Acting Attorney
          General, on brief), for appellee.


     Jarvis Deshanon Brown (appellant) was convicted in a jury

trial of possession with the intent to distribute more than five

pounds of marijuana, in violation of Code § 18.2-248.1.    On

appeal, he contends the trial court erred in finding the evidence

sufficient to convict.    Finding no error, we affirm the judgment

of the trial court.

                              BACKGROUND

     On April 26, 1999, John Casey, an employee of the Family

Motors car dealership, arrived at work and noticed a package in

the office.   When he opened the package, he discovered inside the


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
larger package a shrink-wrapped package approximately three feet

long that contained a large quantity of marijuana.   Two other

inner boxes also contained marijuana.   The inner packages

contained a combined total of over 100 pounds of marijuana.     Casey

immediately told his manager to call the police.

     In examining the outside of the package, Casey noticed that

it originated in California.   The shipping receipt listed a phone

number and a name, Linda Nichols.

     Virginia Beach Police Detectives Richard Brereton and Terry

Dugan responded to the call.   Brereton called the telephone number

listed on the shipping receipt.   He identified himself as a

fictional employee of Family Motors named "Bob" and explained he

had received a package that was not for the dealership.   No person

named "Bob" worked at the dealership.   Brereton had several

conversations with the person in California, who identified

herself as Linda Nichols.   Eventually, Nichols told Brereton that

an individual named Jarvis Brown would come and claim the package.

     Appellant appeared at the dealership that afternoon.      He

asked for "Bob."   Detective Dugan, playing the role of "Bob,"

walked with appellant to a van where the drugs were stored.     Dugan

asked appellant if he knew what was in the box.    Appellant

initially stated "monitors or computers" and then said, "[N]aw,

I'm just here to pick it up for Linda."

     Dugan told him the box contained marijuana and asked

appellant about compensation for his efforts.   Appellant denied

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any knowledge of the marijuana but expressed his willingness to

make a telephone call to inquire if "Bob" could be compensated.

The detective "slid the box down to a point where [appellant]

could put his hands on it."    Appellant then placed one hand on

each side of the box and, in the words of Dugan, "he took

possession of the package."    Dugan gave the "take down" signal,

and appellant was arrested within seconds of his placing his hands

on the package.

        After he was arrested and given his Miranda rights, appellant

gave the police a statement.    He initially stated he was at the

dealership to pick up microphones.       He then stated that he was

there to see "Bob," not to pick up microphones.      After some

hesitation, he then claimed that he was there to pick up computer

monitors, which the car dealership had never sold.      Appellant

further stated that he did not know what was in the package and

that he was there to look at a computer.      Appellant said several

times that he would like to help the police, but "these guys"

would kill him and his family.    He also noted that he would find

out who "set him up."    Finally, he admitted that his friend, Rico,

called him and asked him to pick up the package.      Appellant

stated, "Rico is a drug dealer.    He sent me up there to pick up

the package.    I just didn't think the package was going to be that

big."

        Appellant denied calling California and said he did not know

how anyone at the packaging company knew his name.

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                               ANALYSIS

     Appellant contends the evidence was not sufficient to prove

that he knowingly possessed, either actually or constructively,

the marijuana.

     When considering the sufficiency of the evidence on appeal in

a criminal case, we view the evidence in the light most favorable

to the Commonwealth, granting to it all reasonable inferences

fairly deducible therefrom.   See Higginbotham v. Commonwealth, 216

Va. 349, 352, 218 S.E.2d 534, 537 (1975).   "In so doing, we must

'"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 that may be

drawn therefrom."'"   Norman v. Commonwealth, 2 Va. App. 518, 520,

346 S.E.2d 44, 45 (1986) (quoting Parks v. Commonwealth, 221 Va.

492, 498, 270 S.E.2d 755, 759 (1980) (quoting Wright v.

Commonwealth, 196 Va. 132, 137, 82 S.E.2d 603, 606 (1954))).    The

trial court's judgment will not be set aside unless the judgment

is plainly wrong or without evidence to support it.   Josephs v.

Commonwealth, 10 Va. App. 87, 99, 390 S.E.2d 491, 497 (1990) (en

banc).

     Possession of a controlled substance may be actual or

constructive.    See Archer v. Commonwealth, 225 Va. 416, 418, 303

S.E.2d 863, 863 (1983).

          To support a conviction based upon
          constructive possession, "the Commonwealth
          must point to evidence of acts, statements,

                                - 4 -
          or conduct of the accused or other facts or
          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."

Drew v. Commonwealth, 230 Va. 471, 473, 338 S.E.2d 844, 845 (1986)

(quoting Powers v. Commonwealth, 227 Va. 474, 476, 316 S.E.2d 739,

740 (1984)).   See Eckhart v. Commonwealth, 222 Va. 447, 450, 281

S.E.2d 853, 855 (1981).

     Proof by circumstantial evidence "'is not sufficient . . . if

it engenders only a suspicion or even a probability of guilt.'"

Littlejohn v. Commonwealth, 24 Va. App. 401, 414, 482 S.E.2d 853,

859 (1997) (quoting Hyde v. Commonwealth, 217 Va. 950, 955, 234

S.E.2d 74, 78 (1977)).    "'"All necessary circumstances proved must

be consistent with guilt and inconsistent with innocence and

exclude every reasonable hypothesis of innocence."'"   Betancourt

v. Commonwealth, 26 Va. App. 363, 373, 494 S.E.2d 873, 878 (1998)

(quoting Stover v. Commonwealth, 222 Va. 618, 623, 283 S.E.2d 194,

196 (1981) (quoting Inge v. Commonwealth, 217 Va. 360, 366, 228

S.E.2d 563, 567 (1976))).   "When, from the circumstantial

evidence, 'it is just as likely, if not more likely,' that a

'reasonable hypothesis of innocence' explains the accused's

conduct, the evidence cannot be said to rise to the level of proof

beyond a reasonable doubt."   Littlejohn, 24 Va. App. at 414, 482

S.E.2d at 859 (quoting Haywood v. Commonwealth, 20 Va. App. 562,

567-68, 458 S.E.2d 606, 609 (1995)).    The Commonwealth need not

"'exclude every possible theory or surmise,'" but it must exclude

                                - 5 -
those hypotheses "'which flow from the evidence itself.'"

Cantrell v. Commonwealth, 7 Va. App. 269, 289-90, 373 S.E.2d 328,

338-39 (1988) (quoting Black v. Commonwealth, 222 Va. 838, 841,

284 S.E.2d 608, 609 (1981)).

     Our inquiry, therefore, is whether appellant was aware of the

presence and character of the marijuana found in the package and

whether he exercised dominion and control over the packaged drugs.

     We first examine the information that appellant had

concerning the shipment of drugs.    Appellant knew the drugs were

shipped by Nichols.   He was aware of the phone conversation

between Brereton and Nichols because he asked for "Bob" when he

arrived at the car dealership.    The detective had given Nichols

the fictitious name of "Bob" when he spoke to her.

     From the various phone calls, the detective knew that someone

named Jarvis Brown would arrive to pick up the package.    While

appellant denied any knowledge of the drugs, he volunteered to

make a telephone call to inquire if "Bob" would be compensated.

The fact finder could properly infer that appellant was in contact

with the source of the marijuana.

     When appellant was advised that the package contained

marijuana, he nevertheless put his hands on each side of the

package.   He did not retreat or disclaim the package.   His actions

were consistent with one who went to the dealership intending to

pick up the marijuana.



                                 - 6 -
     Appellant gave several contradictory explanations for his

presence at the dealership.   Initially, he said he was there to

pick up a microphone, then a computer monitor.   Ultimately, he

said he was sent there by a drug dealer to pick up a package but

claimed he was surprised the package was "that big."     The trial

court was entitled to infer that he was lying to conceal his

guilt.   See Black, 222 Va. at 842, 284 S.E.2d at 610.

     Further, appellant expressed concern that if he assisted the

police, "these guys" would kill him and his family.    This concern

about retaliation belies his claim that he did not know the

contents of the package.

     From the evidence, the fact finder could conclude that

appellant had been in contact with Nichols, who originally shipped

the drugs, and that appellant was sent to the dealership to pick

up the package.   The fact finder also could infer, since appellant

was in a position to discuss compensation with Nichols, he was

intimately connected with the drug operation.

     While appellant contends he did not exercise dominion and

control over the marijuana, the facts do not support his position.

The undercover detective slid the package to where appellant could

retrieve it.   Appellant, after being told that the package

contained marijuana, placed one hand on each side of the box.     The

detective characterized appellant's actions as "[taking]

possession of the package."



                               - 7 -
       Possession need not be actual, exclusive, or lengthy in order

to support a conviction; instead, the statute criminalizes

constructive or joint possession of illegal drugs for any

duration.   See Gillis v. Commonwealth, 215 Va. 298, 302, 208

S.E.2d 768, 771 (1974); Josephs, 10 Va. App. at 99, 390 S.E.2d at

497.

       The trial court could reasonably infer that, but for

appellant's arrest within seconds of his placing his hands on the

package, he would have picked up the package and left with it.

       Here, the evidence was sufficient beyond a reasonable doubt

that appellant was guilty of the offense.   We affirm the judgment

of the trial court.

                                                          Affirmed.




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