COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Willis and Annunziata 

Argued at Richmond, Virginia 

ROBERT WESLEY DEANS, JR. 

 MEMORANDUM OPINION* BY 

v. Record No. 1881-96-2 JUDGE ROSEMARIE ANNUNZIATA 

 FEBRUARY 24, 1998 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY 

Herbert C. Gill, Jr., Judge 

 John H. Click, Jr. (White, Blackburn & Conte, 

P.C., on brief), for appellant. 

 Daniel J. Munroe, Assistant Attorney General 

(Richard Cullen, Attorney General, on brief), 

for appellee. 

 Robert Wesley Deans, Jr. (appellant) appeals his conviction 

for possession of marijuana in a county jail on the basis that 

the evidence presented at trial was insufficient to prove his 

guilt beyond a reasonable doubt. We agree and reverse his 

conviction. 

 On October 28, 1995, Chesterfield County deputies conducted 

a search of the Chesterfield County Jail dormitory in which 

appellant was housed. The deputies ordered the inmates into the 

center of the room and then removed them from the dorm. 

Appellant occupied the bottom bunk of a bunk bed. Deputy Brian 

Michaels, the Commonwealth's only witness, searched appellant's 

bed and the area surrounding the bed. Underneath appellant's bed 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
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were two jail-issued plastic tubs which inmates used to store 

their personal belongings. In one of the tubs, Michaels 

discovered two paper bags, one of which contained plastic bags of 

tortilla and potato chips. 

 Michaels checked each of the plastic bags of chips, and 

noticed that one of the bags had been resealed with a black putty 

substance and that it contained two balloons. Michaels opened 

the balloons; he believed that one balloon contained marijuana 

and that the other balloon contained a mixture of tobacco and 

marijuana. Michaels testified that he returned the paper bags to 

the plastic tub. Deputy Cardelino testified, however, that the 

bags and contents of both inmates' plastic tubs were placed on 

the bunk bed. When the inmates returned to the dorm, Michaels 

told appellant and the occupant of the top bunk to gather their 

personal belongings. Appellant gathered his possessions, and 

picked up the paper bag which contained the altered chip bag. 

Michaels then left the room. Subsequent testing confirmed that 

each of the balloons contained marijuana. 

 At trial, appellant presented the testimony of another 

inmate, James Davis, who testified that he, appellant, and a 

third inmate routinely kept items in the same bags to avoid theft 

by other inmates. Davis testified that the marijuana was his and 

that he had pled guilty to its possession. He testified that he 

had placed the marijuana in the paper bag earlier in the day of 

the search. The Commonwealth impeached Davis as a convicted 
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felon on cross-examination. 

 On appeal, this Court reviews the evidence "'in the light 

most favorable to the Commonwealth and accord to the evidence all 

reasonable inferences fairly deducible therefrom.'" Phoung v. 

Commonwealth, 15 Va. App. 457, 460, 424 S.E.2d 712, 714 (1992) 

(quoting Traverso v. Commonwealth, 6 Va. App. 172, 176, 366 

S.E.2d 719, 721 (1988)). A jury's verdict "shall not be set 

aside unless it appears from the evidence that such judgment is 

plainly wrong or without evidence to support it." Code 

§ 8.01-680; Phoung, 15 Va. App. at 460, 424 S.E.2d at 714 

(quoting Traverso, 6 Va. App. at 176, 366 S.E.2d at 721). The 

credibility of witnesses, the weight accorded the testimony of 

witnesses, and the inferences to be drawn from proven facts are 

questions within the province of the jury. Spivey v. 

Commonwealth, 23 Va. App. 715, 724, 479 S.E.2d 543, 548 (1997) 

(citing Long v. Commonwealth, 8 Va. App. 194, 199, 379 S.E.2d 

473, 476 (1989)). 

 Possession of a controlled substance may be either actual or 

constructive. McGee v. Commonwealth, 4 Va. App. 317, 322, 357 

S.E.2d 738, 740 (1987) (citing Archer v. Commonwealth, 225 Va. 

416, 418, 303 S.E.2d 863, 863 (1983)). To support a conviction 

for constructive possession on appeal, "the Commonwealth must 

point to evidence of acts, statements, or conduct of the accused 

or other facts and circumstances which tend to show that the 

defendant was aware of both the presence and character of the 
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substance and that it was subject to his dominion and control." 

Powers v. Commonwealth, 227 Va. 474, 476, 316 S.E.2d 739, 740 

(1984) (citing Eckhart v. Commonwealth, 222 Va. 447, 450, 281 

S.E.2d 853, 855 (1981)). The Commonwealth may show possession of 

the controlled substance through circumstantial evidence provided 

the evidence "excludes every reasonable hypothesis of innocence." 

Spivey, 23 Va. App. at 724, 479 S.E.2d at 548 (citing, inter

alia, Tucker v. Commonwealth, 18 Va. App. 141, 143, 442 S.E.2d 

419, 420 (1994)). 

 The Commonwealth, relying upon the theory of constructive 

possession, points to three pieces of evidence in support of 

appellant's knowledge of the marijuana. 

 First, the Commonwealth points to the fact that, when told 

to gather his belongings, appellant took the paper bag containing 

the marijuana enclosed in the plastic chip bag. This evidence 

does not demonstrate, however, that appellant knew of the 

"presence and character" of the marijuana which the bag had 

contained. Appellant's knowing possession of the paper bag does 

not establish that he knew that the paper bag contained the chip 

bag in question, much less that the chip bag contained marijuana. 

 Second, the Commonwealth argues that the proximity of the 

marijuana to appellant's bunk supports the conclusion that he 

knowingly possessed the controlled substance. "While proximity 

to a controlled substance is insufficient alone to establish 

possession, it is a factor to consider when determining whether 
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the accused constructively possessed drugs." Brown v. 

Commonwealth, 15 Va. App. 1, 9, 421 S.E.2d 877, 882 (1992) (en

banc) (citing Lane v. Commonwealth, 223 Va. 713, 716, 292 S.E.2d 

358, 360 (1982)). Thus, the proximity of the marijuana to 

appellant's bunk is some, but not sufficient, evidence of his 

knowledge of the contraband. 

 Finally, the Commonwealth contends that the evidence was 

sufficient to convict appellant because Davis' testimony was not 

credible, and the jury could choose to disregard it. Davis 

testified that he, appellant, and a third inmate kept their chips 

in a single paper bag to avoid theft by other inmates. Davis 

further testified that he had placed the chip bag containing 

marijuana in the paper bag earlier that day. Davis was impeached 

as a convicted felon. See, e.g., Doss v. Commonwealth, 23 Va. 

App. 679, 685, 479 S.E.2d 92, 95 (1996). Assuming without 

deciding that the jury concluded that Davis lied to conceal 

appellant's guilt, see Speight v. Commonwealth, 4 Va. App. 83, 

88, 354 S.E.2d 95, 98 (1987) (en banc) (citing Carter v. 

Commonwealth, 223 Va. 528, 532, 290 S.E.2d 865, 867 (1982)), that 

credibility determination is not sufficient to exclude the 

reasonable hypothesis that appellant had no knowledge of the 

contraband concealed in the bag he picked up when directed to 

gather his belongings. See Stover v. Commonwealth, 222 Va. 618, 

624, 283 S.E.2d 194, 196 (1981); Tucker, 18 Va. App. at 144, 442 

S.E.2d at 421. 
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 Accordingly, we find the evidence insufficient to sustain 

the appellant's conviction beyond a reasonable doubt and reverse. 

See, e.g., Burchette v. Commonwealth, 15 Va. App. 432, 435-36, 

425 S.E.2d 81, 84 (1992); Hairston v. Commonwealth, 5 Va. App. 

183, 186-87, 360 S.E.2d 893, 895 (1987). 

 Reversed and dismissed.