PRESENT: Carrico, C.J., Compton, Lacy, Hassell, Keenan, and 

Koontz, JJ., and Stephenson, Senior Justice 

ERIC COOPER WALTON 

 OPINION BY 

v. Record No. 971369 SENIOR JUSTICE ROSCOE B. STEPHENSON, JR. 

 February 27, 1998 

COMMONWEALTH OF VIRGINIA 

FROM THE COURT OF APPEALS OF VIRGINIA 

 The issues presented in this appeal are (1) whether the 

evidence is sufficient to convict the defendant of possession of 

marijuana and, if so, (2) whether the suspension of the 

defendant’s driver’s license pursuant to Code § 18.2-259.1 

violates his constitutional right to due process. 

I 

 On January 18, 1996, following a bench trial, the Circuit 

Court of the City of Salem convicted Eric Cooper Walton of 

possession of marijuana, in violation of Code § 18.2-250.1. The 

court sentenced Walton to 30 days in jail, with all but four 

days suspended, and fined him $200. Pursuant to Code § 18.2-

259.1, Walton’s privilege to operate a motor vehicle was 

suspended for a period of six months.1

 Walton appealed the judgment of conviction and the license 

suspension to the Court of Appeals, presenting, inter alia, the 

 

1 Pursuant to subsection (C) of Code § 18.2-259.1, the trial 

court permitted Walton to be issued a restricted license for the 

purpose of traveling to and from his place of employment. 
two issues presented here. The Court of Appeals denied the 

appeal challenging the sufficiency of the evidence of possession 

of marijuana, but awarded the appeal challenging the license 

suspension. Thereafter, the Court of Appeals affirmed the trial 

court’s suspension of Walton’s operator’s license. Walton v. 

Commonwealth, 24 Va. App. 757, 485 S.E.2d 641 (1997). We 

awarded Walton this appeal on both issues. 

II 

 On September 12, 1995, in the City of Salem, Detective W.W. 

Young executed a search warrant at the mobile home of Walton and 

his wife. The warrant authorized a search for marijuana and all 

items associated with its use and cultivation. 

 Young found a large marijuana plant growing in a small 

flower bed immediately adjacent to the steps to the door of the 

home. Unlike all other plants in the bed, the marijuana plant 

recently had been watered. Young also found a large metal tray 

under a couch in Walton’s living room. The tray contained a set 

of hemostats, a package of rolling papers, and a small quantity 

of plant material. A subsequent laboratory analysis proved that 

the plant material was .02 of an ounce of marijuana, “enough to 

make a cigarette.” 

 During the search, Walton volunteered several statements to 

Detective Young. Walton stated that he was not a drug dealer; 

rather, he was “just a guy who smokes a little marijuana and 

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works hard for a living.” Walton also told Young that he had 

planted the flower bed but that he could not account for the 

planting of the marijuana. While the detective was searching 

through a package of cigarettes that had been on the metal tray, 

Walton said, “[t]here’s no joints in there. I smoked the last 

one just before you got [here].” 

 At trial, Walton testified that he had been smoking 

marijuana since 1969. He said that, at times, friends would 

come to his home and smoke marijuana with him. The friends 

would bring their own marijuana and take with them the 

remainder. He stated that, “every time [he] rolled marijuana 

into cigarettes, [he] either used [the metal] tray or a 

newspaper or a magazine or whatever,” and then he threw the 

residue in the trash. 

 Walton further testified that he never had grown marijuana, 

he did not know what marijuana plants looked like, and he did 

not know that the large plant in the flower bed was marijuana. 

He conceded that he previously had been convicted of two 

felonies and of two or three misdemeanors involving moral 

turpitude. 

III 

 First, we determine whether the evidence is sufficient to 

support the trial court’s finding that Walton knowingly or 

intentionally possessed marijuana. When the sufficiency of the 

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evidence in a criminal case is challenged on appeal, we must 

view the evidence and all reasonable inferences fairly deducible 

therefrom in the light most favorable to the Commonwealth. 

Dukes v. Commonwealth, 227 Va. 119, 122, 313 S.E.2d 382, 383 

(1984). Great deference must be given to the factfinder who, 

having seen and heard the witnesses, assesses their credibility 

and weighs their testimony. Saunders v. Commonwealth, 242 Va. 

107, 113, 406 S.E.2d 39, 42, cert. denied, 502 U.S. 944 (1991). 

Thus, a trial court’s judgment will not be disturbed on appeal 

unless it is plainly wrong or without evidence to support it. 

Code § 8.01-680; Dukes, 227 Va. at 122, 313 S.E.2d at 383. 

 In order to convict a person of illegal possession of an 

illicit drug, the Commonwealth must prove beyond a reasonable 

doubt that the accused was aware of the presence and character 

of the drug and that the accused consciously possessed it. 

Andrews v. Commonwealth, 216 Va. 179, 182, 217 S.E.2d 812, 814 

(1975). An accused’s mere proximity to an illicit drug, 

however, is not sufficient to prove possession. Drew v. 

Commonwealth, 230 Va. 471, 473, 338 S.E.2d 844, 845 (1986). In 

addition, ownership or occupancy of the premises where the drug 

is found does not create a presumption of possession. Code § 

18.2-250.1(A); Garland v. Commonwealth, 225 Va. 182, 184, 300 

S.E.2d 783, 784 (1983). Nonetheless, these factors may be 

considered in deciding whether an accused possessed the drug. 

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Lane v. Commonwealth, 223 Va. 713, 716, 292 S.E.2d 358, 360 

(1982). 

 Additionally, proof of actual possession is not required; 

proof of constructive possession will suffice. Constructive 

possession may be established when there are “‘acts, statements, 

or conduct of the accused or other facts or circumstances which 

tend to show that the [accused] was aware of both the presence 

and character of the substance and that it was subject to his 

dominion and control.’” Drew, 230 Va. at 473, 338 S.E.2d at 845 

(quoting Powers v. Commonwealth, 227 Va. 474, 476, 316 S.E.2d 

739, 740 (1984)). 

 In the present case, the police found a marijuana plant 

growing near the entrance to Walton’s house. The plant was in a 

flower bed that Walton had planted, and it was the only plant in 

the flower bed that had been watered recently. Beneath a couch 

in Walton’s home, the police found a large metal tray containing 

hemostats, rolling paper, and enough marijuana to roll a 

cigarette. Walton, a longtime smoker of marijuana, sometimes 

used the metal tray when he rolled marijuana cigarettes. In 

fact, Walton had smoked a “joint” just before the police arrived 

at his home. 

 Viewing the evidence and all reasonable inferences flowing 

therefrom in the light most favorable to the Commonwealth and 

affording the factfinder the deference to which it is entitled, 

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we conclude that the evidence fully supports the trial court’s 

finding that Walton knowingly and intentionally possessed 

marijuana. This conclusion is supported by all the facts and 

circumstances proven, including Walton’s acts, statements, and 

conduct. 

IV 

 Next, we determine whether the suspension of Walton’s 

driver’s license violates his constitutional right to due 

process. Code § 18.2-259.1 provides, in pertinent part, that a 

judgment of conviction of a drug offense “shall . . . operate to 

deprive the person so convicted . . . of the privilege to drive 

or operate a motor vehicle . . . in the Commonwealth for a 

period of six months.” Walton contends that the suspension of 

his driver’s license upon his conviction of possession of 

marijuana violates his substantive due process rights under the 

Fourteenth Amendment to the United States Constitution and under 

Article I, Section 11 of the Virginia Constitution.2

 

2

 Walton also contends that the statute violates the 

proscription against cruel and unusual punishment contained in 

the Eighth Amendment to the United States Constitution. The 

Court of Appeals, applying its Rule 5A:18, refused to consider 

this contention, ruling that the argument had not been made in 

the trial court. Walton, 24 Va. App. at 761, 485 S.E.2d at 643. 

The record shows that this argument was not made at trial, and, 

therefore, we will affirm this ruling of the Court of Appeals. 

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 All legislation is presumed to be constitutional, and, 

therefore, the party attacking the legislation has the burden of 

proving that it is unconstitutional. Riddleberger v. Chesapeake 

Railway, 229 Va. 213, 215, 327 S.E.2d 663, 664 (1985). Any 

reasonable doubt whether a statute is constitutional shall be 

resolved in favor of its validity, and courts will declare a 

statute invalid only if it is plainly repugnant to some 

constitutional provision. Blue Cross v. Commonwealth, 221 Va. 

349, 358, 269 S.E.2d 827, 832 (1980). 

 Substantive due process tests the reasonableness of 

legislation vis-à-vis the General Assembly’s power to legislate. 

Etheridge v. Medical Center Hospitals, 237 Va. 87, 97, 376 

S.E.2d 525, 530 (1989); Duke v. County of Pulaski, 219 Va. 428, 

437-38, 247 S.E.2d 824, 829 (1978). Ordinarily, unless the 

legislation affects some fundamental constitutional right, 

substantive due process is satisfied if the legislation has a 

“reasonable relation to a proper purpose and [is] neither 

arbitrary nor discriminatory.” Duke, 219 Va. at 438, 247 S.E.2d 

at 829. This is the so-called “rational basis” test. 

 The right to operate a motor vehicle is a conditional 

privilege, which may be suspended or revoked in the interest of 

public safety under the police power of the Commonwealth. 

Commonwealth v. Ellett, 174 Va. 403, 414, 4 S.E.2d 762, 767 

(1939). It is not a fundamental constitutional right; however, 

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the right may not be revoked or suspended without due process of 

law. See Bell v. Burson, 402 U.S. 535, 539 (1971). Thus, 

whether legislation affecting that right satisfies substantive 

due process is determined by the application of the rational 

basis test. 

 Although Code § 18.2-259.1 mandates suspension of a 

driver’s license for a drug offense that does not involve the 

operation of a motor vehicle, it is reasonable to conclude that 

a purpose of the statute is to protect persons using the 

Commonwealth’s highways. As the Court of Appeals observed, the 

General Assembly “could reasonably assume that a person who 

possesses illegal substances would use those substances and 

could operate a motor vehicle while under the influence of [the] 

substances.” Walton, 24 Va. App. at 761, 485 S.E.2d at 643. We 

conclude, therefore, that the General Assembly, in enacting Code 

§ 18.2-259.1, acted in the interest of public safety. Resolving 

all reasonable doubt in favor of the statute’s validity, we hold 

that the statute satisfies the rational basis test for 

substantive due process. 

V 

 In sum, we hold that the evidence is sufficient to support 

Walton’s conviction of possession of marijuana and that the 

suspension of Walton’s driver’s license pursuant to Code § 18.2-

259.1 does not violate Walton’s substantive due process rights. 

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Accordingly, the judgment of the Court of Appeals will be 

affirmed. 

Affirmed. 

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