                               COURT OF APPEALS OF VIRGINIA


Present: Judges Humphreys, Felton and Kelsey
Argued at Richmond, Virginia


JEFFREY EDWARD PORTER
                                                              MEMORANDUM OPINION* BY
v.     Record No. 0419-04-2                                    JUDGE D. ARTHUR KELSEY
                                                                  FEBRUARY 15, 2005
COMMONWEALTH OF VIRGINIA


                  FROM THE CIRCUIT COURT OF KING GEORGE COUNTY
                             Horace A. Revercomb, III, Judge

                 Elizabeth A. Trible, Assistant Public Defender, for appellant.

                 Alice T. Armstrong, Assistant Attorney General (Jerry W. Kilgore,
                 Attorney General, on brief), for appellee.


       Jeffrey Edward Porter challenges on appeal his convictions for possession of cocaine and

possession of heroin in violation of Code § 18.2-250, claiming the evidence was insufficient to

prove his guilt on either charge. We disagree and affirm.

                                                  I.

       On appeal, we review the evidence in the “light most favorable” to the Commonwealth.

Commonwealth v. Hudson, 265 Va. 505, 514, 578 S.E.2d 781, 786 (2003). That principle

requires us to “‘discard the evidence of the accused in conflict with that of the Commonwealth,

and regard as true all the credible evidence favorable to the Commonwealth and all fair

inferences that may be drawn therefrom.’” Parks v. Commonwealth, 221 Va. 492, 498, 270

S.E.2d 755, 759 (1980) (emphasis in original and citation omitted).




       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
          In January 2003, Laura Painter advertised that she was renting out a room in her house

where she and her four-year-old son lived. Porter responded to the ad and soon moved in with

his girlfriend, Katherine Reilly. On two separate occasions, Painter found “dealer bags” in her

house and developed “suspicions that [Porter] was using drugs.”

          When Porter was arrested on an unrelated matter in late March 2003, Painter told Porter

and Reilly they would have to move out of her house. The couple complied but left “furniture,

clothes, CDs, and almost everything they had” at Painter’s house. Over the next two weeks,

Painter called several times to ask that Porter and Reilly remove their property from her house.

About a week later, Reilly returned to the house and moved most of the items into Painter’s

garage.

          After another week passed, Painter left another message warning that if they did not

retrieve their belongings by the following Monday, she “was going to start going through it and

throwing it away.” Painter returned from work Monday evening to find the garage still full of

Porter’s and Reilly’s belongings.

          As she was going through the items, Painter opened a duffle bag containing a small, tin

box. Painter had earlier seen that same tin box in Porter’s bedroom. Painter opened the box and

found drug paraphernalia (two metal spoons and a glass tube) containing what was later

determined to be heroin and cocaine residue. Painter immediately called the Sheriff’s

Department and gave the items to Deputy Joe Patterson.

          In Porter’s duffle bag, Deputy Patterson also found photographs of Porter and his

girlfriend and two W-2 forms bearing Porter’s name. Porter was arrested later that evening. He

admitted to the police that the duffle bag belonged to him, as well as the tin box and everything

else in the bag. Porter also said he, not Reilly, packed the bag. He denied, however, any

knowledge of the drug paraphernalia.

                                                 -2-
       At trial, Porter argued that someone else could have planted the drug paraphernalia in his

tin box. As potential suspects, he identified his girlfriend, Painter’s boyfriend, and the father of

Painter’s son. The trial court heard evidence on each of these possibilities. Porter’s girlfriend

testified that she knew nothing about the drug paraphernalia in her boyfriend’s tin box. Painter

testified that neither her boyfriend nor her son’s father had keys to her home. Nor did they have

access to Porter’s belongings. After Porter packed his duffle bag and Reilly moved it to the

garage, Painter testified, no one else entered the garage. Painter’s boyfriend may have visited the

home during this period, but never went into the garage. And her son’s father had not been to

the home during this time frame.

       Having heard this evidence, the trial court found Porter guilty of possession of the

cocaine and heroin found in Porter’s tin box. “I am satisfied beyond a reasonable doubt that the

Commonwealth has met its burden of proof,” the court ruled. The court noted Porter’s

“possession and control of the containers” and his admission that he owned and packed the

duffle bag.

                                                  II.

       When addressing a challenge to 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. Seaton v. Commonwealth, 42 Va. App. 739, 746, 595

S.E.2d 9, 12 (2004) (citation omitted). Under this standard, we ask whether “any rational trier of

fact could have found the essential elements of the crime beyond a reasonable doubt.” Kelly v.

Commonwealth, 41 Va. App. 250, 257, 584 S.E.2d 444, 447 (2003) (en banc) (quoting Jackson

v. Virginia, 443 U.S. 307, 319 (1979)) (emphasis in original); see also Seaton, 42 Va. App. at

747-48, 595 S.E.2d at 13; Crowder v. Commonwealth, 41 Va. App. 658, 663, 588 S.E.2d 384,

387 (2003).

                                                 -3-
       Constructive possession of the drugs can be shown by “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

brackets and citation 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)).

       The evidence in this case supports the rationality of the trial court’s findings. Porter

admitted that he packed his tin box and placed it in his duffle bag, facts corroborated by the

presence of his personal belongings inside the bag. It was entirely rational for the factfinder to

conclude, beyond a reasonable doubt, that the drug paraphernalia found in Porter’s tin box

likewise belonged to Porter. Porter’s only hypothesis of innocence ⎯ that someone planted the

incriminating evidence in the tin box after he packed it in his duffle bag ⎯ falls far short of an

explanation that any reasonable factfinder would necessarily have to accept.1 See Kelly, 41

Va. App. at 260-61, 584 S.E.2d at 449 (recognizing that prosecution need not eliminate the mere

“possibility that someone else may have planted, discarded, abandoned or placed” the drug




       1
         On appeal, Porter contends that a “review of the totality of the circumstances does not
exclude every reasonable hypothesis except that of guilt” because a “rational trier of fact could
have found that someone else placed drugs within the Accused’s bag.” Appellant’s Brief at 13-
14 (emphasis added). By framing the point this way, Porter inverts the question presented. The
issue on appeal is whether a rational factfinder could have rejected the defendant’s exculpatory
hypothesis. See Haskins, 44 Va. App. at 9, 602 S.E.2d at 406 (holding that whether a hypothesis
of innocence is reasonable is itself a question of fact, subject to deferential appellate review).
                                                 -4-
evidence (quoting Brown v. Commonwealth, 15 Va. App. 1, 10, 421 S.E.2d 877, 883 (1992) (en

banc))).2

                                              III.

       Because sufficient evidence supports Porter’s convictions for possession of cocaine and

possession of heroin, we affirm both convictions.



                                                                                      Affirmed.




       2
          Nor can Porter rely on his own denial as a basis for exoneration. See generally
Commonwealth v. Duncan, 267 Va. 377, 385, 593 S.E.2d 210, 215 (2004) (noting that the
factfinder may discount an accused’s self-serving explanation as a mere effort at “lying to
conceal his guilt”); Dugger v. Commonwealth, 40 Va. App. 586, 594 n.2, 580 S.E.2d 477, 481
n.2 (2003).
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