                               COURT OF APPEALS OF VIRGINIA


Present: Judges Humphreys, Petty and Alston
Argued at Richmond, Virginia


CHRISTOPHER CARL ADKINS
                                                               MEMORANDUM OPINION * BY
v.     Record No. 0313-08-2                                     JUDGE WILLIAM G. PETTY
                                                                     JULY 28, 2009
COMMONWEALTH OF VIRGINIA


                  FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                               Beverly W. Snukals, Judge

                 Edwin F. Brooks for appellant.

                 Jennifer C. Williamson, Assistant Attorney General (Robert F.
                 McDonnell, Attorney General, on brief), for appellee.


       The trial court convicted appellant, Christopher Carl Adkins, of one count of possession

with intent to distribute cocaine, in violation of Code § 18.2-248, and one count of distribution of a

controlled substance within 1,000 feet of school property, in violation of Code § 18.2-255.2.

Adkins appeals, arguing that the evidence adduced in the trial court was not sufficient to prove that

he possessed the drugs.

       Because the parties are fully conversant with the record in this case and this

memorandum opinion carries no precedential value, we recite only those facts and incidents of

the proceedings as are necessary to the parties’ understanding of the disposition of this appeal.

On appeal, we view those facts and incidents in the “light most favorable” to the prevailing party

below, the Commonwealth, Commonwealth v. Hudson, 265 Va. 505, 514, 578 S.E.2d 781, 786

(2003), and we grant to that party all fair inferences flowing therefrom. Coleman v.


       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
Commonwealth, 52 Va. App. 19, 21, 660 S.E.2d 687, 688 (2008); Crowder v. Commonwealth,

41 Va. App. 658, 663 n.2, 588 S.E.2d 384, 387 n.2 (2003).

       In this appeal, Adkins challenges the sufficiency of the evidence to prove that he possessed

cocaine. Adkins also includes, with his sufficiency argument, a contention that the trial court

erred by admitting a police officer’s testimony that he found a manila envelope with Adkins’

name written on it inside a gym bag along with the drugs. However, “[t]he admissibility of

evidence and the sufficiency of evidence are distinct issues.” Banks v. Mario Indus., 274 Va.

438, 455, 650 S.E.2d 687, 696 (2007). And, we note that in the order granting this appeal, this

Court specifically denied an appeal on Adkins’ evidentiary argument. Accordingly, his

evidentiary argument is outside the scope of the question presented on appeal, and we will only

address Adkins’ sufficiency argument in this opinion. See Rule 5A:12(c).

       “Sufficiency-of-the-evidence review involves assessment by the courts of whether the

evidence adduced at trial could support any rational determination of guilt beyond a reasonable

doubt.” United States v. Powell, 469 U.S. 57, 67 (1984). As an appellate court, we 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). It follows that a reviewing

court does not “ask itself whether it believes that the evidence at the trial established guilt

beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 318-19 (1979) (emphasis in

original and citation omitted). Instead, we ask only “‘whether, after viewing the evidence in the

light most favorable to the prosecution, any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt.’” Maxwell v. Commonwealth, 275 Va. 437,

442, 657 S.E.2d 499, 502 (2008) (quoting Jackson, 443 U.S. at 319) (emphasis in original).

These principles recognize that an appellate court is “not permitted to reweigh the evidence,”

Nusbaum v. Berlin, 273 Va. 385, 408, 641 S.E.2d 494, 507 (2007), because appellate courts have

                                                 -2-
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).

       Adkins predicates his sufficiency argument on this Court “giv[ing] no substantive

consideration to the testimony regarding the envelope” bearing Adkins’ name. Appellant’s Br. at

7. Adkins argues that, in the absence of the envelope, there was no evidence establishing

anything beyond his mere proximity to the drugs. Appellant’s Br. at 7. However, as discussed

supra, whether the envelope was admitted in error is not at issue before this Court. Moreover,

“[w]hen a defendant challenges on appeal the sufficiency of the evidence to sustain his

conviction, the appellate court has a duty to examine all the evidence that tends to support the

conviction, [and therefore] must consider all the evidence admitted at trial that is contained in the

record.” Bolden v. Commonwealth, 275 Va. 144, 147, 654 S.E.2d 584, 586 (2008).

       In order to convict Adkins of possession of cocaine with the intent to distribute, the

Commonwealth had to prove the element of possession. At trial, the Commonwealth relied on a

theory of constructive possession. “Constructive possession may be established by evidence of

acts, statements, or conduct of the accused or other facts or circumstances which tend to show

that the defendant was aware of both the presence and the character of the substance and that it

was subject to his dominion and control.” Logan v. Commonwealth, 19 Va. App. 437, 444, 452

S.E.2d 364, 368-69 (1994) (en banc) (citations omitted). Constructive possession may be

established by circumstantial evidence provided such evidence excludes every reasonable

hypothesis of innocence that flows from the evidence. See Tucker v. Commonwealth, 18

Va. App. 141, 143, 442 S.E.2d 419, 420 (1994); Hamilton v. Commonwealth, 16 Va. App. 751,

755, 433 S.E.2d 27, 29 (1993). Whether a hypothesis of innocence is reasonable is a question of

fact. See Cantrell v. Commonwealth, 7 Va. App. 269, 290, 373 S.E.2d 328, 339 (1988).




                                                -3-
          In this case, Adkins was lying asleep on one of two beds in a small motel room. The

room was filled with a quantity of both powdered and crack cocaine, glasses, jars, and spoons

used in mixing the cocaine, and papers on which the newly manufactured crack cocaine had been

set out to dry—all of which were sitting around the room in plain view. Moreover, a gym bag

containing glasses and spoons of the kind used in the manufacture of crack cocaine and a manila

envelope bearing Adkins’ name was in the room as well. “[P]roof that a person is in close

proximity to contraband is a relevant fact that, depending on the circumstances, may tend to

show that, as an owner or occupant of [the premises on which the drugs were located] . . . the

person necessarily knows of the presence, nature, and character of a substance that is

found there.” Burchette v. Commonwealth, 15 Va. App. 432, 435, 425 S.E.2d 81, 83 (1992)

(citations omitted); see also Eckhart v. Commonwealth, 222 Va. 447, 450, 281 S.E.2d 853, 855

(1981).

          The inference that Adkins had knowledge, dominion, and control over the drugs is

compelling in this case. Here, Adkins was only a few feet away from the contraband. He had to

have walked into the motel room, past a large quantity of drugs and paraphernalia—including a

microwave oven in which crack cocaine had been cooked and papers on which crack cocaine had

been set to dry—to reach the bed in which he was sleeping. Moreover, a gym bag containing an

envelope with Adkins’ name on it, along with glasses and spoons of the type used in the

manufacture of crack cocaine, was in the room, and Adkins had a large quantity of cash in his

pants pocket. Both the contents of the gym bag and the amount of cash Adkins was carrying

indicate that Adkins had possession of the cocaine.

          Based on the totality of the circumstances presented to the trial court, we cannot say that

its determination that Adkins both had knowledge of the character of the crack cocaine and

exercised dominion and control over it was plainly wrong or without evidentiary support.

                                                  -4-
Instead, taking the evidence adduced at trial as a whole, the evidence supports the trial court’s

determination that Adkins possessed the drugs based on the evidence in the gym bag linking

Adkins to the drugs and the plethora of drug paraphernalia in the room.

       Accordingly, we affirm Adkins’ convictions.

                                                                                     Affirmed.




                                                -5-
