COURT OF APPEALS OF VIRGINIA Present: Chief Judge Fe lton, Judges Elder and Kelsey Argued at Chesapeake, Virginia SCOTTIE SMITH, S/K/A SCOTTIE JOVAWN SMITH MEMORANDUM OPINION * BY v. Record No. 0337-07-1 JUDGE D. ARTHUR KELSEY APRIL 8, 2008 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF SUFFOLK Rodham T. Delk, Jr., Judge L. Wayne Farmer (Saunders Barlow Riddick Babineau, PC, on brief), for appellant. Josephine F. Whalen, Assistan t Attorney General II (Robert F. McDonnell, Attorney Genera l, on brief), for appellee.

Convicted of possession of cocaine, Scottie Jovawn Smith challenges on appeal the sufficiency of the evidence against him. Findi ng the evidence sufficient, we affirm Smith’s conviction.
I. Under settled principles, we review the evid ence in the “light most favorable” to the Commonwealth. Commonwealth v. Hudson , 265 Va. 505, 514, 578 S.E.2d 781, 786 (2003). That principle requires us to “discard the eviden ce of the accused in conf lict with that of the Commonwealth, and regard as true all the credible evidence favorable to the Commonwealth and all fair inferences to be drawn therefrom.” Parks v. Commonwealth , 221 Va. 492, 498, 270 S.E.2d 755, 759 (1980) (emphasis and citation omitted). So viewed, the evidence established th at Officer Adam Brown stopped a vehicle suspecting it was improperly registered. The license plate was attached with “zip ties,” and the

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.- 2 - license plate number was register ed to a different vehicle. The driver, Smith, was alone in the vehicle. When the officer walked up to the driv er’s side window, Smith appeared very nervous and was sweating as the officer spoke to him. Smith’s demeanor worried the officer enough to immediately call for assistance from other police officers in the ar ea. Backup arrived as Officer Brown ran Smith’s license and registration through the computer. Smith waited outside his vehicle. Officer Brown and Sergeant Ronald Kline retu rned to the driver’s side window of the vehicle. The window was rolled up about two in ches. Wedged between the door and the black weather stripping — plainly visibl e to both officers standing outside the vehicle — was a corner of a plastic baggie containing a wh ite substance that both officers believed to be crack cocaine. The baggie of suspected cocaine was less than a f oot from where Smith had been seated in the driver’s seat. Officer Brown removed the bag wi thout effort. “The majority of the bag,” he testified, was outside the pinched area between th e weather stripping and the glass. “[I]t was not tucked down in there hardly at all,” Officer Brown explained. The officers arrested Smith for possession of co caine. Forensic testing demonstrated that the white substance in the baggie was in fact crac k cocaine. At his bench trial, Smith’s girlfriend took the stand in his defense. She claimed to have purchased the vehicle from an unidentified friend about two weeks before Smith’s arrest. On the day of his arrest, th e vehicle was parked in Smith’s yard. Smith “had the car” while she was at work, she stated. Sitting as factfinder, the tr ial court found the evidence sufficient and convicted Smith of possession of cocaine in violation of Code § 18.2-250. Smith appeals to us claiming the trial court erred as a matter of law in finding the ev idence sufficient and in failing to dismiss the charge as factually insupportable.- 3 - II. When addressing the sufficiency of the eviden ce, we “‘presume the judgment of the trial court to be correct’ and reverse only if the tria l court’s decision is ‘p lainly wrong or without evidence to support it.’” Kelly v. Commonwealth , 41 Va. App. 250, 257, 584 S.E.2d 444, 447 (2003) ( en banc ) (citations omitted); see also Haskins v. Commonwealth , 44 Va. App. 1, 7, 602 S.E.2d 402, 405 (2004) (citation omitted). A revi ewing court, however, does not “ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.” Bolden v. Commonwealth , 49 Va. App. 285, 292, 640 S.E.2d 526, 530 (2007) (citation omitted), aff’d , 275 Va. 144, 654 S.E.2d 584 (2008). Instead, the issue on appeal is whether “ any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id. (quoting Haskins , 44 Va. App. at 7-8, 602 S.E.2d at 405 (emphasis in original)); see also Hoambrecker v. City of Lynchburg , 13 Va. App. 511, 514, 412 S.E.2d 729, 731 (1992). “This fa miliar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Barnes v. Commonwealth , 47 Va. App. 105, 110 n.1, 622 S.E.2d 278, 280 n.1 (2005) (citation omitted). “It also ensures that we remain faithful to ‘our duty not to substitute our judgment for that of the trier of fact, even were our opinion to differ.’” Id. (citation omitted). Under Code § 18.2-248, constructive possessi on of drugs can be shown by “acts, statements, or conduct of the accused or other fact s or circumstances which tend to show that the accused was aware of both the presence and characte r of the substance and that it was subject to his dominion and control.” Haskins , 44 Va. App. at 6, 602 S.E.2d at 404 (citations omitted). As has been often said, “in drug cases no less than a ny other, it ‘is axiomatic that any fact that can- 4 - be proved by direct evidence may be proved by circumstantial evidence.’” Id. (quoting Etherton
v. Doe , 268 Va. 209, 212-13, 597 S.E.2d 87, 89 (2004)). While, standing alone, “mere proximity to th e contraband is insufficient to establish possession, it is a factor that may be considered” in determining whether the accused constructively possessed drugs. Kelly , 41 Va. App. at 261, 584 S.E.2d at 449 (citation omitted). Likewise, a factfinder may also ta ke into account the open visibil ity of the drugs as well as the defendant’s occupancy of the place where the drugs are found. See Brown v. Commonwealth , 15 Va. App. 1, 9-10, 421 S.E.2d 877, 883 (1992) ( en banc ) (holding that the factfinder could consider that drugs were found “ on the dashboard in plain view”); Haskins , 44 Va. App. at 9-10, 602 S.E.2d at 406 (noting that the bag of cocaine “was in plain view”). 1 “While no single piece of evidence may be sufficient, the ‘combi ned force of many concurrent and related circumstances, each insufficient in itself, ma y lead a reasonable mind irresistibly to a conclusion.’” Harper v. Commonwealth , 49 Va. App. 517, 521-22, 642 S.E.2d 779, 781 (2007) (citation omitted). In this case, we have no difficulty confir ming the sufficiency of the evidence against Smith. When the officer stopped him, Smith appeared visibly nervous and sweating. See generally Lane v. Commonwealth , 223 Va. 713, 716, 292 S.E.2d 358, 360 (1982) (taking into account, for sufficiency purposes, the defendant’s “nervous” respons e while being questioned in

1 See also Lane v. Commonwealth , 223 Va. 713, 716, 292 S.E.2d 358, 360 (1982) (finding relevant the defendant’s proximity to the drugs along with her “occupancy of the premises”); Eckhart v. Commonwealth , 222 Va. 447, 451, 281 S.E.2d 853, 855 (1981) (taking into account that the drugs were “visible” to the defendant); Womack v. Commonwealth , 220 Va. 5, 8, 255 S.E.2d 351, 353 (1979) ( per curiam ) (finding constructive possession, in part, based upon the “visibility of the drugs”); Copeland v. Commonwealth , 42 Va. App. 424, 440, 592 S.E.2d 391, 398 (2004) (noting that cocaine was “in plain view”); Archer v. Commonwealth , 26 Va. App. 1, 12, 492 S.E.2d 826, 832 (1997) (stating that “proximity to the contraband” and “occupancy of the premises” provide probati ve evidence of cons tructive possession); Harmon v. Commonwealth , 15 Va. App. 440, 446-47, 425 S.E.2d 77, 81 (1992) (finding relevant that drugs were “partially in plain view”).- 5 - close proximity to drugs); Kelly , 41 Va. App. at 260-61, 584 S.E.2d at 449 (finding relevant that the defendant “appeared nervous during the encounter with the officer”). 2 The baggie, moreover, was only slightly wedged between the window and the weather stripping. It took almost no effort for the officer to pull it out. The baggie had been barely tucked into a window less than two inches from being fully open. Smith was the only occupant of the vehicle, which had been purchased about two weeks earlier. Give n these facts, we cann ot say the trial court plainly erred in finding Smith guilty of possessing this baggie of cocaine. We acknowledge Smith’s rejoinder that some one else could have put the baggie of cocaine there. The factfinder, however, was not obliged to believe that some unidentified person slightly squeezed a baggie of cocaine into a barely open window frame of someone else’s vehicle. Nothing in the record suggests as much. And the Commonwea lth “is not required to prove that there is no possibility that someone else may have planted, discarded, abandoned or placed the contraband where the contraband is discovered.” Kromer v. Commonwealth , 45 Va. App. 812, 819, 613 S.E.2d 871, 875 (2005) (citation and brackets omitted); see also Kelly , 41 Va. App. at 260-61, 584 S.E.2d at 449. To be sure, the testimony of Smith’s girl friend rendered Smith’s hypothesis of innocence particularly unpersuasive. She purchased the vehi cle a couple weeks earlier. It is fanciful to believe the seller sweetened the deal with a baggi e of cocaine so carefully wedged in a barely open widow, or that the baggie would remain in th at same window for two weeks, or that Smith (who had exclusive use of the ve hicle the entire day of his arre st) never knowingly exercised

2 That Smith had other reasons for nervousne ss (like driving an improperly registered vehicle while having a suspended license) should be considered by the factfinder. That does not mean, however, the factfinder cannot also view Smith’s worrisome demeanor to implicate his guilty conscience for possessing a baggie of cocaine. As we have said in an analogous situation, “while appellant’s flight might have been attrib utable to several causes, ‘consciousness of guilt’ could be inferred by the trial court if any one of those causes was the instant offense.” Ricks v. Commonwealth , 39 Va. App. 330, 337, 573 S.E.2d 266, 269 (2002); see also Leonard v. Commonwealth , 39 Va. App. 134, 149, 571 S.E.2d 306, 314 (2002).- 6 - dominion and control over it. Such hypotheses rely more on the “imagination of defense counsel” rather than any sp ecific evidentiary support, Walker v. Commonwealth , 42 Va. App. 782, 793, 595 S.E.2d 30, 35 (2004), and could have been rejected by the factfi nder in any event, Haskins , 44 Va. App. at 8-10, 602 S.E.2d at 405-06 (cha racterizing the reas onableness of the hypothesis of innocence as a quest ion of fact subject to defe rential appellate review). As for Smith’s broader thesis that the Common wealth’s case is really nothing more than supposition, we must respectfully disagree. It is true the line between supposition and proof sometimes blurs, but like everythi ng else it depends on where the li ne is initially drawn. The burden of proof in criminal cases, however, is no t irrefutable certitude or the absence of every ephemeral possibility of doubt — it is proof beyond a reasonable doubt. “Anything is possible,” as Judge Posner has observed, “but a merely meta physical doubt . . . is no t a reasonable doubt for purposes of the criminal law. If it were, no one could be convicted.” United States v. Ytem , 255 F.3d 394, 397 (7th Cir. 2001) (citations omitted).
III. Because the trial court did not err in fi nding Smith guilty of possession of cocaine, we affirm his conviction.

Affirmed.