COURT OF APPEALS OF VIRGINIA 

Present: Judges Bray, Frank and Clements 

Argued at Chesapeake, 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. Hanson, Jr., Judge 

 Janee D. Joslin (Davis & Pugh, on brief), for 

appellant. 

 Stephen R. McCullough, Assistant Attorney 

General (Randolph A. Beales, Acting Attorney 

General, on brief), for appellee. 

 

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

designated for publication.

 Jarvis Deshanon Brown (appellant) was convicted in a jury 

trial of possession with the intent to distribute more than five 

pounds of marijuana, in violation of Code § 18.2-248.1. On 

appeal, he contends the trial court erred in finding the evidence 

sufficient to convict. Finding no error, we affirm the judgment 

of the trial court. 

BACKGROUND

 On April 26, 1999, John Casey, an employee of the Family 

Motors car dealership, arrived at work and noticed a package in 

the office. When he opened the package, he discovered inside the 
larger package a shrink-wrapped package approximately three feet 

long that contained a large quantity of marijuana. Two other 

inner boxes also contained marijuana. The inner packages 

contained a combined total of over 100 pounds of marijuana. Casey 

immediately told his manager to call the police. 

 In examining the outside of the package, Casey noticed that 

it originated in California. The shipping receipt listed a phone 

number and a name, Linda Nichols. 

 Virginia Beach Police Detectives Richard Brereton and Terry 

Dugan responded to the call. Brereton called the telephone number 

listed on the shipping receipt. He identified himself as a 

fictional employee of Family Motors named "Bob" and explained he 

had received a package that was not for the dealership. No person 

named "Bob" worked at the dealership. Brereton had several 

conversations with the person in California, who identified 

herself as Linda Nichols. Eventually, Nichols told Brereton that 

an individual named Jarvis Brown would come and claim the package. 

 Appellant appeared at the dealership that afternoon. He 

asked for "Bob." Detective Dugan, playing the role of "Bob," 

walked with appellant to a van where the drugs were stored. Dugan 

asked appellant if he knew what was in the box. Appellant 

initially stated "monitors or computers" and then said, "[N]aw, 

I'm just here to pick it up for Linda." 

 Dugan told him the box contained marijuana and asked 

appellant about compensation for his efforts. Appellant denied 

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any knowledge of the marijuana but expressed his willingness to 

make a telephone call to inquire if "Bob" could be compensated. 

The detective "slid the box down to a point where [appellant] 

could put his hands on it." Appellant then placed one hand on 

each side of the box and, in the words of Dugan, "he took 

possession of the package." Dugan gave the "take down" signal, 

and appellant was arrested within seconds of his placing his hands 

on the package. 

 After he was arrested and given his Miranda rights, appellant 

gave the police a statement. He initially stated he was at the 

dealership to pick up microphones. He then stated that he was 

there to see "Bob," not to pick up microphones. After some 

hesitation, he then claimed that he was there to pick up computer 

monitors, which the car dealership had never sold. Appellant 

further stated that he did not know what was in the package and 

that he was there to look at a computer. Appellant said several 

times that he would like to help the police, but "these guys" 

would kill him and his family. He also noted that he would find 

out who "set him up." Finally, he admitted that his friend, Rico, 

called him and asked him to pick up the package. Appellant 

stated, "Rico is a drug dealer. He sent me up there to pick up 

the package. I just didn't think the package was going to be that 

big." 

 Appellant denied calling California and said he did not know 

how anyone at the packaging company knew his name. 

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ANALYSIS

 Appellant contends the evidence was not sufficient to prove 

that he knowingly possessed, either actually or constructively, 

the marijuana. 

 When considering the sufficiency of the evidence on appeal in 

a criminal case, we view the evidence in the 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). "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."'" 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 (1980) (quoting Wright v. 

Commonwealth, 196 Va. 132, 137, 82 S.E.2d 603, 606 (1954))). The 

trial court's judgment will not be set aside 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 controlled substance may be actual or 

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

S.E.2d 863, 863 (1983). 

To support a conviction based upon 

constructive possession, "the Commonwealth 

must point to evidence of acts, statements, 

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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)). See Eckhart v. Commonwealth, 222 Va. 447, 450, 281 

S.E.2d 853, 855 (1981). 

 Proof by circumstantial evidence "'is not sufficient . . . if 

it engenders only a suspicion or even a probability of guilt.'" 

Littlejohn v. Commonwealth, 24 Va. App. 401, 414, 482 S.E.2d 853, 

859 (1997) (quoting Hyde v. Commonwealth, 217 Va. 950, 955, 234 

S.E.2d 74, 78 (1977)). "'"All necessary circumstances proved must 

be consistent with guilt and inconsistent with innocence and 

exclude every reasonable 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. Commonwealth, 217 Va. 360, 366, 228 

S.E.2d 563, 567 (1976))). "When, from the circumstantial 

evidence, 'it is just as likely, if not more likely,' that a 

'reasonable hypothesis of innocence' explains the accused's 

conduct, the evidence cannot be said to rise to the level of proof 

beyond a reasonable doubt." Littlejohn, 24 Va. App. at 414, 482 

S.E.2d at 859 (quoting Haywood v. Commonwealth, 20 Va. App. 562, 

567-68, 458 S.E.2d 606, 609 (1995)). The Commonwealth need not 

"'exclude every possible theory or surmise,'" but it must exclude 

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those hypotheses "'which flow from the 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, therefore, is whether appellant was aware of the 

presence and character of the marijuana found in the package and 

whether he exercised dominion and control over the packaged drugs. 

 We first examine the information that appellant had 

concerning the shipment of drugs. Appellant knew the drugs were 

shipped by Nichols. He was aware of the phone conversation 

between Brereton and Nichols because he asked for "Bob" when he 

arrived at the car dealership. The detective had given Nichols 

the fictitious name of "Bob" when he spoke to her. 

 From the various phone calls, the detective knew that someone 

named Jarvis Brown would 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" would be compensated. 

The fact finder could properly infer that appellant was in contact 

with the source of the marijuana. 

 When appellant was advised that the package contained 

marijuana, he nevertheless put his hands on each side of the 

package. He did not retreat or disclaim the package. His actions 

were consistent with one who went to the dealership intending to 

pick up the marijuana. 

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 Appellant gave several contradictory explanations for his 

presence at the dealership. Initially, he said he was there to 

pick up a microphone, then a computer monitor. Ultimately, he 

said he was sent there by a drug dealer to pick up a package but 

claimed he was surprised the package was "that big." The trial 

court was entitled to infer that he was lying to conceal his 

guilt. See Black, 222 Va. at 842, 284 S.E.2d at 610. 

 Further, appellant expressed concern that if he assisted the 

police, "these guys" would kill him and his family. This concern 

about retaliation belies his claim that he did not know the 

contents of the package. 

 From the evidence, the fact finder could conclude that 

appellant had been in contact with Nichols, who originally shipped 

the drugs, and that appellant was sent to the dealership to pick 

up the package. The fact finder also could infer, since appellant 

was in a position to discuss compensation with Nichols, he was 

intimately connected with the drug operation. 

 While appellant contends he did not exercise dominion and 

control over the marijuana, the facts do not support his position. 

The undercover detective slid the package to where appellant could 

retrieve it. Appellant, after being told that the package 

contained marijuana, placed one hand on each side of the box. The 

detective characterized appellant's actions as "[taking] 

possession of the package." 

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 Possession need not be actual, exclusive, or lengthy in order 

to support a conviction; instead, the statute criminalizes 

constructive or joint possession 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 could reasonably infer that, but for 

appellant's arrest within seconds of his placing his hands on the 

package, he would have picked up the package and left with it. 

 Here, the evidence was sufficient beyond a reasonable doubt 

that appellant was guilty of the offense. We affirm the judgment 

of the trial court. 

 Affirmed.

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