Present: Hassell, C.J., Koontz, Kinser, Lemons, Agee, and 

Goodwyn, JJ., and Carrico, S.J. 

JAYSON FRANKLIN MAXWELL 

 OPINION BY 

v. Record No. 070831 SENIOR JUSTICE HARRY L. CARRICO 

 February 29, 2008 

COMMONWEALTH OF VIRGINIA 

FROM THE COURT OF APPEALS OF VIRGINIA 

 In a jury trial, the defendant, Jayson Franklin Maxwell, 

was convicted of possession of cocaine with intent to 

distribute, third or subsequent offense, in violation of Code 

§ 18.2-248, and possession of marijuana, in violation of Code 

§ 18.2-250.1. The jury fixed the defendant’s punishment at 

seven years in the penitentiary on the cocaine charge and thirty 

days in jail on the marijuana charge. The trial court imposed 

the sentences fixed by the jury and also imposed an additional 

one-year term suspended subject to post-release supervision 

pursuant to Code § 19.2-295.2. 

 In an unpublished opinion, a three-judge panel of the Court 

of Appeals, with one judge dissenting, reversed the defendant’s 

convictions. Maxwell v. Commonwealth, Record No. 2648-05-2 

(Nov. 21, 2006). Upon rehearing en banc, a majority of the 

court vacated the panel’s mandate and, by order, affirmed the 

trial court’s judgment for the reasons stated in the panel’s 

dissenting opinion. Maxwell v. Commonwealth, Record No. 2648-

05-2 (Apr. 3, 2007). We awarded the defendant this appeal. 

1
FACTUAL BACKGROUND

 Approximately 11:00 a.m. on March 25, 2003, Officer Bill 

Hogan of the Farmville Police Department, wearing plain clothes 

but displaying a badge, a sidearm, and handcuffs, drove in his 

unmarked vehicle to the Farmville Shopping Center, where, he had 

been told, he would find the defendant. Upon arrival at the 

shopping center, he found the defendant standing in front of 

“The Gym.” Officer Hogan told the defendant he wanted to talk 

to him about a check, and the two conversed briefly about that 

subject. 

 The defendant had his hands “down the front of his pants, 

not in his pockets, but actually down the front of his pants.” 

Concerned about “officer safety,” Officer Hogan asked the 

defendant to remove his hands from his pants. When the 

defendant refused to respond to the request, Officer Hogan told 

the defendant that they “needed to go to the police department 

and talk about” the check matter and that he, Hogan, “needed to 

check [the defendant] to see if he had anything on him, to pat 

him down.” The defendant backed up and said several times, “I 

ain’t got nothing on me,” whereupon, “[h]e ran.” 

 Officer Hogan pursued the defendant on foot for a short 

distance and then returned to his vehicle and drove down an 

alley behind the shopping center that bordered a lumberyard. He 

observed the defendant walk out from behind several stacks of 

2
plywood located between the alley and a chain-link fence that 

enclosed the lumberyard. Officer Hogan took the defendant into 

custody, put handcuffs on him, and placed him in the vehicle of 

State Trooper Sean Givens, who had responded to a call to report 

to the scene. The officers found $460.00 in cash on the 

defendant’s person, but no smoking device. 

 Officer Hogan conducted a search of the area. When he 

found nothing, he called for a “drug dog,” and Robert Leon 

Goldman, a “K-9 officer,” reported to the scene with his dog, 

Lily, about 11:15 a.m. Lily “alerted on” a lumber pallet and 

Goldman “reached in and got . . . a plastic bag” that contained 

“eight individually wrapped off-white rocklike substances.” 

Subsequent analysis determined that the rocklike substances in 

the plastic bag were crack cocaine. 

 Trooper Givens conversed with the defendant while the 

search was underway. At first, the defendant was “talkative and 

cooperative” but became “less talkative and distant” after the 

plastic bag was found. The trooper then transported the 

defendant to the police department for processing. 

 Coy R. Sams, an employee of the lumberyard, testified that 

he unloaded fourteen units of plywood from a tractor-trailer 

about 8:30 a.m. on March 25, 2003, and placed the stacks of 

plywood alongside the alley outside the fence that enclosed the 

lumberyard. Sams also said he spent the rest of the morning 

3
“going in and out of the warehouse and back and forth to the 

yard to retrieve products and materials for customers” and saw 

no one near the stacks of plywood. He admitted, however, that 

he was not “outside guarding the plywood the entire morning.” 

 Another lumberyard employee, Mac Robinson, Jr., testified 

that he and three to six other employees were around the 

warehouse and yard on March 25, 2003, filling orders for 

customers and that he saw no one near the plywood stacks all 

morning, although he was not near the stacks the entire time. 

Later in the day, Robinson used a forklift to move the stacks of 

plywood inside the fence where materials were “stored and 

secured.” He testified that after moving “the top” of one of 

the units, he returned “to pick the bottom unit up” and saw “two 

bags of stuff” on top of the plywood. He reported his find to 

Coy Sams and immediately went “back out and sat on the forklift 

. . . until authorities came.” 

 Officer Hogan arrived on the scene at 1:45 p.m. and took 

possession of the two bags. Subsequent analysis determined that 

one bag contained twelve individually wrapped bags of crack 

cocaine and the other bag contained marijuana. 

 A single latent fingerprint was found on the bag containing 

crack cocaine but subsequent analysis determined that it did not 

match the defendant’s fingerprints. A fingerprint expert 

testifying for the Commonwealth said “circumstances have to be 

4
just right for a print to be left on a particular surface” and 

“not everything that is touched can . . . develop a print.” 

Fingerprints are “very fragile in nature,” he stated, and may be 

destroyed “if you were to just wipe across [it] or if it comes 

into contact with your clothing or another item.” He also 

opined that “because there is no print of someone’s on [an 

object] doesn’t mean that person didn’t touch it.” 

 At the conclusion of the Commonwealth’s evidence and at the 

conclusion of all the evidence, the defendant moved to strike 

the evidence on the ground it was insufficient to show he 

possessed the drugs. The trial court denied both motions. 

 The defendant argues on appeal that the evidence was 

insufficient as a matter of law to show he possessed the drugs 

in question. The defendant contends that the Commonwealth’s 

case is based on circumstantial evidence, that the chain of 

circumstances is not unbroken, and that the evidence therefore 

is equally susceptible to an interpretation consistent with his 

innocence. 

 The Commonwealth responds that it was not required to prove 

actual possession of the drugs, but that proof of the 

defendant’s constructive possession was sufficient. The 

Commonwealth maintains that from the reasonable inferences which 

could be drawn from the facts, the jury could conclude that “the 

defendant was concealing the drugs at the time of his initial 

5
encounter with Officer Hogan, that [the defendant] fled from the 

officer to prevent the detection of the drugs, and that the 

defendant ran to the stacks of plywood in an effort to discard 

the contraband rather than risk its being found in his 

possession.” 

STANDARD OF REVIEW

 “We have held in many cases that, upon appellate review, 

the evidence and all reasonable inferences flowing therefrom 

must be viewed in the light most favorable to the prevailing 

party in the trial court.” Commonwealth v. Hudson, 265 Va. 505, 

514, 578 S.E.2d 781, 786 (2003). “The judgment of the trial 

court is presumed to be correct and will be reversed only upon a 

showing that it is plainly wrong or without evidence to support 

it.” Viney v. Commonwealth, 269 Va. 296, 299, 609 S.E.2d 26, 28 

(2005) (internal quotation marks and citation omitted). The 

issue upon appellate review is “whether, after viewing the 

evidence in the light most favorable to the prosecution, any

rational trier of fact could have found the essential elements 

of the crime beyond a reasonable doubt.” Jackson v. Virginia, 

443 U.S. 307, 319 (1979). 

 “To support a conviction based upon constructive possession 

[of drugs], the Commonwealth must point to evidence of acts, 

statements, or conduct of the accused or other facts or 

circumstances which tend to show that the defendant was aware of 

6
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) (internal quotation 

marks and citation omitted). When, as here, proof of 

constructive possession rests upon circumstantial evidence, “all 

necessary circumstances proved must be consistent with guilt and 

inconsistent with innocence and exclude every reasonable 

hypothesis of innocence.” Garland v. Commonwealth, 225 Va. 182, 

184, 300 S.E.2d 783, 784 (1983) (internal quotation marks and 

citation omitted). And “[w]hile a conviction may properly be 

based upon circumstantial evidence, . . . [t]here must be an 

unbroken chain of circumstances proving the guilt of the accused 

to the exclusion of any other rational hypothesis and to a moral 

certainty.” Gordon v. Commonwealth, 212 Va. 298, 300, 183 

S.E.2d 735, 737 (1971) (internal quotation marks and citation 

omitted). 

ANALYSIS

 Guided by the foregoing principles and after viewing the 

evidence in the light most favorable to the Commonwealth, we are 

of opinion that no “rational trier of fact could have found the 

essential elements of the crime[s involved in this case] beyond 

a reasonable doubt.” See Jackson, 443 U.S. at 319. The 

circumstantial evidence that the defendant kept his hands in his 

pants when initially contacted by Officer Hogan, ran from the 

7
scene when Hogan said he needed to pat him down, was seen 

walking between the stacks of plywood and the fence enclosing 

the lumber yard, and became less talkative and distant when 

drugs were found, may create suspicion, but it is not 

“consistent with guilt and inconsistent with innocence and [does 

not] exclude every reasonable hypothesis of innocence.” See

Garland, 225 Va. at 184, 300 S.E.2d at 784. Nor does it 

constitute “evidence of acts, statements, or conduct . . . or 

other facts or circumstances which tend to show that the 

defendant was aware of both the presence and character of the 

substance[s] and that [they were] subject to his dominion and 

control.” See Drew, 230 Va. at 473, 338 S.E.2d at 845. And it 

does not establish “an unbroken chain of circumstances proving 

the guilt of the [defendant].” See Gordon, 212 Va. at 300, 183 

S.E.2d at 737. 

 When Officer Hogan observed the defendant with his hands in 

his pants and told him he needed to pat him down, it was not 

because the officer thought the defendant was hiding drugs but 

because he feared the defendant might be concealing a weapon; 

Hogan testified he wanted the pat down for “officer safety.” 

When the defendant ran from Hogan, it could just as well have 

been because he did not want to be questioned further about the 

check matter rather than because he wanted to avoid being caught 

in possession of drugs. When he was seen walking between the 

8
stacks of plywood and the fence enclosing the lumberyard, he had 

nothing in his hands and was not acting furtively. And there is 

nothing especially incriminating in the circumstance that he 

became less talkative and distant when the first bag of drugs 

was found; indeed, it would have been surprising if his attitude 

had not changed upon that happening. 

 Nor is the Commonwealth’s case enhanced by the testimony of 

the two lumberyard employees that they saw no one around the 

stacks of plywood on the morning of March 25, 2003. They 

admitted they did not keep constant surveillance; indeed, 

neither one claimed to have seen the defendant when he obviously 

was present on the scene. Furthermore, the plywood was stacked 

in an unfenced area open to the public, along an alley available 

to vehicular and pedestrian traffic and serving as access to 

dwellings and commercial buildings, providing a situation in 

which anyone so inclined could readily have placed the drugs in 

the stacks of plywood undetected and, so far as the evidence is 

concerned, even before the defendant ever arrived on the scene. 

 While the defendant’s conduct may have been suspicious, no 

one ever saw him with the drugs, he never made any incriminating 

statements concerning the drugs, and the one fingerprint found 

on the plastic bag containing twelve rocks of crack cocaine was 

not his but someone else’s. All the Commonwealth is really left 

with, therefore, is evidence that the defendant was seen near 

9
the stacks of plywood where the drugs were found. But it was 

not shown that he was ever in such close proximity as would 

support a finding that he was aware of both the presence and the 

character of the drugs and that they were subject to his 

dominion and control. In any event, while proximity is a factor 

to be considered along with other evidence, mere proximity is 

not sufficient to prove possession, see Lane v. Commonwealth, 

223 Va. 713, 716, 292 S.E.2d 358, 360 (1982), and the utter lack 

of any other evidence connecting the defendant to the drugs 

creates a wide gap in the chain of circumstances that is fatal 

to the Commonwealth’s case. 

CONCLUSION

 For the foregoing reasons, we will reverse the judgment of 

the Court of Appeals and dismiss both indictments against the 

defendant. 

Reversed and dismissed. 

JUSTICE LEMONS, with whom JUSTICE KINSER joins, dissenting. 

 I respectfully dissent. 

“The issue upon appellate review is . . . whether a 

reasonable jury, upon consideration of all the evidence, could 

have rejected” defendant’s theories and found him guilty beyond 

a reasonable doubt. Commonwealth v. Hudson, 265 Va. 505, 513, 

578 S.E.2d 781, 785 (2003). The question is not whether we 

would reach the same conclusion, but whether the evidence is 

10
sufficient for the trier of fact to have so concluded. As the 

majority correctly notes, “this Court reviews the evidence in 

the light most favorable to the prevailing party at trial and 

considers any reasonable inferences from the facts proved. The 

judgment of the trial court will only be reversed upon a showing 

that it ‘is plainly wrong or without evidence to support it.’ ” 

Wilson v. Commonwealth, 272 Va. 19, 27, 630 S.E.2d 326, 330 

(2006) (quoting Code § 8.01-680). 

Although there was no direct evidence of Jayson Maxwell’s 

(“Maxwell”) possession of the drugs, constructive possession may 

be proved by circumstantial evidence, which is not viewed in 

isolation. Hudson, 265 Va. at 514, 578 S.E.2d at 786. “[T]he 

combined force of many concurrent and related circumstances, 

each insufficient in itself, may lead a reasonable mind 

irresistibly to a conclusion.” Id. (internal quotation marks 

and citation omitted). The jury heard all of the evidence in 

this case and found Maxwell guilty beyond a reasonable doubt. 

 The jury heard evidence that while questioning Maxwell 

“about another matter, about a check,” Officer Hogan observed 

Maxwell’s hands not in his pockets but “down the front of his 

pants.” When Officer Hogan asked Maxwell to remove his hands, 

he refused. Maxwell then repeatedly stated “I ain’t got nothing 

on me.” Officer Hogan mentioned taking him to the station to 

discuss the check matter and patting him down. Upon hearing 

11
this, Maxwell ran. The jury heard testimony that the next time 

Officer Hogan observed Maxwell, he was walking out from behind 

several stacks of plywood. This time, when approached by 

Officer Hogan, Maxwell did not run. In fact, he was talkative 

and cooperative. 

A “drug dog” was called to the lumberyard, and “alerted” on 

a bag later determined to contain crack cocaine in the lumber 

pallets that Maxwell had been walking behind. Maxwell became 

less talkative with Officer Hogan after the bag was found. 

Later in the day two more bags were found under the pallets, one 

contained cocaine, the other contained marijuana. The pallets 

in question had been placed there at 8:30 the same morning. 

Maxwell ran behind the freshly placed pallets at some time 

shortly after 11 a.m. Two lumberyard employees testified that 

although they did not keep constant surveillance and guard the 

plywood, both were back and forth between the warehouse and the 

yard all morning and they saw no one else near the plywood 

stacks. Additionally, while Maxwell’s fingerprints were not 

found on the bag, a fingerprint expert explained to the jury 

that fingerprints are easily destroyed, and would likely be 

destroyed when the bag was removed from Maxwell’s pants. 

Proper deference must be given to the province of the jury 

to consider the testimony, assess the credibility of the 

witnesses and reject or accept the defendant’s theories. 

12
13

Hudson, 265 Va. at 514, 578 S.E.2d at 786. The jury could have 

concluded that Maxwell was in possession of the drugs when 

approached by Officer Hogan, and that because of this he would 

not show the officer his hands and fled upon mention of a patdown. Maxwell ran to the exact spot where the drugs were 

subsequently found. The jury could have considered the 

testimony of the lumberyard employees that nobody was seen 

around the lumberyard, and interpreted Maxwell’s subsequent 

actions of walking calmly out from behind lumber pallets where 

the drugs were found and his change in demeanor once the drugs 

were found, as circumstantial evidence of his knowledge of the 

nature and character of the substance found. Taken together, 

the evidence in this case was sufficient to support the jury’s 

finding. I would affirm the judgment of the Court of Appeals.