COURT OF APPEALS OF VIRGINIA 

Present: Judges Coleman, Bumgardner and Lemons 

Argued at Salem, Virginia 

WILLIAM A. BUTTS 

 MEMORANDUM OPINION* BY 

v. Record No. 1345-98-3 JUDGE RUDOLPH BUMGARDNER, III 

 MARCH 9, 1999 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF HENRY COUNTY 

David V. Williams, Judge 

 Elwood Earl Sanders, Jr., Appellate Defender 

(Public Defender Commission, on briefs), for 

appellant. 

 Daniel J. Munroe, Assistant Attorney General 

(Mark L. Earley, Attorney General, on brief), 

for appellee. 

 

 *Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, 

this opinion is not designated for publication.

 The defendant appeals his conviction at a bench trial of 

possession of marijuana. He contends the evidence was 

insufficient to establish that he had actual possession of the 

marijuana. For the following reasons, we affirm. 

 On appeal we view the evidence in the light most favorable 

to the Commonwealth, granting to it all reasonable inferences 

fairly deducible therefrom. See Archer v. Commonwealth, 26 Va. 

App. 1, 11, 492 S.E.2d 826, 831 (1997). In so doing, we must 

discard the evidence of the accused in conflict with that of the 

Commonwealth, see Cirios v. Commonwealth, 7 Va. App. 292, 295, 

373 S.E.2d 164, 165 (1988), and not substitute our judgment for 

that of the fact finder. See Cable v. Commonwealth, 243 Va. 236, 
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239, 415 S.E.2d 218, 220 (1992). The trial court's judgment will 

not be disturbed on appeal unless plainly wrong or without 

evidence to support it. See Josephs v. Commonwealth, 10 Va. App. 

87, 99, 390 S.E.2d 491, 497 (1990) (en banc). Finally, the 

credibility of the witnesses and the weight to be accorded their 

testimony are matters solely for the fact finder who can accept 

or reject the testimony in whole or in part. See Bridgeman v. 

Commonwealth, 3 Va. App. 523, 528, 351 S.E.2d 598, 601 (1986). 

 Patrick Henry Correctional Unit officers received 

information that the defendant possessed marijuana, so they 

performed a shakedown inspection in his dormitory area. Three 

officers secured the area and brought the defendant there. The 

defendant admitted that the area around his bed contained his 

property. 

 As one officer picked up the defendant’s pillow, he noticed 

that the defendant "actually paled." When he started to lay the 

pillow down, he testified, "you could see the relief on the 

defendant’s face." The officer inspected the pillow again, and 

found two baggies of marijuana hidden in the pillowcase. The 

defendant admitted that the day before he helped two inmates 

package the marijuana which they found in his pillow. He denied 

hiding the drugs in his pillow and maintained that he was set up. 

Possession may be actual or constructive. 

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 
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of the substance and that it was subject to 

his dominion and control." 

Logan v. Commonwealth, 19 Va. App. 437, 444, 452 S.E.2d 364, 

368-69 (1994) (en banc) (citations omitted). Cf. Hairston v. 

Commonwealth, 5 Va. App. 183, 186, 360 S.E.2d 893, 895 (1987). 

Further, "proof that a person is in close proximity to contraband 

is a relevant fact that, depending on the circumstances, may tend 

to show that . . . the person necessarily knows of the presence, 

nature and character of a substance that is found there." 

Burchette v. Commonwealth, 15 Va. App. 432, 435, 425 S.E.2d 81, 

83 (1992) (citation omitted). 

 The defendant admitted helping package the marijuana the day 

before. When the officer picked up his pillow, his face paled. 

When the officer replaced it, he looked relieved. The 

defendant’s statement and conduct were sufficient to permit the 

fact finder to infer that the defendant knew the drugs were 

hidden where the officers found them. See Hairston, 5 Va. App. 

at 186, 360 S.E.2d at 895; Jones v. Commonwealth, 23 Va. App. 93, 

99-100, 474 S.E.2d 825, 828 (1996). 

 The defendant also argues that the fact that others had 

access to his dormitory area raises an inference of innocence. 

This argument is not persuasive. Possession need not be 

exclusive. See Archer v. Commonwealth, 225 Va. 416, 418, 303 

S.E.2d 863, 863 (1983). Further, the record does not support the 

contention that anyone had been in the defendant’s area or had 

interfered with it. The defendant admitted that the items in 
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this area were his and that he knew the marijuana existed. The 

defendant’s hypothesis of innocence must flow from the evidence 

itself, not from the imagination of defense counsel. See Spencer 

v. Commonwealth, 238 Va. 275, 283-84, 384 S.E.2d 775, 779 (1989), 

cert. denied, 493 U.S. 1036 (1990). 

 Concluding that the evidence is sufficient to permit a 

conviction, we affirm. 

Affirmed.