COURT OF APPEALS OF VIRGINIA 

Present: Judges Elder, Lemons and Senior Judge Cole 

Argued at Richmond, Virginia 

REGINALD D. HAYSPELL, SOMETIMES KNOWN AS 

 REGINALD DARRELL HAYSPELL 

 MEMORANDUM OPINION* BY 

v. Record No. 2541-97-2 JUDGE DONALD W. LEMONS 

 FEBRUARY 9, 1999 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF BRUNSWICK COUNTY 

James A. Luke, Judge 

 H. Benjamin Vincent (Vincent Law Firm, on 

brief), for appellant. 

 Linwood T. Wells, Jr., Assistant Attorney 

General (Mark L. Earley, Attorney General, on 

brief), for appellee. 

 

 Reginald Darrell Hayspell appeals his convictions for 

possession of cocaine and possession of marijuana with intent to 

distribute. On appeal, he argues that the evidence was 

insufficient to support his convictions. We disagree and affirm 

both convictions. 

BACKGROUND

 On December 4, 1996, members of the Meherrin Drug Task Force 

in the Brunswick County Sheriff's Department, including 

Investigator Anthony Gibbs, executed a search warrant at a 

residence owned by the parents of Reginald D. Hayspell, 

appellant. The search warrant instructed Gibbs to search 

Hayspell's person as well as his parents' residence. 

 

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

this opinion is not designated for publication. 
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 When Gibbs entered the residence, he saw Hayspell and his 

mother walking down the stairs. Hayspell's sister, aunt and a 

male cousin were also present, and his father arrived during the 

execution of the warrant. Gibbs climbed the stairs and entered a 

bedroom, the only room on the left side of the hallway. Gibbs 

observed a dresser, a nightstand, a baby crib, a shoebox located 

by the doorway, men's shoes, jewelry including a "men's fashion 

type" gold chain, and men's clothing. On the dresser, Gibbs 

noticed crack cocaine lying in plain view. On the nightstand 

next to the bed, Gibbs saw a class ring engraved with the name 

"Reginald" on the outside, and a "financial binder" with some 

forms and documents. In the shoebox located by the door 

approximately six feet from the nightstand and dresser, Gibbs 

found marijuana and electronic scales. Gibbs testified that the 

scales were of the type used to weigh narcotics. 

 After the marijuana was discovered, Hayspell's cousin stated 

to Gibbs that it belonged to him. Gibbs stated that Hayspell's 

cousin was taken to the sheriff's office, where he recanted his 

admission stating that he would "not tak[e] the blame for nobody" 

and that "he was told to take the blame." On August 28, 1997, 

Hayspell was found guilty in a bench trial of possession of 

cocaine and possession of marijuana with intent to distribute. 

SUFFICIENCY OF THE EVIDENCE

 "When the sufficiency of the evidence is an issue on appeal, 

an appellate court must view the evidence and all reasonable 
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inferences fairly deducible therefrom in the light most favorable 

to the Commonwealth." Cheng v. Commonwealth, 240 Va. 26, 42, 393 

S.E.2d 599, 608 (1990) (citing Stockton v. Commonwealth, 227 Va. 

124, 145-46, 314 S.E.2d 371, 385 (1984)). On appeal, the 

decision of a trial court sitting without a jury is afforded the 

same weight as a jury's verdict and will not be disturbed unless 

plainly wrong or without evidence to support it. King v. 

Commonwealth, 217 Va. 601, 604, 231 S.E.2d 312, 315 (1977). 

 To prove ownership of a controlled substance, the 

Commonwealth may prove either actual or constructive possession. 

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

(1998); White v. Commonwealth, 24 Va. App. 446, 452, 482 S.E.2d 

876, 879 (1997) (citations omitted). 

 To establish "possession" in the legal sense, 

it is not sufficient to simply show actual or 

constructive possession of the drug by the 

defendant. The Commonwealth must also 

establish that the defendant intentionally 

and consciously possessed it with knowledge 

of its nature and character. 

Burton v. Commonwealth, 215 Va. 711, 713, 213 S.E.2d 757, 758-59 

(1975) (citations omitted). "Knowledge of the presence and 

character of the controlled substance may be shown by evidence of 

the acts, statements or conduct of the accused." Eckhart v. 

Commonwealth, 222 Va. 447, 450, 281 S.E.2d 853, 855 (1981). 

 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 
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dominion and control. 

Glasco v. Commonwealth, 26 Va. App. 763, 774, 497 S.E.2d 150, 155 

(1998) (citations omitted). 

 Although proximity alone is insufficient to establish 

possession, it may be considered as a factor in determining if a 

defendant possessed narcotics. See Glasco, 26 Va. App. at 774, 

497 S.E.2d at 155; Anderson v. Commonwealth, 26 Va. App. 1, 12, 

492 S.E.2d 826, 832 (1997). The fact finder must look to the 

"totality of the circumstances" in its determination of whether 

the accused constructively possessed the object in question. See

Glasco, 26 Va. App. at 774, 497 S.E.2d at 155. 

 In Spivey v. Commonwealth, 23 Va. App. 715, 479 S.E.2d 543 

(1997), the defendant appealed her convictions for possession of 

narcotics and possession of narcotics with intent to distribute, 

arguing in part that the evidence was insufficient to prove 

possession. The trial court's consideration of the "totality of 

the circumstances disclosed by the evidence" included: 

 (1) The defendant ran from the living room 

to the kitchen as police entered the home. 

 (2) "Contemporary documents, personal to the 

defendant and addressed to the subject 

premises, were discovered on a desk in the 

living room, together with cocaine." 

 (3) A "big piece" of crack cocaine was 

visible "in plain view on a dresser located 

in a bedroom, together with woman's clothing, 

underwear, and jewelry." 

 (4) Numerous bags of marijuana were 

discovered in the bedroom, living room, and 
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kitchen. 

Id. at 725, 479 S.E.2d at 548. Holding that "[t]he only 

reasonable hypothesis arising from such evidence is that 

defendant constructively possessed the cocaine and marijuana 

found in plain view and stashed throughout her residence, aware 

of the nature and character of the drugs," we affirmed her 

convictions. Id. at 725, 479 S.E.2d at 548. 

 In Shurbaji v. Commonwealth, 18 Va. App. 415, 444 S.E.2d 549 

(1994), the defendant appealed his conviction for possession of 

cocaine with intent to distribute, arguing in part that the 

evidence was insufficient to prove that he constructively 

possessed cocaine. The defendant denied that he resided in the 

house, and argued that the Commonwealth was precluded from 

proving possession because he was not present during the search. 

 In Shurbaji, the Commonwealth's case of constructive 

possession was necessarily based on circumstantial evidence. See

id. at 423, 444 S.E.2d at 553. We noted that "[c]ircumstantial 

evidence is as competent and is entitled to as much weight as 

direct evidence, provided it is sufficiently convincing to 

exclude every reasonable hypothesis except that of guilt." Id.

at 423, 444 S.E.2d at 553 (citations omitted). We examined the 

evidence considered by the fact finder in Shurbaji's case: 

 (1) that the defendant often paid the 

mortgage on the residence and was usually at 

the residence early in the morning; 

 (2) solely men's clothing found in the 

master bedroom, and the defendant's sister's 

testimony that he kept personal belongings 
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there; 

 (3) his sister's testimony that he 

"periodically stayed overnight and slept in 

the master bedroom"; 

 (4) "in plain view or on readily accessible 

dresser drawers and night stands, the police 

found a significant amount of cocaine and 

drug paraphernalia," along with the 

defendant's passport, his wallet containing 

his credit and bank cards, personal checks 

signed by him, and "current personal papers 

and envelopes addressed to him at the 

searched residence"; 

 (5) a jacket in the closet which contained a 

prescription bottle bearing his name, and a 

"snow-seal" filled with cocaine powder; 

 (6) the presence of the key to a safety 

deposit box registered in the defendant's 

name, and used solely by him; 

 (7) and "nothing in the room [to] indicate[] 

that anyone other than the [defendant] had 

any interest in the items found." 

Id. at 424, 444 S.E.2d at 554. 

 In affirming his conviction, we held, "[w]e agree with the 

Commonwealth that the evidence in this case clearly proved that 

[Shurbaji] owned and constructively possessed the cocaine and 

paraphernalia seized by the police from the master bedroom of the 

residence, and that such possession was with the intent to 

distribute." Id. at 424, 444 S.E.2d at 554. 

 In support of his argument that the Commonwealth failed to 

prove that he constructively possessed the cocaine found in the 

bedroom, Hayspell cites Torian v. Commonwealth, No. 1770-96-2 

(Va. Ct. App. May 27, 1997), and Norton v. Commonwealth, No. 
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1897-95-2 (Va. Ct. App. June 25, 1996) (two unpublished opinions 

of this Court); Burchette v. Commonwealth, 15 Va. App. 432, 425 

S.E.2d 81 (1992); Drew v. Commonwealth, 230 Va. 471, 338 S.E.2d 

844 (1986); Behrens v. Commonwealth, 3 Va. App. 131, 348 S.E.2d 

430 (1986); Garland v. Commonwealth, 225 Va. 182, 300 S.E.2d 783 

(1983); and Clodfelter v. Commonwealth, 218 Va. 619, 230 Va. 471 

(1977). However, each may be distinguished from the instant 

case. In Clodfelter, Norton and Behrens, each defendant was 

convicted of possession of narcotics in a rented hotel room 

rather than where any one of the defendants resided. In each of 

these three cases, the defendant's conviction was reversed 

because the reviewing court held that there was insufficient 

evidence for the trial court to find that drugs found in the 

hotel rooms were constructively possessed by the individual 

defendant. Clodfelter, 218 Va. at 623-24, 238 S.E.2d at 822; 

Norton, No. 1897-95-2, slip op. at 2; Behrens, 3 Va. App. at 

136-38, 348 S.E.2d at 433-34. 

 Similarly, in Drew, Garland, Burchette and Torian, the 

reviewing court held that there was insufficient evidence to 

support the defendant's drug possession convictions. In Drew, 

the Supreme Court of Virginia held that the defendant's mere 

proximity to the residence on the night of the search and his 

occupancy of it were insufficient to prove that he possessed 

cocaine found inside. Drew, 230 Va. at 473-74, 338 S.E.2d at 

845. In Garland, the Court reversed the defendant's conviction 
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of possession of cocaine. The Court held that the presence of 

men's clothing, an expired motor vehicle operator's license, and 

a lease agreement naming him and another person as lessors was 

insufficient to sustain his conviction where there was no 

testimony offered to show that the defendant currently lived at 

the residence. Garland, 225 Va. at 184, 300 S.E.2d at 784-85. 

In Torian, we reversed defendant's conviction for possession of 

cocaine, holding that the defendant's mere presence in the house, 

but not in any of the bedrooms where the cocaine was found, was 

insufficient to show that she possessed the cocaine. Torian, No. 

1770-96-2, slip op. at 2. In Burchette, we reversed the 

defendant's conviction for possession of marijuana, holding that 

ownership of a car in which marijuana was found was alone 

insufficient to show that the defendant exercised dominion and 

control over its contents at the time the contraband was 

discovered. Burchette, 15 Va. App. at 437-38, 425 S.E.2d at 85. 

 In this case, the trial court found that a reasonable 

inference could be drawn from the evidence that the bedroom where 

the drugs were discovered was Hayspell's. When Gibbs entered the 

home of Hayspell's parents, Hayspell and his mother were 

descending the staircase. In the bedroom at the top of the 

stairs, Gibbs found articles of men's clothing, shoes, and 

jewelry, including a class ring engraved with the name "Reginald" 

on the nightstand. The room also contained pictures of Hayspell 

and a folder of personal financial papers identified to him and 
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to his girlfriend, Kelly Gregory. Based upon all of the items 

found in the bedroom and described by Gibbs, we hold that it was 

reasonable for the fact finder to infer that the bedroom belonged 

to Hayspell. The fact finder could also reasonably infer that 

Hayspell had knowledge of the contents of the room he occupied 
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and that he exercised dominion and control over the items found 

within the room. His convictions are affirmed. 

Affirmed.