                               COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Fitzpatrick, Judge McClanahan and Senior Judge Willis
Argued by teleconference


JUDITH MARIE SCOTT
                                                           MEMORANDUM OPINION∗ BY
v.     Record No. 0426-05-2                             JUDGE ELIZABETH A. McCLANAHAN
                                                                 MARCH 7, 2006
COMMONWEALTH OF VIRGINIA


                 FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
                               Michael C. Allen, Judge

                 Margaret Ann Englisby (Englisby, Englisby, Vaughn & Englisby,
                 on brief), for appellant.

                 Rosemary V. Bourne, Assistant Attorney General (Judith Williams
                 Jagdmann, Attorney General, on brief), for appellee.


       The trial court convicted Judith Marie Scott of possession of cocaine in violation of Code

§ 18.2-250. She contends the evidence was insufficient to prove she constructively possessed the

cocaine found in her motel room. For the reasons that follow, we affirm her conviction.

                                        I. BACKGROUND

       We view the evidence and the reasonable inferences in the light most favorable to the

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

denied, 540 U.S. 972 (2003). In so doing, “‘we discard the evidence of the accused in conflict

with that of the Commonwealth.’” Parks v. Commonwealth, 221 Va. 492, 498, 270 S.E.2d 755,

759 (1980) (citation omitted). Officer Jay C. McKenney of the Chesterfield County Police

Department was dispatched to investigate a possible fight in a motel room. As he approached,




       ∗
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
McKenney heard yelling and saw Scott attempting to leave a room. A man, later identified as

Keith Grant, grabbed Scott around the neck and pulled her back into the room. McKenney

entered the room and saw Scott on her back with Grant on top of her. McKenney took Grant into

custody and found drug paraphernalia in his possession. At the same time, Scott spoke with

another officer on the scene and lied about her name.

       The room was registered to Scott and Grant, who had been staying there for at least a day

and a half. After obtaining Scott’s consent, McKenney searched the room. He found two “glass

tube smoking device[s] with charred residue” in a nightstand between two beds. He also

recovered a silver spoon containing a white powder residue, later determined to be cocaine, from

a toiletry box in the bathroom. The box also contained, among other items, feminine hygiene

products and lotion. Scott acknowledged that the items in the box were “her belongings.”

       At trial, Scott denied that the drugs found in the motel room belonged to her. She

testified that Grant and his son also kept toiletry items in the box where the spoon with the

cocaine residue was found. Scott initially admitted that she put “things” belonging to her in the

box, but later denied doing so. She then stated, “I don’t know who did it. . . . I just know it

happened.” Scott also admitted she was the “only lady” who had spent the night in the motel

room since she and Grant had registered.

                                          II. ANALYSIS

       We can reverse a trial court’s factual finding only when it is unsupported by credible

evidence or plainly wrong. Seaton v. Commonwealth, 42 Va. App. 739, 746, 595 S.E.2d 9, 12

(2004). Thus, the only relevant inquiry is “whether . . . any rational trier of fact could have

found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443

U.S. 307, 319 (1979) (emphasis in original). See also Kelly v. Commonwealth, 41 Va. App.

250, 257, 584 S.E.2d 444, 447 (2003) (en banc).

                                                -2-
       To convict for possession of cocaine under Code § 18.2-250, the Commonwealth must

prove that the defendant had either actual or constructive possession of the contraband. Wilson

v. Commonwealth, 46 Va. App. 408, 432, 617 S.E.2d 431, 443 (2005) (en banc). Constructive

possession can be shown by 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.’” Williams v.

Commonwealth, 42 Va. App. 723, 735, 594 S.E.2d 305, 311 (2004) (internal quotation marks,

brackets, and citations omitted); Kelly, 41 Va. App. at 260, 584 S.E.2d at 449. “To resolve the

issue, the Court must consider the totality of the circumstances established by the evidence.”

Williams, 42 Va. App. at 735, 594 S.E.2d at 311. “To be sure, in drug cases no less than any

other, it ‘is axiomatic that any fact that can be proved by direct evidence may be proved by

circumstantial evidence.’” Haskins v. Commonwealth, 44 Va. App. 1, 6, 602 S.E.2d 402, 404

(2004) (quoting Etherton v. Doe, 268 Va. 209, 212-13, 597 S.E.2d 87, 89 (2004)).

       There is credible evidence in this case to support the rationality of the trial court’s

findings. Among the factors to be considered in determining whether Scott possessed the

contraband are her proximity to the illegal drugs and occupancy of the premises where the

contraband was found. Walton v. Commonwealth, 255 Va. 422, 426, 497 S.E.2d 869, 872

(1988); Maye v. Commonwealth, 44 Va. App. 463, 484, 605 S.E.2d 353, 363 (2004); Williams,

42 Va. App. at 735, 594 S.E.2d at 311. The evidence disclosed that the motel room in which the

cocaine was found was registered to and occupied by Scott, along with Grant, for at least a day

and a half. “[T]he Commonwealth was not required to prove that [Scott] was the only person

capable of exercising dominion and control over the [cocaine]. As we have held, a defendant’s

possession of an illegal substance need not be exclusive.” Wilson, 46 Va. App. at 434, 617




                                                -3-
S.E.2d at 443 (citations and internal quotation marks omitted). It may instead be joint. Archer v.

Commonwealth, 225 Va. 416, 418, 303 S.E.2d 863, 863 (1983).

       Beyond Scott’s proximity to the cocaine, occupancy of and registration in the motel room

where the drug was found, the specific location of the cocaine was in the bathroom in a toiletry

box among items belonging to Scott. Drug paraphernalia was also found in the nightstand

between the two beds in the room, and Scott admitted to having been “caught” with cocaine in

the past, thus confirming her familiarity with the character of the substance.

       Moreover, the trial court rejected Scott’s attempted explanation as untrue: “I’ve listened

carefully to the testimony and there’s conflict on certain points, and I’ve observed the demeanor

and tried to consider the intelligence, the bias, the opportunity for knowing the truth of the

witnesses, and I find that Ms. Scott’s testimony is uncredible [sic], and I don’t believe she’s been

candid with the Court.”1 The trial judge was therefore entitled to “draw the reasonable inference

that [her] explanation was made falsely in an effort to conceal [her] guilt. A false or evasive

account is a circumstance . . . that a fact-finder may properly consider as evidence of guilty

knowledge.” Covil v. Commonwealth, 268 Va. 692, 696, 604 S.E.2d 79, 82 (2004) (citations

omitted); see also Commonwealth v. Duncan, 267 Va. 377, 385, 593 S.E.2d 210, 215 (2004)

(noting that the fact finder may discount an accused’s self-serving explanation as a mere effort at

“lying to conceal his guilt”); Rollston v. Commonwealth, 11 Va. App. 535, 548, 399 S.E.2d 823,

831 (1991) (“A defendant’s false statements are probative to show he is trying to conceal his

guilt, and thus is evidence of his guilt.”); cf. Wright v. West, 505 U.S. 277, 296 (1992) (trier of

fact may consider perjured testimony as affirmative evidence of guilt).




       1
         In addition to lying about her name and giving conflicting testimony regarding the
contents in the box in the bathroom, Scott admitted that she was a convicted felon and that she
had been convicted of multiple misdemeanor crimes involving moral turpitude.
                                               -4-
       Viewed in the light most favorable to the Commonwealth, a rational fact finder could

conclude that the evidence established that Scott “was aware of both the presence and character”

of the cocaine found in her motel room and that the substance was “subject to [her] dominion

and control.” Williams, 42 Va. App. at 473, 594 S.E.2d at 311 (internal quotations and citations

omitted). Accordingly, we affirm her conviction.

                                                                                       Affirmed.




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