COURT OF APPEALS OF VIRGINIA

Present: Judg es Bray, Frank and Clements Argued at Ches apeake, Virginia

JARVIS DESHANON BROWN MEMORANDUM OPINION * BY v. Record No. 2361-00-1 JUDGE ROBERT P. FRANK NOVEMBER 6, 2001 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH Edward W. Hans on, Jr., Judge Janee D. Joslin (Davis & Pugh, on brief), for appellant. Stephen R. McCullou gh, Assistan t Attorney General (Randolp h A. Beales, Acting Attorney General, on brief), for appellee.

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. Jarvis Deshanon Br own (appellant ) was convicte d in a jury trial of possession with the intent to distribute mo re than five pounds of marijuana, in violatio n of Code § 18 .2-248.1. On appeal, he contends th e trial court er red in finding the evidence sufficient to conv ict. Finding no error, we affi rm the judgment of the trial court. BACKGROUND On April 26, 1999, John Casey, an empl oyee of the Family Motors car dealership, arrived at work and noticed a pa ckage in the office. When he op ened the package, he discovered inside thelarger package a shrink -wrapped package appr oximately th ree feet long that contai ned a large quanti ty of marijuan a. Two other inner boxes also contained mari juana. The in ner packages contained a comb ined total of over 100 poun ds of marijuana. Casey immediately to ld his manager to ca ll the police. In examining the ou tside of the package, Casey noticed that it originated in Cali fornia. The shipping receipt listed a phone number and a name, Li nda Nichols. Virginia Beach Poli ce Detectives Richar d Brereton and Terry Dugan responded to the call. Brereton call ed the teleph one number listed on the sh ipping receipt. He id entified himself as a fictional empl oyee of Family Motors na med "Bob" and explained he had received a package that was not for the de alership. No person named "Bob" work ed at the deal ership. Breret on had several conversations wi th the person in Cali fornia, who identified herself as Linda Nichol s. Eventually , Nichols told Brereton that an individual named Jarv is Brown would co me and claim th e package. Appellant appear ed at the deal ership that af ternoon. He asked for "Bob." Detective Dugan, playing the ro le of "Bob," walked with appe llant to a van where the dr ugs were stored. Dugan asked appellant if he knew what was in the box. Appellant initially stat ed "monitors or computers" and then said, "[N]aw, I'm just here to pick it up for Linda." Dugan told him the box co ntained mariju ana and asked appellant about co mpensation for his effort s. Appell ant denied

- 2 -any knowledge of the marijuana but expressed his willingness to make a telephone call to inquire if "Bob" co uld be compensated. The detective "s lid the box down to a point wh ere [appellant] could put his hand s on it." Appe llant then placed one hand on each side of the bo x and, in the words of Dugan, "he took possession of th e package." Dugan gave the "take do wn" signal, and appellant was arrested within seconds of his pl acing his hands on the package. After he was arre sted and given his Miranda rights, appellant gave the police a stat ement. He initially stated he was at the dealership to pick up microphones. He then stat ed that he was there to see "Bob," no t to pick up microp hones. Af ter some hesitation, he then claimed that he was there to pi ck up computer monitors, which the car dealersh ip had never sold. Appellant further stated th at he did not know what was in the package and that he was ther e to look at a computer. Appell ant said several times that he wo uld like to help the po lice, but "t hese guys" would kill him and his family. He also note d that he would find out who "set him up." Finally, he admitted that hi s friend, Rico, called him and asked him to pick up the package. Appellant stated, "Rico is a drug dealer. He sent me up th ere to pick up the package. I just didn't thin k the package was go ing to be that big." Appellant denied call ing California and sa id he did not know how anyone at th e packaging compan y knew his name.

- 3 -ANALYSIS Appellant conten ds the evidence was no t sufficient to prove that he knowingl y possessed, eith er actually or constructively, the marijuana. When considering the sufficiency of the evid ence on appeal in a criminal case, we vi ew the evidence in th e light most favorable to the Commonweal th, granting to it all reasonable inferences fairly deducibl e therefrom. See Higginbotham v. Commonwealth , 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975). "In so doing, we must '"discard the ev idence of the accused in conflict wi th that of the Commonwealth, an d regard as true all the credible evidence favorable to the Common wealth and all fair in ferences that may be drawn theref rom."'" Norman v. Commonwealth , 2 Va. App. 518, 520, 346 S.E.2d 44, 45 (1986) (quoting Parks v. Commonwealth , 221 Va. 492, 498, 270 S.E.2d 755, 759 (1 980) (quoting Wright v. Commonwealth , 196 Va. 132, 137, 82 S.E.2d 603, 606 (1954))). The trial court's judg ment will not be set as ide unless the judgment is plainly wrong or without evidence to support it. Josephs v. Commonwealth , 10 Va. App. 87, 99, 390 S.E.2d 491, 497 (1990) ( en banc ). Possession of a co ntrolled substance may be actual or constructive. See Archer v. Commonwealth , 225 Va. 416, 418, 303 S.E.2d 863, 86 3 (1983). To support a convic tion based upon constructive possession , "the Commonwealth must point to evidence of acts, statements, - 4 -or conduct of the accu sed or other facts or circumstances wh ich tend to sh ow that the defendant was aw are of both th e presence and character of the substa nce and that it was subject to his domini on and control." Drew v. Co mmonwealth , 230 Va. 471, 47 3, 338 S.E.2d 84 4, 845 (1986) (quoting Powers v. Commonwealth , 227 Va. 474, 476, 316 S.E.2d 739, 740 (1984)). See Eckhart v. Commonwealth , 222 Va. 447, 450, 281 S.E.2d 853, 855 (1981). Proof by circumstantial evidence "'is not suffic ient . . . if it engenders only a su spicion or even a prob ability of guilt.'" Littlejohn v. Commonwealth , 24 Va. App. 401, 41 4, 482 S.E.2d 853, 859 (1997) (quoting Hyde v. Co mmonwealth , 217 Va. 950, 955, 234 S.E.2d 74, 78 (197 7)). "'"All necessary ci rcumstances pr oved must be consistent with guilt and incons istent with innocence and exclude every re asonable hypothesis of innocence."'" Betancourt v. Commonwealth , 26 Va. App. 363, 373, 494 S.E.2d 873, 878 (1998) (quoting Stover v. Commonwealth , 222 Va. 618, 623, 283 S.E.2d 194, 196 (1981) (quoting Inge v. Co mmonwealth , 217 Va. 360, 366, 228 S.E.2d 563, 567 (1976))). "When, from the circum stantial evidence, 'it is just as likely, if not more likely,' that a 'reasonable hypo thesis of inno cence' explains the accused's conduct, the evidence ca nnot be said to rise to the level of proof beyond a reasonable doubt." Littlejohn , 24 Va. App. at 414, 482 S.E.2d at 85 9 (quoting Haywood v. Commonwealth , 20 Va. App. 562, 567-68, 458 S.E.2d 606, 609 (1995)). The Commonwe alth need not "'exclude every po ssible theory or surmise, '" but it must exclude

- 5 -those hypotheses "'which flow from th e evidence itself.'" Cantrell v. Commonwealth , 7 Va. App. 269, 289- 90, 373 S.E.2d 328, 338-39 (1988) (quoting Black v. Commonwealth , 222 Va. 838, 841, 284 S.E.2d 608, 609 (1981)). Our inquiry, therefor e, is whether appellant was aware of the presence and character of the marijuana foun d in the package and whether he exercised do minion and control over the packaged drugs. We first examine the information th at appellant had concerning the shipment of drugs. Appellant knew the drugs were shipped by Nichols. He was aware of th e phone conv ersation between Brereton and Nichols beca use he asked for "Bob" when he arrived at the car de alership. The detect ive had give n Nichols the fictitious name of "Bob" when he spoke to her. From the various phon e calls, the detectiv e knew that someone named Jarvis Brown woul d arrive to pick up the package. While appellant denied any knowledge of the drugs, he volunteered to make a telephone call to inquire if "Bob" wo uld be compensated. The fact finder could properly infer that ap pellant was in contact with the source of the marijuana. When appellant wa s advised that the package co ntained marijuana, he ne vertheless put his hands on each side of the package. He did not re treat or disclaim the package. His actions were consistent with one who went to the dealership intending to pick up th e marijuana.

- 6 -Appellant gave several contra dictory explanat ions for his presence at the dealership. Initially, he said he wa s there to pick up a microp hone, then a computer mo nitor. Ulti mately, he said he was sent there by a drug dealer to pick up a package but claimed he was surpri sed the package was "that big." The trial court was entitled to infer that he wa s lying to conceal his guilt. See Black , 222 Va. at 842, 28 4 S.E.2d at 610. Further, appellant ex pressed concern that if he assisted the police, "these guys" wo uld kill him and his fa mily. This concern about retaliatio n belies his claim that he did not know the contents of the package. From the evidence, the fact finder co uld conclude that appellant had been in contact with Nichols, who originally shipped the drugs, and that ap pellant was sent to the dealer ship to pick up the package. The fact finder also coul d infer, since appellant was in a position to discuss compensa tion with Nichols, he was intimately connected withthe drug operation. While appellan t contends he did not exercise dominion and control over the mariju ana, the facts do not support his position. The undercover detectiv e slid the package to where appell ant could retrieve it. Appell ant, after being toldthat the package contained mariju ana, placed one ha nd on each side of the box. The detective characterized appell ant's actions as "[taking] possession of the package."

- 7 -Possession need not be actual, excl usive, or leng thy in order to support a convicti on; instead, the st atute crim inalizes constructive or joint possessi on of illegal drugs for any duration. See Gillis v. Commonwealth , 215 Va. 298, 302, 208 S.E.2d 768, 771 (1974); Josephs , 10 Va. App. at 99, 390 S.E.2d at 497. The trial court co uld reasonably in fer that, but for appellant's ar rest within second s of his placing his hands on the package, he woul d have picked up the pa ckage and left with it. Here, the eviden ce was sufficient beyond a reasonable doubt that appellant was guilty of the of fense. We affi rm the judgment of the trial court. Affirmed.

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