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. 
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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.