                                 COURT OF APPEALS OF VIRGINIA


Present: Judges Frank, Kelsey and Haley
Argued at Richmond, Virginia


CODY JARRELL ROBINSON
                                                                MEMORANDUM OPINION * BY
v.       Record No. 2697-08-2                                   JUDGE JAMES W. HALEY, JR.
                                                                     JANUARY 19, 2010
COMMONWEALTH OF VIRGINIA


                    FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                                Clarence N. Jenkins, Jr., Judge

                   Cassandra M. Hausrath, Assistant Public Defender (Office of the
                   Public Defender, on briefs), for appellant.

                   John W. Blanton, Assistant Attorney General (William C. Mims,
                   Attorney General, on brief), for appellee.


                                          I. INTRODUCTION

         Appealing his conviction for possession of ecstasy with intent to distribute in violation of

Code § 18.2-248, Cody Jarrell Robinson argues the evidence was insufficient to prove his

knowledge of the nature and character of that drug. We affirm.

                                          II. BACKGROUND

         On January 21, 2008, Detective Mary Sleem of the Richmond Police Department

conducted a traffic stop of a vehicle in which Robinson was a passenger. As Sleem approached

the vehicle, she noticed an odor of raw marijuana. She asked the driver and Robinson to exit the

vehicle. Sleem informed Robinson that she smelled marijuana and inquired whether Robinson

possessed any illegal substances. Robinson stated he had marijuana in one of the pockets of his

jeans.


         *
             Pursuant to Code § 17.1-413, this opinion is not designated for publication.
       Sleem retrieved a single clear bag from Robinson’s pocket. Inside the bag were thirteen

smaller bags containing marijuana. Another bag within the larger bag contained seven

individually wrapped tablets of ecstasy. Sleem also recovered $372 in cash.

       Sleem asked Robinson about the nature of the pills. In response to a question about

whether he took prescription medication, Robinson replied in the negative. Robinson also

disclaimed knowledge of the nature of the pills. He claimed he found them on the side of the

road on the Mechanicsville Turnpike.

       A grand jury indicted Robinson for possession of ecstasy with intent to distribute. A

bench trial was held on September 9, 2008, at which Sleem testified to the above relevant facts.

The prosecution also presented the testimony of Sergeant Michael Talley of the Richmond Police

Department, who testified as an expert on ecstasy distribution. He testified the value of the

ecstasy pills was around eight to ten dollars each, but no more than seventy-five dollars together.

He further testified the pills were packaged in a manner consistent with intent to distribute.

       Sergeant Talley also testified that the individually packaged ecstasy pills were stamped.

He explained:

                        Each stamp represents who the producer is. It’s slang,
                something like a logo. You’ve got several different logos here;
                you’ve got a “G” on one, you’ve got a female on another one, a
                naked female in sort of a crouched position, a “T” on one. So this
                indicates that it’s more than likely coming from several different
                sources.

                       [Prosecutor]: Is it common in your experience for ecstasy
                to have these types of logo markings on it?

                       [Talley]: The pills, yes.

                          *       *       *         *    *       *       *




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                        [Defense counsel]: It’s not listed in any pharmaceutical
               reference? These pills are something somebody just made in their
               home lab somewhere?

                      [Talley]: Yes.

       The trial court found Robinson guilty of possession of ecstasy with intent to distribute. In

making its ruling, the court expressly declined to credit Robinson’s statement to Sleem that he

discovered the pills on the side of the road. The court stated: “The Court doesn’t find that to be

credible then he puts the same bag inside the bag with the marijuana.” The court also noted:

“And the Court finds that based upon all of the circumstances of the case, including the money

that he had . . . the way the other items of marijuana were packaged, that he did have the

knowledge necessary . . . .”

                                         III. ANALYSIS

       On appeal, we view “the evidence in the light most favorable to the Commonwealth, the

prevailing party in the circuit court, and we accord the Commonwealth the benefit of all

reasonable inferences deducible from the evidence.” Britt v. Commonwealth, 276 Va. 569, 573,

667 S.E.2d 763, 765 (2008). We “will affirm the judgment unless the judgment is plainly wrong

or without evidence to support it.” Bolden v. Commonwealth, 275 Va. 144, 148, 654 S.E.2d

584, 586 (2008).

       The Court employs this deferential standard of review “not only to the historical facts

themselves, but the inferences from those facts as well.” Cooper v. Commonwealth, 54 Va. App.

558, 572, 680 S.E.2d 361, 368 (2009) (internal quotation marks and citation omitted). “The

inferences to be drawn from proven facts, so long as they are reasonable, are within the province

of the trier of fact.” Hancock v. Commonwealth, 12 Va. App. 774, 782, 407 S.E.2d 301, 306

(1991). Thus, a fact finder may “draw reasonable inferences from basic facts to ultimate facts,”

Noakes v. Commonwealth, 54 Va. App. 577, 585, 681 S.E.2d 48, 51 (2009) (en banc) (internal


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quotation marks and citation omitted), unless doing so would push “into the realm of non

sequitur,” Thomas v. Commonwealth, 48 Va. App. 605, 608, 633 S.E.2d 229, 231 (2006)

(internal quotation marks and citation omitted).

       Robinson relies upon Young v. Commonwealth, 275 Va. 587, 659 S.E.2d 308 (2008).

There our Supreme Court stated:

                        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. Burton v.
                Commonwealth, 215 Va. 711, 713, 213 S.E.2d 757, 758 (1975).
                Actual or constructive possession alone is not sufficient. Id. at
                713, 213 S.E.2d at 759. “The Commonwealth must also establish
                that the defendant intentionally and consciously possessed it with
                knowledge of its nature and character.” Id. (citations omitted)
                (emphasis added). That knowledge is an essential element of the
                crime.

                           *      *       *        *      *      *       *

                We do not agree with the Court of Appeals’ statement in Josephs 1
                that “[p]ossession of a controlled drug gives rise to an inference of
                the defendant’s knowledge of its character,” insofar as that
                statement can be read to imply that bare possession, without more,
                may furnish proof, beyond a reasonable doubt, of the essential
                element of guilty knowledge. Countless scenarios can be
                envisioned in which controlled substances may be found in the
                possession of a person who is entirely unaware of their nature and
                character. We adhere to our holding in Burton, quoted above, that
                actual or constructive possession alone is not sufficient. To the
                extent that the holding in Josephs is inconsistent with our holding
                here, i.e., that possession alone, without more, is insufficient to
                support an inference of guilty knowledge, we overrule that part of
                the decision of the Court of Appeals.

Id. at 591-92, 659 S.E.2d at 310-11.

       In Young, the Supreme Court recited with care the findings of the trial court. The Court

enunciated:



       1
           Josephs v. Commonwealth, 10 Va. App. 87, 101, 390 S.E.2d 491, 498-99 (1990).

                                                -4-
                       The trial court found from the evidence that the defendant
               was in possession of the morphine at the time of her arrest. The
               court accepted Stephanie Woody’s testimony that the pills were
               hers and that she had valid prescriptions for them, but refused to
               accept her speculation as to how the pills came into the defendant’s
               possession. The court stated that the finding of guilt was based
               upon the defendant’s undisputed possession of the morphine,
               coupled with the facts that she had no prescription for it, that it
               belonged to someone else, and that it was contained in a bottle
               labeled with a different drug that was also a controlled substance.

Id. at 590, 659 S.E.2d at 309-10. The Young Court also noted “the contents of the pill bottle

gave no indication of their character.” Id. at 592, 659 S.E.2d at 311.

       The reversal in Young was predicated upon those factual findings by the trial court. The

Court held that under the facts, the record was “devoid of evidence of any acts, statements or

conduct tending to show guilty knowledge.” Id.

       The Young Court did note, however, that knowledge of the nature and character of a drug

“may be shown by evidence of the acts, statements or conduct of the accused.” Id. at 591, 659

S.E.2d at 310. The Court continued: “Other circumstantial evidence may also support a finding

of a defendant’s knowledge of the nature and character of the substance in his possession, such

as the drug’s distinctive odor or appearance, or statements or conduct of others in his presence

that would tend to identify it.” Id.

       Such circumstances include “the quantity of the drugs seized, the manner in which they

are packaged, and the presence of an unusual amount of cash.” McCain v. Commonwealth, 261

Va. 483, 493, 545 S.E.2d 541, 547 (2001). They also consist of the “acts, declarations or

conduct of the accused from which the inference may be fairly drawn that he knew of the

existence of narcotics,” Ritter v. Commonwealth, 210 Va. 732, 741, 173 S.E.2d 799, 806 (1970),

and the possession of multiple, or “disparate drugs,” Williams v. Commonwealth, 278 Va. 190,

194, 677 S.E.2d 280, 282 (2009). See also Hunley v. Commonwealth, 30 Va. App. 556, 562-63,




                                               -5-
518 S.E.2d 347, 350 (1999); Burke v. Commonwealth, 30 Va. App. 89, 93, 515 S.E.2d 777, 779

(1999); Hamilton v. Commonwealth, 16 Va. App. 751, 753-54, 433 S.E.2d 27, 28 (1993).

“When the drugs are found in the actual, physical possession of the accused, knowledge of where

they were and the defendant’s assertion of dominion are virtually incontrovertible; such

possession is also evidence that the accused knew what he possessed.” Ronald J. Bacigal,

Virginia Practice Series: Criminal Offenses & Defenses 166 (2007-08).

       Furthermore, the trier of fact may regard untruthful explanations regarding the possession

of the substance as evidence of the defendant’s guilt. Lane v. Commonwealth, 223 Va. 713, 716,

292 S.E.2d 358, 360 (1982). “A false or evasive account is a circumstance, similar to flight from

a crime scene, 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).

       Finally, drugs of significant value are unlikely to be randomly found. Powell v.

Commonwealth, 27 Va. App. 173, 178, 497 S.E.2d 899, 901 (1998).

       Here, the confluence of circumstances permitted the trial court to conclude Robinson

knew the nature and character of the ecstasy pills. Actual possession, as opposed to constructive

possession, is undisputed. The pills were individually packaged, of significant value, and, unlike

the facts in Young, were stamped with logos—a distinctive appearance—demonstrating they

were not produced by a pharmaceutical company, but by someone’s “home lab.” Testimony

indicated such markings are used in ecstasy distribution. Robinson possessed $372 in cash and a

disparate drug, marijuana. In addition, Robinson denied taking any prescription medication.

Finally, Robinson’s statement that he had found the pills on the side of the Mechanicsville




                                               -6-
Turnpike, as the trial court concluded, lacked credibility, and is further evidence he knew of their

nature and character.

       For the foregoing reasons, the judgment of the trial court is affirmed.

                                                                                          Affirmed.




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