                  COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Willis and Bumgardner
Argued at Richmond, Virginia


COREY EVANDER JOHNSON
                                          MEMORANDUM OPINION * BY
v.   Record No. 2023-00-2             JUDGE RUDOLPH BUMGARDNER, III
                                               AUGUST 7, 2001
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
             Buford M. Parsons, Jr., Judge Designate

          Douglas A. Ramseur (Bowen, Bryant, Champlin &
          Carr, on brief), for appellant.

          Marla Graff Decker, Assistant Attorney
          General (Mark L. Earley, Attorney General;
          John H. McLees, Jr., Senior Assistant
          Attorney General, on brief), for appellee.


     The trial court convicted Corey Evander Johnson of

possession of marijuana, possession of cocaine with intent to

distribute, possession of heroin with intent to distribute, and

of driving under the influence.    He appeals only the cocaine and

heroin convictions arguing the evidence was insufficient to

prove that he knowingly and intentionally possessed cocaine or

heroin, or that he intended to distribute them.   Concluding the

evidence permitted those findings, we affirm.

     Officer Jonathan Mondrey stopped the defendant at 2:21 a.m.

for speeding 114 miles per hour.   No one else was in the car,


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
and the officer smelled alcohol coming from the vehicle as he

approached it.   After conducting field sobriety tests, the

officer arrested the defendant for driving under the influence.

       Following the arrest, the officer searched the defendant's

car.   As he opened the driver's door, the officer saw what he

believed to be a plastic bag of marijuana.    It was "sticking up

out of the pocket" of the driver's door.   The pocket had a

spring-loaded lid which could not fully close because the bag of

marijuana was protruding from it.   The officer found more drugs

in the same compartment once he removed the marijuana.   A small

corner baggie contained a white substance, which the officer

believed was cocaine.   That baggie also contained three smaller

corners of crack cocaine.   A cigar case broken in half contained

eighteen individually wrapped baggies of crack cocaine in one

half and seven aluminum foil packets of heroin and a baggie

corner of heroin in the other half.

       "On appeal, 'we review the evidence in the light most

favorable to the Commonwealth, granting to it all reasonable

inferences fairly deducible therefrom.'"     Archer v.

Commonwealth, 26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997)

(citation omitted).   The marijuana was plainly visible, sticking

out of the pocket of the door whenever that door was opened.

The defendant was the driver and would have opened that door

when he entered the car.    If the marijuana was immediately



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visible to the officer upon opening the door, it would have been

visible to the defendant when he opened the door.

     When the door was closed, the compartment was immediately

adjacent and accessible to the driver.   It was, and was designed

to be, a convenient place for the driver to secure items.     The

defendant was both driver and sole occupant.    No evidence

suggested anyone else had access to the car or the compartment.

An accused's presence in a vehicle "where illicit drugs were

discovered is a circumstance that may be considered together

with other evidence tending to prove" that he "exercised

dominion and control over items in the vehicle . . . in order to

prove that [he] constructively possessed the contraband."

Burchette v. Commonwealth, 15 Va. App. 432, 435, 425 S.E.2d 81,

83 (1992) (citation omitted).   The evidence permits the

reasonable conclusion that the defendant either put the

marijuana in the pocket himself or saw it and knew of it.

     The evidence also permits the reasonable conclusion that

the cocaine and heroin were linked with the marijuana and all

part of one cache.   The drugs were carelessly stuffed in the

pocket so they spilled out and remained easily visible because

the lid could not close.   The manner and place of secreting the

drugs permitted the inference that one individual had used that

compartment to stash a single hoard of drugs.   "Furthermore,

proof that a person is in close proximity to contraband is a

relevant fact that, depending on the circumstances, may tend to

                                - 3 -
show that . . . [as the car's sole occupant, the defendant]

necessarily knows of the presence, nature, and character of a

substance that is found there."     Id.   See Hamilton v.

Commonwealth, 16 Va. App. 751, 754, 433 S.E.2d 27, 28 (1993)

(defendant's proximity to drugs and occupancy in car are factors

to consider).

     Constructive possession of illegal contraband "may be

established by . . . '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) (citation omitted).

We conclude the evidence sufficiently proves beyond a reasonable

doubt that the defendant possessed the marijuana, cocaine, and

heroin in the pocket of the driver's door.

     Circumstantial evidence is often necessary to prove a

person's intent to distribute.    "Such evidence may include the

quantity of drugs and cash possessed and whether appellant used

drugs."   Welshman v. Commonwealth, 28 Va. App. 20, 37, 502

S.E.2d 122, 130 (1998) (en banc) (citation omitted).        The

Commonwealth presented evidence that the amount and packaging of

the cocaine and heroin were inconsistent with personal use.       The

officer did not find any devices used to ingest cocaine or

heroin.   "[T]he absence of paraphernalia suggestive of personal

use . . . [is] regularly recognized as [a] factor[] indicating

                                 - 4 -
an intent to distribute."    Id. (citation omitted).   The variety

of packaged drugs was consistent with an inventory for sale

rather than a supply for personal use.   A reasonable conclusion

from the evidence was that the defendant possessed the

assortment of drugs for distribution.

     The expert witness conceded that the lack of a pager,

cellular phone, scales, or cash could suggest personal use.

However, the finder of fact resolves conflicts in the evidence

and from that evidence draws the inferences.   "The fact finder,

who has the opportunity to see and hear the witnesses, has the

sole responsibility to determine their credibility, the weight

to be given their testimony, and the inferences to be drawn from

proven facts."   Commonwealth v. Taylor, 256 Va. 514, 518, 506

S.E.2d 312, 314 (1998) (citations omitted).    "If 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."    Id. (citations omitted).

     The evidence was sufficient to prove beyond a reasonable

doubt that the defendant was guilty of possession of cocaine

with intent to distribute and of possession of heroin with

intent to distribute.    Accordingly, we affirm the convictions.

                                                           Affirmed.




                                - 5 -
Benton, J., dissenting.

     To prove beyond a reasonable doubt that an accused

constructively possessed a controlled substance, "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 [accused] 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).   Furthermore, Code § 18.2-250

could not be clearer:    "Upon the prosecution of a person [for

possession of a controlled substance], ownership or occupancy of

. . . [a] vehicle upon or in which a controlled substance was

found shall not create a presumption that such person either

knowingly or intentionally possessed such controlled substance."

          [W]ell established principles apply to
          testing the sufficiency of circumstantial
          evidence. . . .

             "[I]f the proof relied upon by the
          Commonwealth is wholly circumstantial, as it
          here is, then to establish guilt beyond a
          reasonable doubt all necessary circumstances
          proved must be consistent with guilt and
          inconsistent with innocence. They must
          overcome the presumption of innocence and
          exclude all reasonable conclusions
          inconsistent with that of guilt. To
          accomplish that, the chain of necessary
          circumstances must be unbroken and the
          evidence as a whole must satisfy the guarded
          judgment that both the corpus delicti and
          the criminal agency of the accused have been
          proved to the exclusion of any other
          rational hypothesis and to a moral
          certainty."

                                - 6 -
                But, circumstances of suspicion, no
             matter how grave or strong, are not proof of
             guilt sufficient to support a verdict of
             guilty. The actual commission of the crime
             by the accused must be shown by evidence
             beyond a reasonable doubt to sustain his
             conviction.

Clodfelter v. Commonwealth, 218 Va. 619, 623, 238 S.E.2d 820,

822 (1977) (citations omitted).

        No evidence proved that the car Corey Evander Johnson was

driving was his.    No evidence proved that he knew the controlled

substances were in the partially closed compartment on the car's

door.    No evidence proved he could see in the nighttime the

plastic bag that protruded from the compartment.    The evidence

proved only his proximity to the substances.    "Evidence merely

that the accused was in the proximity of controlled substances

is insufficient . . . to prove that the accused was aware of the

presence and character of a controlled substance."     Jones v.

Commonwealth, 17 Va. App. 572, 574, 439 S.E.2d 863, 864 (1994).

        Inferences that are drawn from suspicious circumstances

alone are not sufficient to prove knowing possession of a

controlled substance.    Even if it is probable that the

controlled substances in the car belonged to Johnson,

probability of guilt is insufficient to warrant a criminal

conviction.     Crisman v. Commonwealth, 197 Va. 17, 21, 87 S.E.2d

796, 799 (1955).    Suspicious circumstances "'no matter how grave

or strong, are not proof of guilt sufficient to support a

verdict of guilty.    The actual commission of the crime by the

                                 - 7 -
accused must be shown by evidence beyond a reasonable doubt to

sustain his conviction.'"   Id. (quoting Powers v. Commonwealth,

182 Va. 669, 676, 30 S.E.2d 22, 25 (1944)).

     Furthermore, the Commonwealth's evidence proved that the

quantity of controlled substances found in the car could be

consumed by a single user of narcotics over several days.

Except for inferences drawn from that quantity, the record

contains no evidence of an intent to distribute.   Those

inferences, however, do not exclude every reasonable hypothesis

of innocence and, therefore, fail to prove intent to distribute.

Clodfelter, 218 Va. at 623, 238 S.E.2d at 822.

     For these reasons, I would reverse the convictions and

dismiss the indictments.




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