COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judges Benton, Elder, 

 Annunziata, Bumgardner, Frank, Humphreys, Clements, 

 Felton and Kelsey 

Argued at Richmond, Virginia 

DEMETRIUS KELLY 

 OPINION BY 

v. Record No. 3100-01-1 JUDGE ROBERT J. HUMPHREYS 

 AUGUST 5, 2003 

COMMONWEALTH OF VIRGINIA 

UPON A REHEARING EN BANC 

FROM THE CIRCUIT COURT OF ACCOMACK COUNTY 

Glen A. Tyler, Judge 

 William L. Taliaferro, Jr. (Swartz, 

Rabinowitz, Taliaferro, Lewis, Swartz & 

Goodove, on brief), for appellant. 

 John H. McLees, Senior Assistant Attorney 

General (Jerry W. Kilgore, Attorney General, 

on brief), for appellee. 

This matter comes before the Court on a rehearing en banc

from an unpublished panel decision rendered January 21, 2003. See

Kelly v. Commonwealth, 03 Vap UNP 3100011 (2003). In that 

decision, a divided panel of this Court affirmed Kelly's 

conviction for possession of marijuana with intent to distribute 

(in violation of Code § 18.2-248.1), but reversed his conviction 

for importing narcotics into Virginia with intent to distribute 

(in violation of Code § 18.2-248.01), finding the evidence 

insufficient, as a matter of law, to support that conviction. By 

order dated February 21, 2003, we granted the Commonwealth's 
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petition for a rehearing en banc, stayed the mandate of that 

decision, and reinstated the appeal. Upon rehearing en banc, we 

affirm the judgment of the trial court as to both convictions. 

 I. Background 

 When the sufficiency of the evidence is challenged on 

appeal, we review the evidence "in the light most favorable to 

the Commonwealth, granting to it all reasonable inferences 

fairly deducible therefrom." Bright v. Commonwealth, 4 Va. App. 

248, 250, 356 S.E.2d 443, 444 (1987). "'In so doing, we must 

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.'" Watkins v. Commonwealth, 26 Va. App. 335, 

348, 494 S.E.2d 859, 866 (1998) (quoting Cirios v. Commonwealth, 

7 Va. App. 292, 295, 373 S.E.2d 164, 165 (1988)). 

 So viewed, the evidence proved that on March 14, 2000, 

State Trooper William Talbert stopped the car Kelly was driving 

for having unapproved tinting on its windows. Kelly was driving 

southbound on Route 13 in Accomack County. Talbert approached 

the driver's side of the car and asked Kelly for his 

identification. The officer testified Kelly appeared nervous 

and that his hands shook. Talbert detected the odors of both 

burnt and "green" marijuana. 

 Kelly's license bore a Norfolk address. Talbert asked 

Kelly "where are you coming from?" Kelly twice told the officer 
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that he and his passenger, Joey Knight, had been in Maryland. 

Kelly stated he was not sure where in Maryland he had been, and 

told Trooper Talbert that he would have to ask Knight about 

that. 

 Because he had smelled "burnt marijuana in the car and 

green marijuana," Talbert told Kelly he was going to "search him 

and his car and also [Knight] . . . ." Talbert then searched 

Kelly's car. 

In the front [Talbert] could kind of smell 

burnt and greenish marijuana a little bit 

and then [Talbert] observed what [he] 

believed to be marijuana flakes and buds in 

the front seat – left front seat right 

quarter and between the front left and right 

bucket seats around the console carpet area 

seeds and buds of marijuana in the carpeting 

and [he] looked underneath and [he] could 

smell kind of a greenish tinge of marijuana 

heavier like underneath on the floor board 

like under the seats and so forth. 

[Talbert] went to the back seat and 

pulled . . . down the rear seat compartment. 

Not all the way back in the cargo area. 

[Talbert] pushed the button down and pulled 

the rear seat forward. The back of it 

folded down and there was a black duffel bag 

behind the back seat in the cargo area of 

the vehicle. 

* * * * * * * 

[Talbert] unzipped it and [he] saw several 

looked [sic] like up to six cellophane 

wrapped [sic] heavily wrapped – you couldn't 

tell what was in it – packages of what 

[Talbert] assumed to be drugs . . . . 
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At that point, Talbert told Kelly he was under arrest for 

"trafficking cocaine." Kelly looked "extremely surprised" and 

stated, "Cocaine?" 

Talbert transported the two men to the police station. As he 

placed the duffel bag on a table and began to take out the heavily 

wrapped bags, Kelly exclaimed, "Man, that ain't my weed." Talbert 

testified he did not know the contents of the bag until he cut 

through the cellophane, that Kelly was not in a position where he 

could observe the contents of the bag, and had not been told the 

bag contained marijuana. 

 The officers later determined the bag contained twenty 

pounds and five ounces of marijuana. Talbert testified that 

amount of marijuana was inconsistent with personal use. 

 Kelly testified on his own behalf. He stated that he had 

met "up" with Knight that morning to go to Maryland to "see two 

strippers [Knight] had met the previous week." He claimed that 

when he arrived at Knight's home that morning, Knight asked if 

he could use Kelly's car to go to the store. Kelly stated that 

he agreed, and waited at Knight's home until he returned, about 

fifteen to twenty minutes later. 

 Kelly testified that the two men left for Maryland at about 

11:30 a.m. Kelly claimed that on their way there, they had 

veered off of Route 13 to make a stop at a "Stuckey's" 

restaurant to get "[s]oda, chips and . . . a lottery ticket." 

When they left Stuckey's and returned to Route 13, Kelly made a 
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wrong turn, causing the car to travel toward Norfolk and away 

from Maryland. Kelly stated that it was at that time that he 

was stopped by Trooper Talbert. 

 Kelly agreed that Trooper Talbert asked him "where [he] was 

coming from," but then quickly changed his mind and testified 

that Trooper Talbert asked him "where he was going to." Kelly 

claimed that he told Trooper Talbert he was going to Maryland. 

He further claimed that he had never been to Maryland, and 

denied having any knowledge that the black bag was in his car, 

or that marijuana was in his car. He testified that when he was 

at the police station and stated "that ain't my weed," the 

contents of the bag were laid out on the table, "in plain view." 

 The trial court ruled as follows: 

In this case the facts are in some respects 

in dispute. The court finds that [Kelly] 

was on U.S. Route 13; that he stopped at 

Stuckey's roadside commercial establishment; 

that he then proceeded south on U.S. Route 

13 towards Norfolk away from Maryland when 

the trooper stopped him proceeding in that 

direction. He did not tell the trooper that 

he was headed in the wrong direction. There 

is no evidence that emanates from that 

particular time to indicate that he was 

going in a wrong direction. He told the 

trooper on two separate occasions that he 

was coming from Maryland. There is no 

evidence to indicate at all that he was 

doing otherwise. There is no evidence to 

indicate that he had stopped anywhere other 

than in Accomack County after coming to 

Maryland. The evidence is clear that 

[Kelly] was coming from Maryland. 
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The court further found that the evidence clearly established 

"[Kelly] did know what was in those packages and he said that 

weed is not mine." Therefore, the trial court found Kelly 

"guilty as charged on both counts." 

 II. Analysis 

On appeal, Kelly contends the trial court erred in finding 

the evidence sufficient, as a matter of law, to prove that he 

transported the drugs into the Commonwealth and/or to prove that 

he possessed the drugs. We disagree. 

When considering on appeal the sufficiency of the evidence 

presented below, 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." Davis v. 

Commonwealth, 39 Va. App. 96, 99, 570 S.E.2d 875, 876-77 (2002); 

see also McGee v. Commonwealth, 25 Va. App. 193, 197-98, 487 

S.E.2d 259, 261 (1997) (en banc). Thus, we do 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). "Instead, the 

relevant question is whether, after viewing the evidence in the 

light most favorable to the prosecution, 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). 

"This familiar standard gives full play to the responsibility of 

the trier of fact fairly to resolve conflicts in the testimony, to 
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weigh the evidence, and to draw reasonable inferences from basic 

facts to ultimate facts." Id.

As Kelly accurately points out, in circumstantial evidence 

cases, the reasonable doubt standard requires proof "sufficiently 

convincing to exclude every reasonable hypothesis except that of 

guilt." Coleman v. Commonwealth, 226 Va. 31, 53, 307 S.E.2d 864, 

876 (1983). However, "[t]here is no distinction in the law 

between the weight or value to be given to either direct or 

circumstantial evidence. The finder of fact is entitled to 

consider all of the evidence, without distinction, in reaching its 

determination." Commonwealth v. Hudson, 265 Va. 505, 512-13, 578 

S.E.2d 781, 785 (2003). Moreover, this principle, "does not add 

to the burden of proof placed upon the Commonwealth in a criminal 

case. The statement that circumstantial evidence must exclude 

every reasonable theory of innocence is simply another way of 

stating that the Commonwealth has the burden of proof beyond a 

reasonable doubt." Id. at 513, 578 S.E.2d at 785 (citation 

omitted). 

In regard to Kelly's first contention, Code § 18.2-248.01 

provides, in pertinent part, that "it is unlawful for any person 

to transport into the Commonwealth by any means with intent to 

sell or distribute . . . five or more pounds of marijuana." "[A] 

violation of Code § 18.2-248.01 occurs at the moment a person 

transporting illegal substances penetrates the borders of the 
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Commonwealth." Seke v. Commonwealth, 24 Va. App. 318, 325, 482 

S.E.2d 88, 91 (1997). 

It is undisputed that Kelly was transporting illegal drugs in 

his car when he was stopped by Trooper Talbert. It is further 

undisputed that, at the time he was stopped by Trooper Talbert, 

Kelly was traveling southbound on Route 13 in Virginia, away from 

Maryland and toward Norfolk. Moreover, viewed in the light most 

favorable to the Commonwealth, the evidence presented below 

demonstrated that the odor of both burnt and green marijuana 

emanated from the car and that, upon questioning by Trooper 

Talbert, Kelly twice informed Trooper Talbert that he and Knight 

had just come from "somewhere in Maryland." 

Thus, contrary to Kelly's contention on appeal, the 

Commonwealth clearly presented evidence, although entirely 

circumstantial, "relating to the entry of the marijuana into 

Virginia and [Kelly's] role in that entry." We find that this 

evidence reasonably supported the trial court's determination that 

when he was stopped by Trooper Talbert, Kelly had just transported 

the drugs from the State of Maryland, into the Commonwealth of 

Virginia. Indeed, the appellate courts of this Commonwealth have 

long recognized that circumstantial evidence is not to be viewed 

in isolation. See Hudson, 265 Va. at 514, 578 S.E.2d at 786; see

also Pease v. Commonwealth, 39 Va. App. 342, 360, 573 S.E.2d 272, 

280 (2002) (citing Derr v. Commonwealth, 242 Va. 413, 425, 410 

S.E.2d 662, 669 (1991); Stamper v. Commonwealth, 220 Va. 260, 273, 
- 9 - 

257 S.E.2d 808, 818 (1979); Karnes v. Commonwealth, 125 Va. 758, 

764, 99 S.E. 562, 564 (1919)). "'While no single piece of 

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."'" Id. (quoting 

Derr, 242 Va. at 425, 410 S.E.2d at 669). On this basis, and 

viewing the evidence in the light most favorable to the 

Commonwealth, we find no error in the trial court's determination 

that the Commonwealth's evidence proved the essential elements of 

the crime at issue beyond a reasonable doubt.1

Kelly's contention that the Commonwealth's evidence failed to 

exclude any reasonable hypotheses of innocence does not persuade 

us differently. Indeed, whether an "alternative hypothesis of 

innocence is reasonable is a question of fact and, therefore, is 

binding on appeal unless plainly wrong." Stevens v. Commonwealth, 

38 Va. App. 528, 535, 567 S.E.2d 537, 540 (2002) (citations 

omitted). On this evidence, it is clear that the trial court 

could have reasonably rejected Kelly's theories in his defense and 

found him guilty of transporting illegal drugs into the 

Commonwealth beyond a reasonable doubt. Indeed, the evidence 

gathered by Trooper Talbert during the stop excluded Kelly's 

 1

 We do not address the rather extensive discussion between 

the parties regarding whether the trial court properly relied 

upon its own knowledge of the local geography in reaching its 

conclusion because we find no evidence in the record reflecting 

the trial court's consideration of any such evidence. 
- 10 - 

theories of innocence presented at trial. See Hudson, 265 Va. at 

517, 578 S.E.2d at 787-88.2 Thus, the trial court was entitled to 

infer, upon its reasonable rejection of Kelly's alternative 

hypotheses of innocence, that Kelly was lying to conceal his 

guilt, lending further support to its judgment of guilt. Dowden 

v. Commonwealth, 260 Va. 459, 469-70, 536 S.E.2d 437, 442 (2000) 

(citations omitted). 

In regard to Kelly's next contention, that the Commonwealth 

failed to establish he possessed the drugs, we note that "[t]he 

Commonwealth may prove possession of a controlled substance by 

showing either actual or constructive possession." Barlow v. 

Commonwealth, 26 Va. App. 421, 429, 494 S.E.2d 901, 904 (1998). 

To support a conviction based upon constructive possession, "the 

Commonwealth must point to evidence of acts, statements, or 

conduct of the accused or other facts or circumstances which tend 

 2

 Furthermore, as noted above, Kelly testified at trial on 

his own behalf. During his testimony, Kelly specifically stated 

that he and Knight stopped at the Stuckey's to get "[s]oda, 

chips and . . . a lottery ticket." Kelly did not contend that 

he obtained the drugs at the Stuckey's, nor did he claim that 

Knight had the opportunity to obtain the drugs while they were 

there, so that he could put them in the car without Kelly's 

knowledge. Thus, to hold that it is a reasonable hypothesis 

that the drugs were obtained at the Stuckey's in Virginia would 

require an exercise in pure speculation outside the record. 

Indeed, contrary to the rationale in the concurring/dissenting 

opinion, no evidence presented at trial supports such a 

"hypothesis" of innocence. Moreover, it is well settled that 

the Commonwealth need only exclude reasonable hypotheses of 

innocence that flow from the evidence and that "[h]ypotheses not 

flowing from the evidence must be rejected." Fordham v. 

Commonwealth, 13 Va. App. 235, 239, 409 S.E.2d 829, 831 (1991). 
- 11 - 

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) (citation omitted). However, "[t]he Commonwealth 

is not required to prove that there is no possibility that someone 

else may have planted, discarded, abandoned or placed the 

drugs . . . ." Brown v. Commonwealth, 15 Va. App. 1, 10, 421 

S.E.2d 877, 883 (1992) (en banc). Further, possession of drugs, 

whether actual or constructive, need not be exclusive, but may 

instead be joint. Archer v. Commonwealth, 225 Va. 416, 418, 303 

S.E.2d 863, 863 (1983). Moreover, "[a]lthough mere proximity to 

the contraband is insufficient to establish possession, it is a 

factor that may be considered in determining whether a defendant 

possessed the contraband. Ownership or occupancy of the premises 

on which the contraband was found is likewise a circumstance 

probative of possession." Archer v. Commonwealth, 26 Va. App. 1, 

12, 492 S.E.2d 826, 832 (1997) (citation omitted). 

As stated above, in the case at bar, Trooper Talbert 

testified he noted a strong scent of burnt and green marijuana 

emanating from Kelly's vehicle. It is undisputed that Kelly was 

the owner and driver of the car, and appeared nervous during the 

encounter with the officer. Moreover, Kelly appeared surprised 

upon hearing he was being arrested for possession of cocaine and, 

at the police station, Kelly indicated the marijuana was not his 

before he had been informed there was marijuana in the bag. 
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Kelly's statements and conduct, in conjunction with his ownership 

of the vehicle and proximity to the drugs, clearly support the 

reasonable inference that he knowingly possessed them. Likewise, 

this evidence provided the trial court with a reasonable basis 

upon which to reject Kelly's protestations of innocence. We thus 

find the trial court reasonably determined that the Commonwealth's 

evidence was sufficient to prove beyond a reasonable doubt that 

Kelly was guilty of possession of marijuana with the intent to 

distribute. Accordingly, we affirm the judgment of the trial 

court as to each of Kelly's convictions. 

Affirmed.
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Elder, J., with whom Clements, J., joins, concurring, in part, 

 and dissenting, in part. 

 I concur in the majority's ruling affirming Demetrius 

Kelly's conviction for possessing marijuana with the intent to 

distribute. However, I would hold the evidence as found by the 

trial court was insufficient to prove Kelly imported narcotics 

into Virginia in violation of Code § 18.2-248.01. Therefore, I 

respectfully dissent from the portion of the majority opinion 

affirming Kelly's conviction for that offense. 

 Code § 18.2-248.01 provides, in pertinent part, that "it is 

unlawful for any person to transport into the Commonwealth by 

any means with intent to sell or distribute . . . five or more 

pounds of marijuana." "[A] violation of Code § 18.2-248.01 

occurs at the moment a person transporting illegal substances 

penetrates the borders of the Commonwealth." Seke v. 

Commonwealth, 24 Va. App. 318, 325, 482 S.E.2d 88, 91 (1997). 

To justify conviction of a crime, it is 

insufficient to create a suspicion or 

probability of guilt. Rather, the burden is 

upon the Commonwealth to prove every 

essential element of the offense beyond a 

reasonable doubt. "The evidence must 

exclude every reasonable hypothesis of 

innocence and be consistent only with the 

guilt of the accused." 

Moore v. Commonwealth, 254 Va. 184, 186, 491 S.E.2d 739, 740 

(1997) (quoting Powers v. Commonwealth, 211 Va. 386, 388, 177 

S.E.2d 628, 629 (1970)) (citations omitted). "Whether an 

alternative hypothesis of innocence is reasonable is a question 
- 14 - 

of fact and, therefore, is binding on appeal unless plainly 

wrong." Archer v. Commonwealth, 26 Va. App. 1, 12-13, 492 

S.E.2d 826, 832 (1997). "When [the] facts," viewed in the light 

most favorable to the Commonwealth, "are equally susceptible to 

more than one interpretation, one which is consistent with the 

innocence of the accused, the trier of fact cannot arbitrarily 

adopt an inculpatory interpretation." Moody v. Commonwealth, 28 

Va. App. 702, 706, 508 S.E.2d 354, 356 (1998). 

 Here, although the circumstances were suspicious, the 

record does not prove that Kelly possessed the drugs when he 

entered Virginia from Maryland. Although Kelly twice informed 

the officer that he and his companion were coming from 

"somewhere in Maryland," he did not indicate he purchased or 

possessed drugs at that time. Further, as the majority 

acknowledges in quoting the ruling below, the trial court 

expressly found that Kelly re-entered Virginia and "stopped at 

[a] Stuckey's roadside commercial establishment" "in Accomack 

County" before he was stopped by the officer. The fact that 

Kelly possessed the drugs in close proximity to the 

Virginia-Maryland state line and that he was coming from 

somewhere in Maryland does not reasonably support an inference 

that Kelly brought the drugs from Maryland into Virginia any 

more than it supports an inference that Kelly acquired the drugs 

after he came into Virginia. 
- 15 - 

 In McCary v. Commonwealth, 36 Va. App. 27, 41, 548 S.E.2d 

239, 246 (2001), we held the detective's testimony that McCary 

admitted bringing cocaine into Virginia from North Carolina 

provided sufficient evidence to support a Code § 18.2-248.01 

conviction. Here, by contrast, Kelly made no such admission to 

the police. Further, no evidence in the record indicates Kelly 

possessed the marijuana at the time he entered the Commonwealth, 

and the trial court expressly found that he stopped his vehicle 

at a Stuckey's after crossing back into Virginia. Thus, the 

evidence in the record, as found by the trial court, does not 

exclude the reasonable hypothesis that appellant obtained the 

drugs after returning to Virginia, and the trial court's 

implicit rejection of this hypothesis of innocence was plainly 

wrong. 

 Because the evidence was insufficient to exclude all 

reasonable hypotheses of innocence, I would reverse appellant's 

conviction for "transport[ing] into the Commonwealth . . . with 

intent to sell or distribute . . . five or more pounds of 

marijuana" in violation of Code § 18.2-248.01. 
- 16 - 

Benton, J., dissenting. 

 I would reverse both convictions. I join in the part of 

Judge Elder's dissenting opinion that "would hold the evidence 

as found by the trial court was insufficient to prove Kelly 

imported narcotics into Virginia in violation of Code 

§ 18.2-248.01." For the reasons that follow, I would also hold 

the evidence was insufficient to prove Kelly possessed the 

marijuana in violation of Code § 18.2-248.1. 

 This conviction was based on circumstantial evidence of 

constructive possession. To prove that an accused 

constructively possessed a controlled substance, "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 [accused] was aware of both the presence 

and character of the substance and that it was subject to his 

dominion and control." Powers v. Commonwealth, 227 Va. 474, 

476, 316 S.E.2d 739, 740 (1984). 

[W]ell established principles apply to 

testing the sufficiency of circumstantial 

evidence. . . . 

"[I]f the proof relied upon by the 

Commonwealth is wholly circumstantial, as it 

here is, then to establish guilt beyond a 

reasonable doubt all necessary circumstances 

proved must be consistent with guilt and 

inconsistent with innocence. They must 

overcome the presumption of innocence and 

exclude all reasonable conclusions 

inconsistent with that of guilt. To 

accomplish that, the chain of necessary 

circumstances must be unbroken and the 
- 17 - 

evidence as a whole must satisfy the guarded 

judgment that both the corpus delicti and 

the criminal agency of the accused have been 

proved to the exclusion of any other 

rational hypothesis and to a moral 

certainty." 

 But, circumstances of suspicion, no 

matter how grave or strong, are not proof of 

guilt sufficient to support a verdict of 

guilty. The actual commission of the crime 

by the accused must be shown by evidence 

beyond a reasonable doubt to sustain his 

conviction. 

Clodfelter v. Commonwealth, 218 Va. 619, 623, 238 S.E.2d 820, 

822 (1977) (citations omitted). 

 Although Kelly was in close proximity to the marijuana, he 

was no closer to it than his passenger. "Although both men were 

riding in the automobile, no evidence or rule of law compels a 

finding that a person who shares an automobile with another 

necessarily knows that the other person has contraband or also 

shares possession of contraband that the other person has in the 

automobile." Scruggs v. Commonwealth, 19 Va. App. 58, 62, 448 

S.E.2d 663, 665 (1994). See also Crisman v. Commonwealth, 197 

Va. 17, 20-21, 87 S.E.2d 796, 798-99 (1955) (occupants of an 

automobile not presumed to know that a small amount of white 

powder on the floor was heroin); Jones v. Commonwealth, 17 

Va. App. 572, 573, 439 S.E.2d 863, 864 (1994) (occupant of 

automobile not presumed to have awareness of presence and 

character of small pieces of cocaine on tray between occupant 

and driver). Furthermore, Code § 18.2-250 could not be clearer: 
- 18 - 

"Upon the prosecution of a person [for possession of a 

controlled substance], ownership or occupancy of . . . [a] 

vehicle upon or in which a controlled substance was found shall 

not create a presumption that such person either knowingly or 

intentionally possessed such controlled substance." The opaque 

duffel bag in the rear compartment of the vehicle was not proved 

to be Kelly's. Indeed, the evidence is equally consistent with 

the conclusion that the duffel bag belonged solely to Kelly's 

passenger. 

 The police officer testified that during the road-side 

interrogation Kelly denied he had drugs or guns in the vehicle. 

Despite Kelly's denial, the officer searched the vehicle because 

he believed he detected the smell of "a sweet deodorizer, and 

. . . [the] smell [of] burnt marijuana . . . and a greenish 

tinge of marijuana . . . from outside the car." No evidence, 

however, established that Kelly knew or should have known that 

the odor, which the officer said he detected, indicated the bag 

contained marijuana. The officer's interrogation about the 

marijuana obviously put Kelly on notice that the officer 

suspected its presence. 

 Furthermore, the evidence contains innocent explanations 

for Kelly's surprised reaction to the cocaine accusation, for 

his statement at the police station concerning the marijuana, 

and for his denial that the marijuana was his. The officer 

testified that, before he searched the vehicle, he "advised 
- 19 - 

. . . Kelly that [he] smelled marijuana in the car and . . . was 

going to check the vehicle." After seizing the bag, the officer 

"thought . . . [it] might have [contained] cocaine and 

marijuana." The evidence proved Kelly expressed surprise when 

the officer told him he was "under arrest for trafficking 

cocaine." That expression of surprise is consistent with 

Kelly's disbelief that cocaine was in the vehicle and with 

incredulity that some other unlawful substance existed when the 

officer had said he smelled marijuana. 

 The officer's testimony about the events following the 

arrest did not prove beyond a reasonable doubt Kelly knew 

marijuana was in the duffel bag in the rear compartment of the 

vehicle he was driving. He described those events as follows: 

A: Mr. Kelly and Mr. Knight were separated 

and they were put in the task force office 

in another room where they couldn't see us 

and they were being watched at a desk in the 

office. 

Q: Were they separated from one another? 

A: They were separated from one another and 

from the contraband. 

Q: They were not in that same room? 

A: That's correct, they were not. 

Q: Was there any further conversation with 

the defendant, Mr. Kelly? 

A: He sat there in the open room of the 

stuff. I started taking the items out and 

placed them on the table to see what they 

were and kind of walked back and forth 

between Mr. Kelly and the other room and 
- 20 - 

observed what was going on. Mr. Kelly just 

blurted out, he said, Man, that ain't my 

weed. 

Q: Had you said anything to him about weed? 

A: Not as of yet. I didn't know it was 

marijuana until we took it out and started 

cutting it open. 

Q: Was he in a position to be able to see 

the "weed"? 

A: No, sir. 

Q: So had he been questioned about 

marijuana? 

A: Yes. 

 In view of the officer's testimony that he told Kelly he 

would search the vehicle because he smelled marijuana and that 

he interrogated Kelly at the road-side about marijuana, Kelly 

could have reasonably concluded that the bag the officer seized 

contained marijuana. Thus, the evidence provides ample bases 

for Kelly to believe the officers found marijuana and to 

preemptively declare the marijuana was not his. In short, the 

evidence does not support an inference that Kelly knew marijuana 

was in the vehicle before the officer stopped him. 

 This evidence proved only suspicious circumstances arising 

from Kelly's proximity to the duffel bag. Inferences that are 

drawn from these suspicious circumstances alone are not 

sufficient to prove knowing possession of a controlled 

substance. No evidence proved Kelly knew the controlled 

substances were in the bag before the officer opened it and 
- 21 - 

arrested him. "Evidence merely that the accused was in the 

proximity of controlled substances is insufficient . . . to 

prove that the accused was aware of the presence and character 

of a controlled substance." Jones, 17 Va. App. at 574, 439 

S.E.2d at 864. 

 Even if it is probable that the marijuana belonged to 

Kelly, probability of guilt is insufficient to warrant a 

criminal conviction. Crisman, 197 Va. at 21, 87 S.E.2d at 799. 

Because "evidence must establish the guilt of an accused beyond 

a reasonable doubt . . . [,] guilt . . . is not to be inferred 

because the facts are consistent with his guilt, but they must 

be inconsistent with his innocence." Cameron v. Commonwealth, 

211 Va. 108, 110-11, 175 S.E.2d 275, 276 (1970). Suspicious 

circumstances "'no matter how grave or strong, are not proof of 

guilt sufficient to support a verdict of guilty. The actual 

commission of the crime by the accused must be shown by evidence 

beyond a reasonable doubt to sustain his conviction.'" Crisman, 

197 Va. at 21, 87 S.E.2d at 799 (quoting Powers v. Commonwealth, 

182 Va. 669, 676, 30 S.E.2d 22, 25 (1944)). 

 For these reasons, I would reverse both convictions. 
- 22 - 

 Friday 21st 

 February, 2003. 

Demetrius Kelly, Appellant, 

 against Record No. 3100-01-1 

 Circuit Court No. 00CR200 

Commonwealth of Virginia, Appellee. 

 

Upon a Petition for Rehearing En Banc 

Before the Full Court 

On January 30, 2003 came the appellee, by the Attorney 

General of Virginia, and filed a petition praying that the Court 

set aside the judgment rendered herein on January 21, 2003, and 

grant a rehearing en banc thereof. 

On consideration whereof, the petition for rehearing 

en banc is granted, the mandate entered herein on January 21, 

2003 is stayed pending the decision of the Court en banc, and 

the appeal is reinstated on the docket of this Court. 

The parties shall file briefs in compliance with Rule 

5A:35. The appellee shall attach as an addendum to the opening 

brief upon rehearing en banc a copy of the opinion previously 

rendered by the Court in this matter. It is further ordered that 

the appellee 
shall file with the clerk of this Court twelve additional copies 

of the appendix previously filed in this case. 

 A Copy, 

 Teste: 

 Cynthia L. McCoy, Clerk 

 By: 

 

 Deputy Clerk 

- 23 -
COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Elder and Senior Judge Coleman 

Argued at Chesapeake, Virginia 

DEMETRIUS KELLY 

 MEMORANDUM OPINION* BY 

v. Record No. 3100-01-1 JUDGE SAM W. COLEMAN III 

 JANUARY 21, 2003 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF ACCOMACK COUNTY 

Glen A. Tyler, Judge 

 William L. Taliaferro, Jr. (Swartz, 

Rabinowitz, Taliaferro, Lewis, Swartz & 

Goodove, on briefs), for appellant. 

 John H. McLees, Senior Assistant Attorney 

General (Jerry W. Kilgore, Attorney General; 

Susan M. Harris, Assistant Attorney General, 

on brief), for appellee. 

 Demetrius Kelly appeals his bench trial convictions for 

importing narcotics into Virginia with the intent to distribute, 

Code § 18.2-248.01, and possessing marijuana with the intent to 

distribute, Code § 18.2-248.1. He argues the evidence was 

insufficient to support his convictions. Finding the evidence 

insufficient to convict Kelly of importing narcotics into 

Virginia but sufficient to convict him of possession of 

marijuana with the intent to distribute, we reverse in part and 

affirm in part the judgment of the trial court. 

 

* Pursuant to Code § 17.1-413, this opinion is not designated 

for publication.

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BACKGROUND

 When the sufficiency of the evidence is challenged on 

appeal, we review the evidence "in the light most favorable to 

the Commonwealth, granting to it all reasonable inferences 

fairly deducible therefrom." Bright v. Commonwealth, 4 Va. App. 

248, 250, 356 S.E.2d 443, 444 (1997). "In so doing, we must 

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." Watkins v. Commonwealth, 26 Va. App. 335, 

349, 494 S.E.2d 859, 866 (1998). We are further mindful that 

the "credibility of a witness, the weight accorded the 

testimony, and the inferences to be drawn from proven facts are 

matters solely for the fact finder's determination." Crawley v. 

Commonwealth, 29 Va. App. 372, 375, 512 S.E.2d 169, 170 (1999). 

 So viewed, the evidence proved that on March 14, 2000, 

State Trooper William Talbert stopped the vehicle Kelly was 

driving for having unapproved tinting on its windows. Kelly was 

driving southbound on Route 13 in Accomack County. Talbert 

approached the driver's side of the vehicle and asked Kelly for 

his identification. The officer testified Kelly appeared 

nervous and that his hands shook. Talbert detected the odors of 

both burnt and "green" marijuana. 

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 Kelly's license bore a Norfolk address. Talbert asked 

Kelly from where he was travelling. Kelly twice told the 

officer that he and his passenger, Joey Knight, had been in 

Maryland. Knight told the officer they were coming from New 

York. 

 Talbert searched Kelly's vehicle and found marijuana seeds, 

flakes, and chunks throughout the car. In the back of the 

vehicle, the officer found a black duffel bag. Its contents 

were heavily wrapped in cellophane. Talbert told Kelly he was 

under arrest for trafficking cocaine. Talbert testified Kelly 

looked "extremely surprised" and stated, "cocaine?" Talbert 

transported the two men to the police station and as he placed 

the duffel bag on a table, Kelly exclaimed, "Man, that ain't my 

weed." Talbert testified he did not know the contents of the 

bag until he cut through the cellophane, that Kelly was not 

placed where he could observe the contents of the bag, and had 

not been told the bag contained marijuana. 

 The bag contained twenty pounds and five ounces of 

marijuana. Talbert testified that amount of marijuana was 

inconsistent with personal use. Where Talbert stopped and 

searched Kelly's vehicle was approximately ten miles from the 

Virginia-Maryland state line. 

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ANALYSIS

I. 

 In pertinent part, Code § 18.2-248.01 provides that "it is 

unlawful for any person to transport into the Commonwealth by 

any means with intent to sell or distribute . . . five or more 

pounds of marijuana." Kelly argues the Commonwealth failed to 

prove he transported the drugs into Virginia. We agree. 

 "[A] violation of Code § 18.2-248.01 occurs at the moment a 

person transporting illegal substances penetrates the borders of 

the Commonwealth." Seke v. Commonwealth, 24 Va. App. 318, 325, 

482 S.E.2d 88, 91 (1997). Although the circumstances were 

suspicious, the record does not support the trial court's 

conclusion that Kelly possessed the drugs when he entered 

Virginia from Maryland. Although Kelly twice informed the 

officer that he and Knight were coming from "somewhere in 

Maryland," he did not indicate he purchased or possessed the 

drugs at that time and the evidence does not prove that 

essential element. The fact that Kelly possessed the drugs in 

close proximity to the Virginia-Maryland state line and that he 

was coming from somewhere in Maryland does not reasonably 

support an inference by the fact finder that Kelly brought the 

drugs from Maryland into Virginia anymore so than that he 

acquired the drugs after he came into Virginia. 

 In McCary v. Commonwealth, 36 Va. App. 27, 548 S.E.2d 239 

(2001), we held that the detective's testimony that McCary 

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admitted bringing cocaine into Virginia from North Carolina 

provided sufficient evidence to support a Code § 18.2-248.01 

conviction. Id. at 41, 548 S.E.2d at 246. Kelly made no such 

admission to the police, and no evidence in the record indicates 

Kelly possessed the marijuana at the time he entered the 

Commonwealth. 

To justify conviction of a crime, it is 

insufficient to create a suspicion or 

probability of guilt. Rather, the burden is 

upon the Commonwealth to prove every 

essential element of the offense beyond a 

reasonable doubt. "The evidence must 

exclude every reasonable hypothesis of 

innocence and be consistent only with the 

guilt of the accused." 

Moore v. Commonwealth, 254 Va. 184, 186, 491 S.E.2d 739, 740 

(1997) (citation omitted). Because neither Kelly nor Knight 

admitted obtaining the drugs while out of state, and because no 

other evidence indicated Kelly brought the marijuana from 

outside Virginia, the evidence was insufficient to support his 

Code § 18.2-248.01 conviction. 

II. 

 Kelly argues only that the Commonwealth failed to establish 

he possessed the contraband. We disagree. 

 "The Commonwealth may prove possession of a controlled 

substance by showing either actual or constructive possession." 

Barlow v. Commonwealth, 26 Va. App. 421, 429, 494 S.E.2d 901, 

904 (1998). 

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To support a conviction based upon 

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) (citation omitted). "The Commonwealth is not required to 

prove that there is no possibility that someone else may have 

planted, discarded, abandoned or placed the drugs . . . ." 

Brown v. Commonwealth, 15 Va. App. 1, 10, 421 S.E.2d 877, 883 

(1992) (en banc). "Although mere proximity to the contraband is 

insufficient to establish possession, it is a factor that may be 

considered in determining whether a defendant possessed the 

contraband. Ownership or occupancy of the premises on which the 

contraband was found is likewise a circumstance probative of 

possession." Archer v. Commonwealth, 26 Va. App. 1, 12, 492 

S.E.2d 826, 832 (1997). 

 Talbert testified he noted a strong scent of burnt and 

green marijuana emanating from Kelly's vehicle. Kelly was the 

owner and driver of the car and appeared nervous during the 

encounter with the officer. Kelly appeared surprised upon 

hearing he was being arrested for possession of cocaine. At the 

police station, Kelly indicated the marijuana was not his before 

he had been informed there was marijuana in the bag. Kelly's 

statements and conduct, his ownership of the vehicle, and 

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proximity to the drugs indicate he knowingly possessed the 

contraband. The Commonwealth's evidence was competent, was not 

inherently incredible, and was sufficient to prove beyond a 

reasonable doubt that Kelly was guilty of possession of 

marijuana with the intent to distribute. 

 Accordingly, we affirm Kelly's conviction for possession of 

marijuana with the intent to distribute, and we reverse his 

conviction for importing narcotics into Virginia with the intent 

to distribute and dismiss that indictment. 

Affirmed in part, 

reversed in part 

and dismissed. 

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Benton, J., concurring, in part, and dissenting, in part. 

 I join in the parts of the opinion styled BACKGROUND and 

ANALYSIS (I); therefore, I concur in reversing the conviction 

for importing narcotics into Virginia with the intent to 

distribute. I dissent from ANALYSIS (II). 

 This conviction was based on circumstantial evidence of 

constructive possession. To prove that an accused 

constructively possessed a controlled substance, "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 [accused] was aware of both the presence 

and character of the substance and that it was subject to his 

dominion and control." Powers v. Commonwealth, 227 Va. 474, 

476, 316 S.E.2d 739, 740 (1984). 

[W]ell established principles apply to 

testing the sufficiency of circumstantial 

evidence . . . . 

 "[I]f the proof relied upon by the 

Commonwealth is wholly circumstantial, as it 

here is, then to establish guilt beyond a 

reasonable doubt all necessary circumstances 

proved must be consistent with guilt and 

inconsistent with innocence. They must 

overcome the presumption of innocence and 

exclude all reasonable conclusions 

inconsistent with that of guilt. To 

accomplish that, the chain of necessary 

circumstances must be unbroken and the 

evidence as a whole must satisfy the guarded 

judgment that both the corpus delicti and 

the criminal agency of the accused have been 

proved to the exclusion of any other 

rational hypothesis and to a moral 

certainty." 

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 But, circumstances of suspicion, no 

matter how grave or strong, are not proof of 

guilt sufficient to support a verdict of 

guilty. The actual commission of the crime 

by the accused must be shown by evidence 

beyond a reasonable doubt to sustain his 

conviction. 

Clodfelter v. Commonwealth, 218 Va. 619, 623, 238 S.E.2d 820, 

822 (1977) (citations omitted). 

 Although Kelly was in close proximity to the marijuana, he 

was no closer to it than his passenger. Furthermore, Code 

§ 18.2-250 could not be clearer: "Upon the prosecution of a 

person [for possession of a controlled substance], ownership or 

occupancy of . . . [a] vehicle upon or in which a controlled 

substance was found shall not create a presumption that such 

person either knowingly or intentionally possessed such 

controlled substance." The opaque duffel bag in the rear 

compartment of the vehicle was not shown to be Kelly's. Indeed, 

the evidence is equally consistent with the conclusion that the 

duffel bag belonged to Kelly's passenger. "Although both men 

were riding in the automobile, no evidence or rule of law 

compels a finding that a person who shares an automobile with 

another necessarily knows that the other person has contraband 

or also shares possession of contraband that the other person 

has in the automobile." Scruggs v. Commonwealth, 19 Va. App. 

58, 62, 448 S.E.2d 663, 665 (1994). See also Crisman v. 

Commonwealth, 197 Va. 17, 20-21, 87 S.E.2d 796, 798-99 (1955) 

(occupants of an automobile not presumed to know that a small 

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amount of white powder on the floor was heroin); Jones v. 

Commonwealth, 17 Va. App. 572, 573, 439 S.E.2d 863, 864 (1994) 

(occupant of automobile not presumed to have awareness of 

presence and character of small pieces of cocaine on tray 

between occupant and driver). 

 The police officer testified that during the road-side 

interrogation Kelly denied he had drugs or guns in the vehicle. 

Despite Kelly's denial, the officer searched the vehicle because 

he believed he detected the smell of "a sweet deodorizer, and 

. . . [the] smell [of] burnt marijuana . . . and a greenish 

tinge of marijuana . . . from outside the car." No evidence, 

however, established that Kelly knew or should have known that 

the odor, which the officer said he detected, indicated the bag 

contained marijuana. 

 Furthermore, the evidence contains innocent explanations 

for Kelly's surprised reaction to the cocaine accusation, for 

his statement at the police station concerning the marijuana, 

and for denying that the marijuana was his. The officer 

testified that before he searched the vehicle, he "advised . . . 

Kelly that [he] smelled marijuana in the car and . . . was going 

to check the vehicle." After seizing the bag, he "thought . . . 

[it] might have [contained] cocaine and marijuana." The 

evidence proved Kelly expressed surprise when the officer told 

him he was "under arrest for trafficking cocaine." That 

expression of surprise is consistent with Kelly's disbelief that 

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cocaine was in the vehicle and with incredulity that some other 

unlawful substance existed when the officer had said he smelled 

marijuana. 

 The officer's testimony about the events following the 

arrest did not prove beyond a reasonable doubt Kelly knew when 

he was driving that marijuana was in the duffel bag in the rear 

compartment. He described those events as follows: 

A: Mr. Kelly and Mr. Knight were separated 

and they were put in the task force office 

in another room where they couldn't see us 

and they were being watched at a desk in the 

office. 

Q: Were they separated from one another? 

A: They were separated from one another and 

from the contraband. 

Q: They were not in that same room? 

A: That's correct, they were not. 

Q: Was there any further conversation with 

the defendant, Mr. Kelly? 

A: He sat there in the open room of the 

stuff. I started taking the items out and 

placed them on the table to see what they 

were and kind of walked back and forth 

between Mr. Kelly and the other room and 

observed what was going on. Mr. Kelly just 

blurted out, he said, Man, that ain't my 

weed. 

Q: Had you said anything to him about weed? 

A: Not as of yet. I didn't know it was 

marijuana until we took it out and started 

cutting it open. 

Q: Was he in a position to be able to see 

the "weed"? 

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A: No, sir. 

Q: So had he been questioned about 

marijuana? 

A: Yes. 

In view of the officer's statement to Kelly that he would search 

the vehicle because he smelled marijuana and the officer's 

interrogation of Kelly about marijuana, the evidence provides 

ample bases for Kelly to believe the officers found marijuana 

and to preemptively declare the marijuana was not his. 

 This evidence proved only suspicious circumstances because 

of Kelly's proximity to the duffel bag. Inferences that are 

drawn from these suspicious circumstances alone are not 

sufficient to prove knowing possession of a controlled 

substance. No evidence proved that Kelly knew the controlled 

substances were in the bag before the officer opened it and 

arrested him. "Evidence merely that the accused was in the 

proximity of controlled substances is insufficient . . . to 

prove that the accused was aware of the presence and character 

of a controlled substance." Jones, 17 Va. App. at 574, 439 

S.E.2d at 864. 

 Even if it is probable that the marijuana belonged to 

Kelly, probability of guilt is insufficient to warrant a 

criminal conviction. Crisman, 197 Va. at 21, 87 S.E.2d at 799. 

Because "the evidence must establish the guilt of an accused 

beyond a reasonable doubt . . . [,] guilt . . . is not to be 

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inferred because the facts are consistent with his guilt, but 

they must be inconsistent with his innocence." Cameron v. 

Commonwealth, 211 Va. 108, 110-11, 175 S.E.2d 275, 276 (1970). 

Suspicious circumstances "'no matter how grave or strong, are 

not proof of guilt sufficient to support a verdict of guilty. 

The actual commission of the crime by the accused must be shown 

by evidence beyond a reasonable doubt to sustain his 

conviction.'" Crisman, 197 Va. at 21, 87 S.E.2d at 799 (quoting 

Powers v. Commonwealth, 182 Va. 669, 676, 30 S.E.2d 22, 25 

(1944)). 

 For these reasons, I would reverse both convictions. 

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