                                             COURT OF APPEALS OF VIRGINIA


              Present: Judges Frank, Alston and Senior Judge Bumgardner
UNPUBLISHED


              Argued at Chesapeake, Virginia


              JAMAL FEREBEE
                                                                                MEMORANDUM OPINION * BY
              v.     Record No. 0189-12-1                                         JUDGE ROBERT P. FRANK
                                                                                     DECEMBER 4, 2012
              COMMONWEALTH OF VIRGINIA


                              FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
                                             Dean W. Sword, Jr., Judge

                               Gregory K. Matthews (Office of the Public Defender, on brief), for
                               appellant.

                               David M. Uberman, Assistant Attorney General (Kenneth T.
                               Cuccinelli, II, Attorney General, on brief), for appellee.


                     Jamal Ferebee, appellant, was convicted in a bench trial, of possession with the intent to

              distribute marijuana, in violation of Code § 18.2-248.1. On appeal, he challenges the sufficiency of

              the evidence.1 For the reasons stated, we affirm the judgment of the trial court.

                                                        BACKGROUND

                     Based on a confidential informant’s tip that the driver of a particular vehicle was going to be

              in possession of a large amount of marijuana, police set up surveillance at the location mentioned by

              the confidential informant. Shortly thereafter, a vehicle matching the description appeared. A man

              matching the description of the suspect exited the vehicle from the driver’s seat, entered the gas

              station, and returned to the same vehicle within minutes.



                     *
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
                     1
                        Appellant only challenges the sufficiency of the evidence as to possession, not the intent
              to distribute.
         Appellant, who was not the subject of the confidential informant’s tip, remained in the front

passenger seat of the vehicle. As the driver returned, the police approached the vehicle. They

observed no furtive gestures by appellant.

         Detective Kevin Johnakin was among the officers who participated in the seizure of the

Volkswagen. When he approached the car, he immediately observed two large bags of marijuana

clearly visible on the transmission hump. The drugs were within both the driver’s and appellant’s

reach. Both appellant and the driver, later identified as Dennis Whigham, were arrested at the

scene.

         Whigham, a convicted felon and a long-time friend of appellant, testified on behalf of

appellant. Whigham explained that on January 18, 2011, he was driving to the store when he picked

up appellant. Whigham told the court that the marijuana in the car belonged to him and that

appellant was unaware of its presence. On cross-examination, the following exchange took place:

                Q.:     So you’re a convicted felon. Are you saying that you
                        weren’t going to sell this marijuana?

                A.:     No, sir. It was personal use.

                Q.:     Okay. And you’re saying that you’ve never smoked
                        marijuana around him, but you guys have been childhood
                        friends?

                A.:     Yeah, I mean, I probably have, but like he never smoked it.

                Q.:     Okay, and so he’s seen you smoke it then?

                A.:     I mean, he probably has.

         The court, in finding appellant guilty, found there was a significant amount of marijuana in

plain sight and concluded, “I don’t see how in the world anyone could have gotten in the car and not

seen these two bags sitting where they were sitting.” The trial court also found that the appellant

could have reached down and picked up the drugs.

         This appeal follows.

                                                 -2-
                                               ANALYSIS

        Appellant contends the evidence is insufficient to prove that he possessed the marijuana. 2

        When addressing the sufficiency of the evidence, we “‘presume the judgment of the trial

court to be correct’ and reverse only if the trial court’s decision is ‘plainly wrong or without

evidence to support it.’” Kelly v. Commonwealth, 41 Va. App. 250, 257, 584 S.E.2d 444, 447

(2003) (en banc) (quoting Davis v. Commonwealth, 39 Va. App. 96, 99, 570 S.E.2d 875, 876-77

(2002)). In practical terms, a reviewing court does not “‘ask itself whether it believes that the

evidence at the trial established guilt beyond a reasonable doubt.’” Stevens v. Commonwealth, 46

Va. App. 234, 249, 616 S.E.2d 754, 761 (2005) (en banc) (quoting Jackson v. Virginia, 443 U.S.

307, 318-19 (1979)) (emphasis in original), aff’d, 272 Va. 481, 634 S.E.2d 305 (2006). We ask

only whether “‘any rational trier of fact could have found the essential elements of the crime beyond

a reasonable doubt.’” Id. (quoting Kelly, 41 Va. App. at 257, 584 S.E.2d at 447). “‘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.’” Kelly, 41 Va. App. at 257-58, 584 S.E.2d at 447 (quoting Jackson, 443 U.S. at 319). Thus,

we do not “substitute our judgment for that of the trier of fact” even if our opinion were to differ.

Wactor v. Commonwealth, 38 Va. App. 375, 380, 564 S.E.2d 160, 162 (2002).

        “To establish ‘possession’ in the legal sense, not only must the Commonwealth show actual

or constructive possession of the drug by the defendant, it must also establish that the defendant


        2
         On brief, appellant cites legal authority regarding a principal in the second degree. “[A]
defendant is guilty as a principal in the second degree if he is guilty of some overt act done
knowingly in furtherance of the commission of the crime, or if he shared in the criminal intent of
the principal committing the crime.” McMorris v. Commonwealth, 276 Va. 500, 505, 666
S.E.2d 348, 351 (2008). In order to convict an accused as a principal in the second degree, the
Commonwealth must prove “that the defendant procured, encouraged, countenanced, or
approved the criminal act.” Id. at 505, 666 S.E.2d at 350. We do not discuss this position
because we find the evidence proved appellant acted as a principlal in the first degree.

                                                    -3-
intentionally and consciously possessed the drug with knowledge of its nature and character.”

Williams v. Commonwealth, 14 Va. App. 666, 669, 418 S.E.2d 346, 348 (1992) (citation omitted).

“Possession and not ownership is the vital issue. Possession may be joint or several. Two or

more persons may be in possession where each has the power of control and intends to exercise

control jointly.” Burnette v. Commonwealth, 194 Va. 785, 792, 75 S.E.2d 482, 487 (1953).

       To support a conviction based on constructive possession, “the Commonwealth must point

to 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 character of the substance and that it

was subject to his dominion and control.” Glasco v. Commonwealth, 26 Va. App. 763, 774, 497

S.E.2d 150, 155 (1998) (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.” Burchette v.

Commonwealth, 15 Va. App. 432, 434, 425 S.E.2d 81, 83 (1992) (citations omitted). However,

“[t]he Commonwealth need only exclude reasonable hypotheses of innocence that flow from the

evidence, not those that spring from the imagination of the defendant.” Hamilton v.

Commonwealth, 16 Va. App. 751, 755, 433 S.E.2d 27, 29 (1993).

       Whether a particular hypothesis is reasonable is a question of fact binding on appeal “‘so

long as the inferences are reasonable and justified.’” Cantrell v. Commonwealth, 7 Va. App. 269,

290, 373 S.E.2d 328, 339 (1988) (quoting Higginbotham v. Commonwealth, 216 Va. 349, 353, 218

S.E.2d 534, 537 (1975)).

       Although mere proximity to drugs is insufficient to establish possession, it is a circumstance

that may be probative in determining whether an accused possessed such drugs. Lane v.

Commonwealth, 223 Va. 713, 716, 292 S.E.2d 358, 360 (1982). “Ownership or occupancy of the

vehicle in which the drugs are found is likewise a circumstance probative of possession.” Glasco,

                                                -4-
26 Va. App. at 774, 497 S.E.2d at 155 (citations omitted). Thus, in resolving this issue, we must

consider “the totality of the circumstances disclosed by the evidence.” Womack v. Commonwealth,

220 Va. 5, 8, 255 S.E.2d 351, 353 (1979).

        Appellant cites Coward v. Commonwealth, 48 Va. App. 653, 633 S.E.2d 752 (2006), to

support his position. However, the facts in Coward distinguish it from the instant case. In Coward,

with the aid of a flashlight to illuminate the interior of the vehicle, the officer noticed a “hard white

substance inside a . . . clear plastic baggie” sitting on the console between the driver’s and

passenger’s seats. Id. at 656, 633 S.E.2d at 753. Coward was in the passenger seat. In reversing

Coward’s conviction, we held that while Coward’s occupancy of the vehicle and his proximity to

the drugs were factors to be considered, those two factors alone were not sufficient to convict. Id. at

658, 633 S.E.2d at 754. We emphasized there was no evidence that the baggie would have been

visible in the darkness of the passenger compartment without additional lighting. Id. at 660, 633

S.E.2d at 755. However, in the instant case, the fact that the officer immediately saw the drugs

without any mechanical assistance distinguishes this case from Coward.

        Likewise, in Jones v. Commonwealth, 17 Va. App. 572, 439 S.E.2d 863 (1994), the police

observed a small tray containing, among other objects, five small rocks of crack cocaine between

the passenger’s and driver’s seats. The officers described the rocks as two to three times the size of

the “brass head of a pen.” Id. at 573, 439 S.E.2d at 863. We reversed Jones’ conviction, finding no

evidence proved that Jones saw the small pieces of cocaine or that he recognized the rocks as

cocaine. Id. at 574, 439 S.E.2d at 864. Here, however, the size of the two bags compels a

conclusion that appellant saw the marijuana. Also, because the driver “probably” smoked

marijuana in front of appellant, it is reasonable to conclude that appellant knew the nature and

character of the marijuana.




                                                   -5-
        Smallwood v. Commonwealth, 278 Va. 625, 688 S.E.2d 154 (2009), is instructive.

Smallwood was the driver of a vehicle in which police found a weapon, in plain view, in a console

located between the driver’s seat and the passenger’s seat. Id. at 627, 688 S.E.2d at 155.

Smallwood acknowledged knowing the gun was there. Id. at 628, 688 S.E.2d at 155. The Supreme

Court of Virginia found his statement established he was aware of the presence and character of the

firearm, but also concluded, “and even without his admission, it strains credibility that someone

entering and exiting a small vehicle would fail to notice a ‘small .38 silver revolver’ that was in

‘plain view.’” Id. at 631, 688 S.E.2d at 157. Quoting Bolden v. Commonwealth, 275 Va. 144, 149,

654 S.E.2d 584, 586 (2008), the Court opined that the contraband was ‘“open and obvious to

someone looking in the vehicle, and it was located in immediate proximity to where [the defendant]

had been sitting.”’ Id. at 632, 688 S.E.2d at 157. The Smallwood analysis supports a finding that

appellant intentionally and consciously possessed the marijuana.

        Here, appellant was in close proximity to two bags of marijuana that the trial court found to

be a “significant amount” and was clearly visible to anyone in the car. Appellant was an occupant

of the vehicle, along with the driver. Appellant was within arm’s reach of the marijuana. Further,

while the driver was inside the gas station, appellant had exclusive dominion and control over the

marijuana. We should note that case law does not require that a suspect actually exercise dominion

and control over the drugs, only that the drugs are subject to his dominion and control. Bolden, 275

Va. at 148, 654 S.E.2d at 586. While appellant made no furtive gestures nor made any statements

concerning the drugs, it defies logic that appellant did not see the drugs that were in plain view and

seen by the officer as he approached the vehicle. Thus, the question becomes whether appellant had

guilty knowledge of the marijuana.

        Whigham testified that he “probably” smoked marijuana in front of appellant, “but like

[appellant] never smoked it.” The credibility of the witnesses and the weight accorded the

                                                 -6-
evidence are matters solely for the fact finder who has the opportunity to see and hear that

evidence as it is presented.” Sandoval v. Commonwealth, 20 Va. App. 133, 138, 455 S.E.2d

730, 732 (1995). The trier of fact is not required to accept a witness’ testimony, but instead is

free to “rely on it in whole, in part, or reject it completely.” Rollston v. Commonwealth, 11

Va. App. 535, 547, 399 S.E.2d 823, 830 (1991). While Whigham used the word “probably,” the

trial court was not obligated to accept this testimony. Moreover, the trial court was permitted to

consider Whigham’s prior felony convictions in assessing his credibility. See Code § 19.2-269.

The court could properly conclude that Whigham was not truthful with the court and that Whigham

did smoke marijuana in front of appellant, particularly when Whigham added that appellant “never

smoked it.” While Whigham could not testify he was certain that he smoked marijuana in front of

appellant, he was certain that appellant did not smoke it. The trial court could properly disregard

Whigham’s selective memory. Thus, the trial court, as fact finder, could properly infer appellant

knew of the nature and character of marijuana.

                                           CONCLUSION

       For the reasons stated, we find the evidence was sufficient to sustain appellant’s conviction

for possession of marijuana with the intent to distribute. Accordingly, appellant’s conviction is

affirmed.

                                                                                            Affirmed.




                                                 -7-
Alston, J., concurring.

       I concur with the decision of the learned majority to affirm appellant’s conviction in this

case. However, I write separately to emphasize my concern with what I see as the growing trend

in Virginia jurisprudence to, in my view, conflate constructive possession with mere proximity to

a controlled substance.

       “When a defendant on appeal challenges the sufficiency of the evidence to sustain a

conviction, we must examine the evidence that supports the conviction and allow the conviction

to stand unless it is plainly wrong or without evidence to support it.” Vincent v. Commonwealth,

276 Va. 648, 652, 668 S.E.2d 137, 139-40 (2008) (citing Code § 8.01-680; and Commonwealth

v. Jenkins, 255 Va. 516, 520, 499 S.E.2d 263, 265 (1998)). As recognized by the majority, “[a]

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

beyond a reasonable doubt.’” Stevens v. Commonwealth, 46 Va. App. 234, 249, 616 S.E.2d

754, 761 (2005) (en banc) (quoting Jackson v. Virginia, 443 U.S. 307, 318-19 (1979)), aff’d, 272

Va. 481, 634 S.E.2d 305 (2006). Rather, “[t]he issue upon appellate review is ‘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). “In sum, ‘[i]f there is evidence to support the conviction, the reviewing court is not

permitted to substitute its judgment, even if its view of the evidence might differ from the

conclusions reached by the finder of fact at the trial.’” Commonwealth v. McNeal, 282 Va. 16,

20, 710 S.E.2d 733, 735 (2011) (quoting Commonwealth v. Taylor, 256 Va. 514, 518, 506

S.E.2d 312, 314 (1998)).

       In light of this well-established and deferential standard of review, I feel bound, in the

instant case, to concur with the majority’s conclusion that the evidence was sufficient to prove

                                                -8-
appellant’s constructive possession of the marijuana. In finding appellant guilty, the trial court

necessarily concluded that appellant intentionally and consciously possessed the marijuana with

knowledge of its nature and character. See Williams v. Commonwealth, 14 Va. App. 666, 669,

418 S.E.2d 346, 348 (1992). I agree with the majority that there was evidence in the record,

however scant, to support this finding of fact by the trial court. The marijuana was plainly

visible within the car, and its illegal nature was apparent. In this regard, Detective Johnakin

testified that he “immediately observed two large baggies of marijuana in plain view” in the car.

There was no testimony that the appearance of the marijuana was in any way ambiguous. This

Court has held that “[w]hen the illegal nature of the substance is apparent — as it is here — that

circumstance supports a finding of the defendant’s guilty knowledge of the contraband he

possesses.” Christian v. Commonwealth, 59 Va. App. 603, 611, 721 S.E.2d 809, 813 (2012).

With the additional circumstance of Whigham’s testimony that he “probably” smoked marijuana

in front of appellant, from which the trial court was entitled to infer that appellant was familiar

with the appearance of marijuana, I believe the evidence was in fact sufficient to support

appellant’s conviction in this case. 3



        3
           However, I do question whether Whigham’s testimony is necessarily sufficient to show
that appellant was familiar with the appearance of marijuana, in the form it was found in this
case. While this testimony supports a finding that appellant may have been in the presence of
marijuana before, it does not necessarily show that appellant had actually seen marijuana or seen
it in a form other than that in which it is smoked and would be able to recognize a bag of loose
marijuana on sight. Whigham’s testimony may suggest that appellant would be able to identify
marijuana by smell, but there is no evidence that Whigham’s car smelled of marijuana. Again,
however, I will not substitute my judgment for that of the finder of fact on this issue. See
McNeal, 282 Va. at 20, 710 S.E.2d at 735 (quoting Taylor, 256 Va. at 518, 506 S.E.2d at 314).
         In addition, it is troubling to me that other factors usually identified in support of a
finding of knowing and intentional possession of a controlled substance are absent in this case.
For example, there was no odor of marijuana in the car, appellant was not in sole possession of
the car, appellant made no furtive gestures, appellant gave no self-serving testimony from which
the trial court could infer he was lying to conceal his guilt, and appellant’s hypothesis of
innocence — that the marijuana belonged to Whigham, not appellant — did not rely on the
implausible claim that someone must have abandoned the contraband, a valuable substance, in
                                                   -9-
       However, I am concerned by what I see as the growing trend in Virginia jurisprudence to

conflate mere proximity to a controlled substance with possession of it. “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.” Young v. Commonwealth, 275 Va. 587, 591, 659 S.E.2d 308, 310

(2008). Thus, possession normally requires both a physical act, the ability to subject the

substance to one’s dominion and control, and a mental state, knowing and intentional possession.

“That knowledge is an essential element of the crime.” Id. (emphasis added).

       In my view, our jurisprudence should not encourage a factfinder to merely assume a

defendant’s familiarity with a controlled substance. If knowing possession is an essential

element of the crime, see id., then the Commonwealth should be required to prove this element

beyond a reasonable doubt, just as it is required to prove every other element of the offense.

Guilty knowledge should not be presumed; it must be established by the evidence. This is not a

mere technicality of our law; rather, it is a legal principle that we must observe to safeguard the

innocent from criminal liability as a result of unlawful acts perpetrated by others of which they

have no knowledge.

       Furthermore, Virginia jurisprudence requires not only knowing possession of the

controlled substance, but also intentional possession. Id. There is a distinction between

knowledge that one is in the presence of a controlled substance and the intent to possess the

controlled substance. I am troubled by the seemingly increasing willingness of Virginia courts to

overlook this crucial element of constructive possession and find guilt based on mere proximity

to and knowledge of a controlled substance, absent any direct evidence of the intent to possess it.




the car. Cf. Ervin v. Commonwealth, 57 Va. App. 495, 505-21, 704 S.E.2d 135, 140-48 (2011)
(en banc).
                                           - 10 -
       In short, I concur with the majority in this case in light of the extremely deferential

standard of review and the trial court’s implicit findings of fact. However, I am concerned that

the controlling principles in this area of the law may well be evolving to the point where mere

proximity to a controlled substance is sufficient to establish constructive possession. In my

view, legal culpability must be based on more than mere proximity. If my perception of a

jurisprudential drift conflating proximity with possession is accurate, I would be seriously

concerned that criminal liability will extend to those with even the most tenuous connections to

the controlled substance. Consistent with the legal standard of proof required by Virginia

precedent, the facts found by the trial court in this case minimally established more than mere

proximity. For that reason alone, I concur with the judgment of the majority.




                                               - 11 -
