William v. Loudermilk, etc. v. Commonwealth ( 1997 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bray and Fitzpatrick
Argued at Salem, Virginia
WILLIAM V. LOUDERMILK,
S/K/A WILLIAM VINCENT LOUDERMILK
MEMORANDUM OPINION * BY
v. Record No. 1172-96-3 JUDGE LARRY G. ELDER
APRIL 22, 1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ROCKBRIDGE COUNTY
George E. Honts, III, Judge
W. T. Robey, III, for appellant.
Kimberley A. Whittle, Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.
William Vincent Loudermilk (appellant) appeals his
conviction of possession of marijuana in violation of Code
§ 18.2-250.1. He contends that the evidence was insufficient to
prove that he possessed the marijuana found in his rental car.
For the reasons that follow, we affirm.
Code § 18.2-250.1 states that "[i]t is unlawful for any
person knowingly or intentionally to possess marijuana . . . ."
In order to convict a defendant of illegal possession of
marijuana, "the Commonwealth must prove that the defendant was
aware of the presence and character of the drugs and that he
intentionally and consciously possessed them." Josephs v.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
Commonwealth, 10 Va. App. 87, 99, 390 S.E.2d 491, 497 (1990).
"It is not necessary to show actual possession of the
[marijuana]. Constructive possession of [marijuana] may be shown
by establishing that it was subject to his dominion or control."
Id. at 99, 390 S.E.2d at 497-98. However, owning or occupying a
vehicle in which marijuana is found does not create a presumption
that the owner or occupant knowingly or intentionally possessed
the drug, see Code § 18.2-250.1(A), and mere "suspicious
circumstances, including proximity to a controlled drug, are
insufficient to support a conviction for possession of a
controlled substance." Behrens v. Commonwealth, 3 Va. App. 131,
135, 348 S.E.2d 430, 432 (1986).
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."
Drew v. Commonwealth, 230 Va. 471, 473, 338 S.E.2d 844, 845
(1986) (quoting Powers v. Commonwealth, 227 Va. 474, 476, 316
S.E.2d 739, 740 (1984)).
When considering the sufficiency of evidence on appeal in a
criminal case, this Court views the evidence in a light most
favorable to the Commonwealth, granting to it all reasonable
inferences fairly deducible therefrom. See Higginbotham v.
Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975). The
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trial court's judgment will not be set aside unless it appears
that the judgment is plainly wrong or without supporting
evidence. See Martin v. Commonwealth, 4 Va. App. 438, 443, 358
S.E.2d 415, 418 (1987). When the Commonwealth relies upon
circumstantial evidence to prove the essential elements of a
criminal charge, the circumstantial evidence must exclude every
reasonable hypothesis of innocence that flows from the evidence.
See Cantrell v. Commonwealth, 7 Va. App. 269, 289-90, 373 S.E.2d
328, 338-39 (1988), cert. denied, 496 U.S. 911, 110 S. Ct. 2600,
110 L. Ed. 2d 280 (1990) (citations omitted).
We hold that the evidence was sufficient to prove that
appellant had constructive possession of the marijuana found in
the rental car. The circumstantial evidence supports the trial
court's conclusion that appellant was aware of the presence of
marijuana in his car and that it was subject to his dominion and
control.
First, the evidence supports the trial court's inference
that appellant was aware of the marijuana in the car. Trooper
Miller testified that when he stopped appellant for speeding, he
observed that appellant was the driver and sole occupant of a
rental car that he had leased a "few days" earlier. When the
trooper approached the open driver's side window, he detected the
odor of "green" marijuana from within appellant's car. After
Trooper Miller discovered the marijuana in the center console,
appellant admitted that he was a "regular user" of marijuana but
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stated that he "didn't know anything" about the marijuana in the
console and that it did not belong to him. This evidence
supports the reasonable inference that appellant, through his
prior use of marijuana, was familiar with the odor of marijuana.
In addition, considering Trooper Miller's testimony regarding
the existence of a marijuana odor emanating from appellant's car,
it is reasonable to infer that appellant was also aware of this
smell.
Appellant argues that these circumstances fail to exclude
the possibility that he was unaware of the marijuana's actual
presence in the rental car. He argues that the evidence supports
the hypothesis that a previous lessee of the rental car had left
the marijuana in the console and that appellant believed that he
smelled only the remnants of the drug from its prior presence in
the car. We disagree that this hypothesis flows from the
evidence. The record established that appellant had possessed
the rental car for a "few days." Considering appellant's
familiarity with marijuana, it does not reasonably follow that he
would believe that marijuana was not in the car after its odor
persisted for more than a day or two.
Finally, the evidence supports the trial court's conclusion
that the marijuana was subject to appellant's dominion and
control. Trooper Miller's unrebutted testimony was that he found
the marijuana located in the console next to appellant's seat,
which was within appellant's easy reach.
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For the foregoing reasons, we affirm the conviction of
possession of marijuana in violation of Code § 18.2-250.1.
Affirmed.
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