COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, Kelsey and Haley
Argued at Richmond, Virginia
CODY JARRELL ROBINSON
MEMORANDUM OPINION * BY
v. Record No. 2697-08-2 JUDGE JAMES W. HALEY, JR.
JANUARY 19, 2010
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Clarence N. Jenkins, Jr., Judge
Cassandra M. Hausrath, Assistant Public Defender (Office of the
Public Defender, on briefs), for appellant.
John W. Blanton, Assistant Attorney General (William C. Mims,
Attorney General, on brief), for appellee.
I. INTRODUCTION
Appealing his conviction for possession of ecstasy with intent to distribute in violation of
Code § 18.2-248, Cody Jarrell Robinson argues the evidence was insufficient to prove his
knowledge of the nature and character of that drug. We affirm.
II. BACKGROUND
On January 21, 2008, Detective Mary Sleem of the Richmond Police Department
conducted a traffic stop of a vehicle in which Robinson was a passenger. As Sleem approached
the vehicle, she noticed an odor of raw marijuana. She asked the driver and Robinson to exit the
vehicle. Sleem informed Robinson that she smelled marijuana and inquired whether Robinson
possessed any illegal substances. Robinson stated he had marijuana in one of the pockets of his
jeans.
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
Sleem retrieved a single clear bag from Robinson’s pocket. Inside the bag were thirteen
smaller bags containing marijuana. Another bag within the larger bag contained seven
individually wrapped tablets of ecstasy. Sleem also recovered $372 in cash.
Sleem asked Robinson about the nature of the pills. In response to a question about
whether he took prescription medication, Robinson replied in the negative. Robinson also
disclaimed knowledge of the nature of the pills. He claimed he found them on the side of the
road on the Mechanicsville Turnpike.
A grand jury indicted Robinson for possession of ecstasy with intent to distribute. A
bench trial was held on September 9, 2008, at which Sleem testified to the above relevant facts.
The prosecution also presented the testimony of Sergeant Michael Talley of the Richmond Police
Department, who testified as an expert on ecstasy distribution. He testified the value of the
ecstasy pills was around eight to ten dollars each, but no more than seventy-five dollars together.
He further testified the pills were packaged in a manner consistent with intent to distribute.
Sergeant Talley also testified that the individually packaged ecstasy pills were stamped.
He explained:
Each stamp represents who the producer is. It’s slang,
something like a logo. You’ve got several different logos here;
you’ve got a “G” on one, you’ve got a female on another one, a
naked female in sort of a crouched position, a “T” on one. So this
indicates that it’s more than likely coming from several different
sources.
[Prosecutor]: Is it common in your experience for ecstasy
to have these types of logo markings on it?
[Talley]: The pills, yes.
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[Defense counsel]: It’s not listed in any pharmaceutical
reference? These pills are something somebody just made in their
home lab somewhere?
[Talley]: Yes.
The trial court found Robinson guilty of possession of ecstasy with intent to distribute. In
making its ruling, the court expressly declined to credit Robinson’s statement to Sleem that he
discovered the pills on the side of the road. The court stated: “The Court doesn’t find that to be
credible then he puts the same bag inside the bag with the marijuana.” The court also noted:
“And the Court finds that based upon all of the circumstances of the case, including the money
that he had . . . the way the other items of marijuana were packaged, that he did have the
knowledge necessary . . . .”
III. ANALYSIS
On appeal, we view “the evidence in the light most favorable to the Commonwealth, the
prevailing party in the circuit court, and we accord the Commonwealth the benefit of all
reasonable inferences deducible from the evidence.” Britt v. Commonwealth, 276 Va. 569, 573,
667 S.E.2d 763, 765 (2008). We “will affirm the judgment unless the judgment is plainly wrong
or without evidence to support it.” Bolden v. Commonwealth, 275 Va. 144, 148, 654 S.E.2d
584, 586 (2008).
The Court employs this deferential standard of review “not only to the historical facts
themselves, but the inferences from those facts as well.” Cooper v. Commonwealth, 54 Va. App.
558, 572, 680 S.E.2d 361, 368 (2009) (internal quotation marks and citation omitted). “The
inferences to be drawn from proven facts, so long as they are reasonable, are within the province
of the trier of fact.” Hancock v. Commonwealth, 12 Va. App. 774, 782, 407 S.E.2d 301, 306
(1991). Thus, a fact finder may “draw reasonable inferences from basic facts to ultimate facts,”
Noakes v. Commonwealth, 54 Va. App. 577, 585, 681 S.E.2d 48, 51 (2009) (en banc) (internal
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quotation marks and citation omitted), unless doing so would push “into the realm of non
sequitur,” Thomas v. Commonwealth, 48 Va. App. 605, 608, 633 S.E.2d 229, 231 (2006)
(internal quotation marks and citation omitted).
Robinson relies upon Young v. Commonwealth, 275 Va. 587, 659 S.E.2d 308 (2008).
There our Supreme Court stated:
In a prosecution for possession of a controlled substance,
the Commonwealth must produce evidence sufficient to support a
conclusion beyond a reasonable doubt that the defendant’s
possession of the drug was knowing and intentional. Burton v.
Commonwealth, 215 Va. 711, 713, 213 S.E.2d 757, 758 (1975).
Actual or constructive possession alone is not sufficient. Id. at
713, 213 S.E.2d at 759. “The Commonwealth must also establish
that the defendant intentionally and consciously possessed it with
knowledge of its nature and character.” Id. (citations omitted)
(emphasis added). That knowledge is an essential element of the
crime.
* * * * * * *
We do not agree with the Court of Appeals’ statement in Josephs 1
that “[p]ossession of a controlled drug gives rise to an inference of
the defendant’s knowledge of its character,” insofar as that
statement can be read to imply that bare possession, without more,
may furnish proof, beyond a reasonable doubt, of the essential
element of guilty knowledge. Countless scenarios can be
envisioned in which controlled substances may be found in the
possession of a person who is entirely unaware of their nature and
character. We adhere to our holding in Burton, quoted above, that
actual or constructive possession alone is not sufficient. To the
extent that the holding in Josephs is inconsistent with our holding
here, i.e., that possession alone, without more, is insufficient to
support an inference of guilty knowledge, we overrule that part of
the decision of the Court of Appeals.
Id. at 591-92, 659 S.E.2d at 310-11.
In Young, the Supreme Court recited with care the findings of the trial court. The Court
enunciated:
1
Josephs v. Commonwealth, 10 Va. App. 87, 101, 390 S.E.2d 491, 498-99 (1990).
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The trial court found from the evidence that the defendant
was in possession of the morphine at the time of her arrest. The
court accepted Stephanie Woody’s testimony that the pills were
hers and that she had valid prescriptions for them, but refused to
accept her speculation as to how the pills came into the defendant’s
possession. The court stated that the finding of guilt was based
upon the defendant’s undisputed possession of the morphine,
coupled with the facts that she had no prescription for it, that it
belonged to someone else, and that it was contained in a bottle
labeled with a different drug that was also a controlled substance.
Id. at 590, 659 S.E.2d at 309-10. The Young Court also noted “the contents of the pill bottle
gave no indication of their character.” Id. at 592, 659 S.E.2d at 311.
The reversal in Young was predicated upon those factual findings by the trial court. The
Court held that under the facts, the record was “devoid of evidence of any acts, statements or
conduct tending to show guilty knowledge.” Id.
The Young Court did note, however, that knowledge of the nature and character of a drug
“may be shown by evidence of the acts, statements or conduct of the accused.” Id. at 591, 659
S.E.2d at 310. The Court continued: “Other circumstantial evidence may also support a finding
of a defendant’s knowledge of the nature and character of the substance in his possession, such
as the drug’s distinctive odor or appearance, or statements or conduct of others in his presence
that would tend to identify it.” Id.
Such circumstances include “the quantity of the drugs seized, the manner in which they
are packaged, and the presence of an unusual amount of cash.” McCain v. Commonwealth, 261
Va. 483, 493, 545 S.E.2d 541, 547 (2001). They also consist of the “acts, declarations or
conduct of the accused from which the inference may be fairly drawn that he knew of the
existence of narcotics,” Ritter v. Commonwealth, 210 Va. 732, 741, 173 S.E.2d 799, 806 (1970),
and the possession of multiple, or “disparate drugs,” Williams v. Commonwealth, 278 Va. 190,
194, 677 S.E.2d 280, 282 (2009). See also Hunley v. Commonwealth, 30 Va. App. 556, 562-63,
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518 S.E.2d 347, 350 (1999); Burke v. Commonwealth, 30 Va. App. 89, 93, 515 S.E.2d 777, 779
(1999); Hamilton v. Commonwealth, 16 Va. App. 751, 753-54, 433 S.E.2d 27, 28 (1993).
“When the drugs are found in the actual, physical possession of the accused, knowledge of where
they were and the defendant’s assertion of dominion are virtually incontrovertible; such
possession is also evidence that the accused knew what he possessed.” Ronald J. Bacigal,
Virginia Practice Series: Criminal Offenses & Defenses 166 (2007-08).
Furthermore, the trier of fact may regard untruthful explanations regarding the possession
of the substance as evidence of the defendant’s guilt. Lane v. Commonwealth, 223 Va. 713, 716,
292 S.E.2d 358, 360 (1982). “A false or evasive account is a circumstance, similar to flight from
a crime scene, that a fact-finder may properly consider as evidence of guilty knowledge.” Covil
v. Commonwealth, 268 Va. 692, 696, 604 S.E.2d 79, 82 (2004).
Finally, drugs of significant value are unlikely to be randomly found. Powell v.
Commonwealth, 27 Va. App. 173, 178, 497 S.E.2d 899, 901 (1998).
Here, the confluence of circumstances permitted the trial court to conclude Robinson
knew the nature and character of the ecstasy pills. Actual possession, as opposed to constructive
possession, is undisputed. The pills were individually packaged, of significant value, and, unlike
the facts in Young, were stamped with logos—a distinctive appearance—demonstrating they
were not produced by a pharmaceutical company, but by someone’s “home lab.” Testimony
indicated such markings are used in ecstasy distribution. Robinson possessed $372 in cash and a
disparate drug, marijuana. In addition, Robinson denied taking any prescription medication.
Finally, Robinson’s statement that he had found the pills on the side of the Mechanicsville
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Turnpike, as the trial court concluded, lacked credibility, and is further evidence he knew of their
nature and character.
For the foregoing reasons, the judgment of the trial court is affirmed.
Affirmed.
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Cody Jarrell Robinson v. Commonwealth of Virginia
Combined Opinion