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.
4
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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