Ervin v. Commonwealth

*499UPON A REHEARING EN BANC

Samuel A. Ervin (appellant) was convicted of possession of marijuana with intent to distribute, in violation of Code § 18.2-248.1.1 Appellant argues on appeal that the evidence at trial was insufficient to prove beyond a reasonable doubt 1) that he constructively possessed the marijuana with knowledge of its nature and character and 2) that he possessed it with the requisite intent to distribute. A divided panel of this Court held that the evidence was insufficient to prove that appellant had guilty knowledge of the marijuana.2 See Ervin v. Commonwealth, No. 0861-09-1, 2010 WL 2482314, 2010 Va.App. LEXIS 249 (Va. Ct.App. June 22, 2010). We granted the Commonwealth’s petition for rehearing en banc and stayed the mandate of the panel’s decision. On rehearing en banc, we now lift the stay and affirm appellant’s conviction for possession of marijuana with intent to distribute for the reasons stated below.

I. Background

“Applying familiar principles of appellate review, we will state the facts in the light most favorable to the Commonwealth, the prevailing party at trial.” Williams v. Commonwealth, 278 Va. 190, 191, 677 S.E.2d 280, 281 (2009).

On February 29, 2008, at 8:20 p.m., Portsmouth Officers O’Brien and Rad stopped a vehicle being driven by appellant after the officers observed a traffic violation.3 Appellant was *500the sole occupant of the vehicle. Neither officer observed him make any furtive movements during their observations of him. However, as the officers approached the vehicle, “a strong odor of marijuana” was discernible through the car’s open windows.

The officers asked appellant for his driver’s license and for the vehicle’s registration. Appellant gave the officers his driver’s license, which was suspended, but did not produce any registration. The record does not indicate that appellant ever attempted to look for the registration (or help the officers locate it), but instead he simply told the officers that the vehicle was not his.

After detecting the strong odor of marijuana coming from the vehicle and after determining that appellant’s driver’s license was suspended, the officers took appellant into custody and placed him in the police cruiser. The officers then searched the vehicle both for the source of the strong odor of marijuana and for the vehicle’s registration. Using the key that was in the vehicle’s ignition, Officer Rad unlocked the glove compartment. The officers immediately observed two Ziploc bags inside the glove compartment. One of the Ziploc bags held ten knotted plastic bag corners (“baggie corners”) containing marijuana, and the other Ziploc bag held thirteen baggie corners containing marijuana. No smoking devices or drug paraphernalia were found inside the vehicle or in appellant’s possession.

The vehicle belonged to Tiffany Killabrew, the mother of appellant’s daughter. It was Killabrew’s “secondary car,” which she loaned to various people, including appellant, her brother, and her sister. Killabrew testified that appellant borrowed the vehicle sometime between 6:00 and 7:00 p.m. on February 29, 2008.4

*501At trial, Officer Francisco Natal, an expert on the packaging and distribution of narcotics, testified that the marijuana found inside the glove compartment had a street value of over $200. Officer Natal explained that, in his expert opinion, the packaging of this quantity of marijuana was inconsistent with personal use. Furthermore, Officer Natal testified that he knew of no instance where someone possessed twenty-three individual baggie corners of marijuana for personal use.

Appellant testified in his own defense, denying ownership of the marijuana. When asked on cross-examination whether he was familiar with the smell of marijuana, appellant initially replied, “Maybe.” When asked to clarify his answer, appellant then testified, “No, not really. Usually you can smell like — no, not really. I’m not even going to claim that. Not really.”

The trial court denied appellant’s motions to strike and found appellant guilty of possession with intent to distribute, noting that “either [appellant] had been smoking [the marijuana] or he had recently just had somebody in the car who was smoking it, or at least that’s the conclusion that the Court can draw from this evidence.” The trial court continued:

Well, his girlfriend whose car it was, took the stand and didn’t claim any ownership of it. Her only testimony was he used the car regularly and other people did too, so we don’t know who those other people are, they’re not here, they haven’t offered any testimony that they used the car. The only testimony is Mr. Ervin used the car and he was in the car when there was marijuana being used, at least I think you can infer that from the evidence, and he had the key to where the marijuana was locked in the glove compartment.

*502The trial court also explained that the manner in which the marijuana was packaged proved that appellant possessed the marijuana with intent to distribute it.

II. Analysis

When the sufficiency of the evidence to support a conviction is challenged on appeal, “a reviewing court does not ‘ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.’ ” Crowder v. Commonwealth, 41 Va.App. 658, 663, 588 S.E.2d 384, 387 (2003) (quoting Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979)). “Viewing the evidence in the light most favorable to the Commonwealth, as we must since it was the prevailing party in the trial court,” Riner v. Commonwealth, 268 Va. 296, 330, 601 S.E.2d 555, 574 (2004) , “[w]e must instead ask whether ‘any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt,’ ” Crowder, 41 Va.App. at 663, 588 S.E.2d at 387 (quoting Kelly v. Commonwealth, 41 Va.App. 250, 257, 584 S.E.2d 444, 447 (2003) (en banc)). See also Maxwell v. Commonwealth, 275 Va. 437, 442, 657 S.E.2d 499, 502 (2008). “This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Jackson, 443 U.S. at 319, 99 S.Ct. at 2789.

Indeed, as we are an appellate court considering the sufficiency of the evidence on appeal, we must review the trial court’s factfinding “ ‘with the highest degree of appellate deference.’ ” Noakes v. Commonwealth, 54 Va.App. 577, 586, 681 S.E.2d 48, 52 (2009) (en banc) (quoting Thomas v. Commonwealth, 48 Va.App. 605, 608, 633 S.E.2d 229, 231 (2006)), aff'd, 280 Va. 338, 699 S.E.2d 284 (2010); see McMillan v. Commonwealth, 277 Va. 11, 18-19, 671 S.E.2d 396, 399 (2009) (“We have stated that ‘[o]n appeal, great deference is given to the factfinder who, having seen and heard the witnesses, assesses their credibility and weighs their testimony.’ ” (quoting Young v. Commonwealth, 275 Va. 587, 590-91, 659 S.E.2d *503308, 310 (2008))). We may not “ ‘substitute our judgment for that of the trier of fact,’” Wactor v. Commonwealth, 38 Va.App. 375, 380, 564 S.E.2d 160, 162 (2002) (quoting Commomvealth v. Presley, 256 Va. 465, 466, 507 S.E.2d 72, 72 (1998)), nor may we “reweigh the evidence,” Nusbaum v. Berlin, 273 Va. 385, 408, 641 S.E.2d 494, 507 (2007), because we have no authority “to preside de novo over a second trial,” Haskins v. Commonwealth, 44 Va.App. 1, 11, 602 S.E.2d 402, 407 (2004). We must defer, instead, to the factfinder’s responsibility “ ‘to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.’ ” Abdullah v. Commonwealth, 53 Va.App. 750, 755, 675 S.E.2d 215, 218 (2009) (quoting Jackson, 443 U.S. at 319, 99 S.Ct. at 2789). As the Supreme Court recently stated in Sullivan v. Commonwealth, 280 Va. 672, 701 S.E.2d 61 (2010), this deference to the factfinder’s determinations “applies not only to findings of fact, but also to any reasonable and justified inferences the fact-finder may have drawn from the facts proved.” Id. at 676, 701 S.E.2d at 63-64.

Therefore, under this highly deferential standard of review on appeal, “[t]he judgment of the trial court is presumed to be correct and will be reversed only upon a showing that it is ‘plainly wrong or without evidence to support it.’ ” Viney v. Commonwealth, 269 Va. 296, 299, 609 S.E.2d 26, 28 (2005) (quoting Code § 8.01-680); see also Burks v. United States, 437 U.S. 1, 17, 98 S.Ct. 2141, 2150, 57 L.Ed.2d 1 (1978) (stating that appellate reversal on grounds of insufficient evidence “will be confined to cases where the prosecution’s failure is clear”). “Practically speaking, this means [the trial court’s] decision cannot be disturbed on appeal unless no ‘rational trier of fact’ could have come to the conclusion it did.” Seaton v. Commonwealth, 42 Va.App. 739, 746, 595 S.E.2d 9, 12-13 (2004) (emphasis added) (citing Kelly, 41 Va.App. at 257, 584 S.E.2d at 447).

A. Possession of the Marijuana

Appellant argues that the evidence at trial failed to establish beyond a reasonable doubt that he knowingly possessed the *504marijuana in the vehicle’s glove compartment. When considering this issue, the parties agree that the principles of constructive possession are applicable here. Addressing these familiar principles, the Supreme Court of Virginia has held:

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.

Young, 275 Va. at 591, 659 S.E.2d at 310; see also Logan v. Commonwealth, 19 Va.App. 437, 444, 452 S.E.2d 364, 368-69 (1994) (en banc) (“Constructive possession may be established by ‘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 the character of the substance and that it was subject to his dominion and control.’ ” (quoting Powers v. Commonwealth, 227 Va. 474, 476, 316 S.E.2d 739, 740 (1984))).

Appellant does not appear to contest the trial court’s finding that the marijuana recovered from the glove compartment was subject to his dominion and control.5 However, he argues that the Commonwealth failed to prove beyond a reasonable doubt that he had the requisite guilty knowledge of this marijuana.

*505The trial court found that appellant’s possession of the marijuana was knowing and intentional, proving that he constructively possessed the marijuana. Young, 275 Va. at 591, 659 S.E.2d at 310. As an appellate court, “it is our duty to look to that evidence which tends to support the verdict” when the sufficiency of the evidence is challenged on appeal. Snyder v. Commonwealth, 202 Va. 1009, 1016, 121 S.E.2d 452, 457 (1961). Therefore, we look to the circumstantial evidence supporting the trial court’s verdict. See Haskins, 44 Va.App. at 6, 602 S.E.2d at 404 (“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.’ ” (quoting Etherton v. Doe, 268 Va. 209, 212-13, 597 S.E.2d 87, 89 (2004))). “While no single piece of [circumstantial] evidence may be sufficient, the ‘combined force of many concurrent and related circumstances, each insufficient in itself, may lead a reasonable mind irresistibly to a conclusion.’ ” Stamper v. Commonwealth, 220 Va. 260, 273, 257 S.E.2d 808, 818 (1979) (quoting Karnes v. Commonwealth, 125 Va. 758, 764, 99 S.E. 562, 564 (1919)). In other words, in a circumstantial evidence case, such as the case currently before us, the accumulation of various facts and inferences, each mounting upon the others, may indeed provide sufficient evidence beyond a reasonable doubt of a defendant’s guilty knowledge of contraband.

1. Factors Indicative of Guilty Knowledge

This Court’s holding in Coward v. Commonwealth, 48 Va.App. 653, 633 S.E.2d 752 (2006), although not controlling given the very different facts in this case, is a useful guide for determining whether circumstantial evidence is sufficient as a matter of law to prove that a vehicle occupant knowingly and intentionally possessed drugs found in the car. In Coward, the police stopped a Toyota, in which Coward was the passenger, in the middle of the night for an equipment violation. Id. at 656, 633 S.E.2d at 753. As the officer approached the Toyota, he directed the lights on his police car toward the Toyota, and he also used his flashlight to further illuminate the interior of the car. Id. The officer was able to observe a *506clear plastic bag containing crack cocaine, sitting on the console between the driver’s and passenger’s seats. Id. The driver told the officer that the Toyota belonged to his mother and that he had been driving it all evening. Id. Coward made no statements to the officer. Id. At Coward’s trial, the trial court convicted Coward of possession of cocaine, basing its finding that Coward had guilty knowledge of the cocaine solely on his occupancy of the vehicle and his proximity to the cocaine. Id. at 658, 633 S.E.2d at 754.

On appeal, this Court reversed Coward’s conviction, reiterating the familiar principle that mere occupancy and proximity, although factors to be considered among the totality of the circumstances, are insufficient standing alone to prove a defendant’s guilty knowledge of illegal drugs. Id. Therefore, although mindful of the deferential appellate standard of review in a sufficiency of the evidence case, id. at 657, 633 S.E.2d at 753, this Court held that the evidence at Coward’s trial was insufficient as a matter of law because it “did not establish any other facts or circumstances necessary to draw the legal conclusion that Coward was aware of the presence and character of the cocaine.” Id. at 659, 633 S.E.2d at 754 (emphasis added).

Here, unlike in Coward, the evidence at trial did present other facts and circumstances permitting the trial court to draw the conclusion that appellant was aware of the presence and character of the marijuana in the glove compartment— and these facts and circumstances may be considered in addition to appellant’s occupancy of the vehicle and proximity to the marijuana. Based on the combined force of these concurrent and related circumstances, the trial court’s finding that appellant had guilty knowledge of the marijuana in the glove compartment was not plainly wrong or unsupported by the evidence.

a. The Strong Odor of Marijuana

A defendant’s knowledge of the presence and character of a drug may be shown by evidence of the acts, statements, or conduct of the accused, Garland v. Commonwealth, 225 Va. *507182, 184, 300 S.E.2d 783, 784 (1983), as well as by “other facts or circumstances” tending to demonstrate the accused’s guilty knowledge of the drug, Williams v. Commonwealth, 42 Va.App. 723, 735, 594 S.E.2d 305, 311 (2004). As the Supreme Court of Virginia recently explained in Young, a “drug’s distinctive odor” can be circumstantial evidence to support a finding that a defendant knew of the nature and character of the substance in his possession. Young, 275 Va. at 591, 659 S.E.2d at 310.

Here, appellant was driving a vehicle that smelled strongly of marijuana — the very same illegal drug discovered in the vehicle’s glove compartment. This odor, which was readily discernible to both officers as marijuana when they approached appellant’s vehicle, would certainly have been apparent to appellant as he sat in the vehicle. The strong and distinctive odor of the drug provided a significant indication to anyone inside (or even near) the vehicle that marijuana was located within the vehicle. See id. at 592, 659 S.E.2d at 311 (distinguishing the facts in Young’s case, where the contents of a pill bottle “gave no indication of their character,” from the facts in Josephs v. Commonwealth, 10 Va.App. 87, 390 S.E.2d 491 (1990), which involved “the odoriferous contents” of a trunk containing marijuana).6

*508Based on the officers’ testimony, the trial court found that the strong marijuana odor emanating from the vehicle was from marijuana that had been smoked. Making a distinction between the smell of burnt marijuana and “fresh” (i.e., not burnt) marijuana, appellant contends that the trial court erroneously inferred that he was aware of the marijuana in the glove compartment, which was fresh, based on the readily discernible smell of burnt marijuana.7 However, viewing all the evidence in the light most favorable to the Commonwealth, “as we must since it was the prevailing party in the trial court,” Riner, 268 Va. at 330, 601 S.E.2d at 574, the trial court’s finding that appellant had guilty knowledge of the marijuana in the glove compartment is strengthened by the trial court’s finding concerning the marijuana odor.

The trial court not only found that the officers smelled already smoked marijuana, it also found that the marijuana had been recently smoked by appellant or someone in the car with him. The trial court’s finding, which was certainly not unreasonable given the officers’ testimony concerning the strength and obviousness of the marijuana odor as they approached the vehicle, is entitled to deference during appellate review for sufficiency of the evidence. Hancock v. Commonwealth, 12 Va.App. 774, 782, 407 S.E.2d 301, 306 (1991).

*509Furthermore, Killabrew’s testimony established that appellant took possession of the vehicle between 6:00 and 7:00 p.m., approximately two hours before the traffic stop. Thus, the trial court’s inference that the marijuana detected by the officers must have been smoked — either by appellant or by someone else in appellant’s presence — while appellant was in possession of the vehicle was “reasonable and justified” based on the strength of the odor. Sullivan, 280 Va. at 676, 701 S.E.2d at 63-64. Therefore, the officers’ detection of the strong odor of recently burnt marijuana certainly does not undermine the trial court’s conclusion that appellant was aware of the “fresh” marijuana in the glove compartment.8 See Jackson, 443 U.S. at 319, 99 S.Ct. at 2789 (stating that it is the province of the factfinder to draw reasonable inferences from basic facts to ultimate facts). Nothing in this record suggests any other means, in the approximately two hours that appellant had possessed the car, of creating such a strong odor of marijuana that people could readily identify the odor before actually reaching the vehicle.

Therefore, the presence of the strong odor of marijuana from within the vehicle is one factor9 to consider in this case because it tends “to show or allow [] the trial court to reasonably infer” that appellant was aware of the marijuana in the glove compartment. Coward, 48 Va.App. at 659, 633 S.E.2d at 754. However, the strong odor of marijuana emanating from the vehicle, readily discernible by each of the *510officers, is not viewed in isolation of the other facts presented by this record on appeal. Commonwealth v. Hudson, 265 Va. 505, 514, 578 S.E.2d 781, 786 (2003). Instead, this factor must be viewed among the totality of the circumstances presented to the trial court. Several additional facts and circumstances in the record here further support the trial court’s finding that appellant was aware of the presence and character of the marijuana discovered in the glove compartment.

b. Appellant’s Sole Possession of the Vehicle and His Possession of the Key to the Glove Compartment

Appellant was in sole possession of the vehicle at the time the marijuana was found. Contra Coward, 48 Va.App. at 656, 633 S.E.2d at 753 (reversing a cocaine possession conviction where Coward was a passenger in a vehicle containing cocaine and where the driver acknowledged that his mother owned the vehicle and that he drove that car all evening). Appellant also possessed the key to the vehicle and its glove compartment and, therefore, was the sole person at that time with means to access the glove compartment containing the marijuana. The trial court, acting as factfinder in this case, was permitted to consider these facts as circumstances further indicating appellant’s guilty knowledge of the marijuana found in the glove compartment.

The Supreme Court’s recent holding in Cordon v. Commonwealth, 280 Va. 691, 701 S.E.2d 803 (2010), is not controlling on the very different facts in this case. In Cordon, a police detective interviewed Cordon while investigating a burglary that occurred at a house on Finley Square in the City of Hampton. Id. at 693, 701 S.E.2d at 804. Cordon told the detective that his uncle, who was not present at that time, owned the house. Id. at 693, 701 S.E.2d at 805. Cordon said that he had been living in the Finley Square house while his uncle had been away and that one of its bedrooms was his, but Cordon also indicated in a handwritten statement regarding the burglary that an address in the City of Newport News was his residence. Id. at 693, 696, 701 S.E.2d at 805, 806. Two days later, the police executed a search warrant at the Finley *511Square house. Cordon’s uncle was present, but Cordon was not. Id. at 693, 701 S.E.2d at 804. The police found a cooler containing cocaine in the bedroom that Cordon had identified as his own two days before during his interview with the detective.10 Id.

Reversing Cordon’s conviction for possession of the cocaine found in the cooler, the Supreme Court noted:

Cordon was not in the house or the bedroom when the cooler containing the cocaine was discovered. There was no other physical evidence linking Cordon to the cooler or the contraband. The record showed that two days had passed between the time Cordon was known to be at the Finley Square house and the seizure of the cooler containing cocaine. While he referred to the bedroom as “his” and stated that he was staying there while his uncle was away at the time of the September burglary, Cordon listed his address as a location in Newport News. There was no evidence of ownership of the cooler, a very portable item, and no evidence placed Cordon at the house at any time between the day he received Baer’s business card and the day the search warrant was executed.

Id. at 696, 701 S.E.2d at 806 (emphasis added).

Thus, as the Supreme Court emphasized, two days passed between when Cordon was known to occupy this bedroom of his uncle’s house and when the cocaine actually was discovered in the cooler in the bedroom. Id. This gap in the evidence against Cordon was consistent with his hypothesis of innocence that someone other than he had placed the cooler of cocaine in the bedroom of his uncle’s house without Cordon’s knowledge. The evidence here contrasts sharply with the evidence in Cordon. Appellant was present in the vehicle *512while the vehicle strongly smelled of marijuana and while its glove compartment held marijuana; appellant was the sole occupant of the vehicle at that time; and appellant had exclusive possession of the key that was capable of opening the glove compartment containing the baggies of cocaine— which were immediately observable upon opening the glove compartment. All of these circumstances, which simply did not exist in Cordon, render the Supreme Court’s holding in Cordon inapplicable to the facts of this case.

Similarly, the facts in Burchette v. Commonwealth, 15 Va. App. 432, 438, 425 S.E.2d 81, 86 (1992), upon which appellant relies, are distinguishable from the facts presented here. In Burchette, marijuana was found in one of two vehicles owned by Burchette. Burchette had personal items in this vehicle and had been observed near the vehicle, although not inside it, shortly before the marijuana was discovered. Id. at 435, 425 S.E.2d at 83-84. After reviewing this evidence, this Court reversed Burchette’s conviction for possession of marijuana with intent to distribute, holding in pertinent part:

The Commonwealth presented no evidence from which one reasonably could infer that Burchette occupied the vehicle or had exercised dominion over it while the marijuana was present in it. The evidence failed to show either when Burchette may have used or occupied the vehicle or when or for how long the drugs or paraphernalia had been in it. The evidence failed to show that Burchette was the exclusive or primary operator of the vehicle, or that he possessed a set of keys to the vehicle, or when or by whom the vehicle had been most recently operated or occupied. The circumstances were not such that one reasonably could infer, to the exclusion of other reasonable hypotheses, that Burchette, as the owner of the vehicle, knew of the presence, nature and character of the contraband that was found in it.

Id. at 435-36, 425 S.E.2d at 84 (emphasis added).

Unlike in Burchette, the Commonwealth here presented evidence establishing that appellant was in sole possession of the vehicle and was in possession of the key to the vehicle.

*513The evidence also proved that appellant possessed the key to the glove compartment11 while the marijuana was in that glove compartment and while the vehicle smelled strongly of marijuana. The speculation required in Burchette was not required here, as these circumstances considered missing in Burchette are found here. Collectively, these circumstances support the factfinder’s conclusion that appellant knew the nature and character of the leafy substance found in the glove compartment. However, additional circumstances in this record provide still further support for the court’s finding of guilt.

c. Appellant’s Apparent Reluctance to Access the Glove Compartment

The officers’ testimony reflects that appellant did not attempt to retrieve the vehicle’s registration from the glove compartment — where, of course, the officers eventually found the marijuana — despite the glove compartment’s obvious utility as “a customary place” to find a vehicle’s registration. South Dakota v. Opperman, 428 U.S. 864, 372, 96 S.Ct. 3092, 3098, 49 L.Ed.2d 1000 (1976) (noting that the glove compartment is “a customary place for documents of ownership and registration, as well as a place for the temporary storage of valuables” (citation omitted)). Indeed, when asked to produce *514a vehicle’s registration, suspects routinely access a vehicle’s glove compartment, see, e.g. Hill v. Commonwealth, 52 Va.App. 313, 317, 663 S.E.2d 133, 135 (2008); Commonwealth v. Thomas, <