Kelly v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judges Benton, Elder,
Annunziata, Bumgardner, Frank, Humphreys, Clements,
Felton and Kelsey
Argued at Richmond, Virginia

DEMETRIUS KELLY
OPINION BY
v. Record No. 3100-01-1 JUDGE ROBERT J. HUMPHREYS
AUGUST 5, 2003
COMMONWEALTH OF VIRGINIA

UPON A REHEARING EN BANC

FROM THE CIRCUIT COURT OF ACCOMACK COUNTY
Glen A. Tyler, Judge

William L. Taliaferro, Jr. (Swartz,
Rabinowitz, Taliaferro, Lewis, Swartz &
Goodove, on brief), for appellant.

John H. McLees, Senior Assistant Attorney
General (Jerry W. Kilgore, Attorney General,
on brief), for appellee.

This matter comes before the Court on a rehearing en banc

from an unpublished panel decision rendered January 21, 2003. See

Kelly v. Commonwealth, 03 Vap UNP 3100011 (2003). In that

decision, a divided panel of this Court affirmed Kelly's

conviction for possession of marijuana with intent to distribute

(in violation of Code § 18.2-248.1), but reversed his conviction

for importing narcotics into Virginia with intent to distribute

(in violation of Code § 18.2-248.01), finding the evidence

insufficient, as a matter of law, to support that conviction. By

order dated February 21, 2003, we granted the Commonwealth's
petition for a rehearing en banc, stayed the mandate of that

decision, and reinstated the appeal. Upon rehearing en banc, we

affirm the judgment of the trial court as to both convictions.

I. Background

When the sufficiency of the evidence is challenged on

appeal, we review the evidence "in the light most favorable to

the Commonwealth, granting to it all reasonable inferences

fairly deducible therefrom." Bright v. Commonwealth, 4 Va. App.

248, 250, 356 S.E.2d 443, 444 (1987). "'In so doing, we must

discard the evidence of the accused in conflict with that of the

Commonwealth, and regard as true all the credible evidence

favorable to the Commonwealth and all fair inferences that may

be drawn therefrom.'" Watkins v. Commonwealth, 26 Va. App. 335,

348, 494 S.E.2d 859, 866 (1998) (quoting Cirios v. Commonwealth,

7 Va. App. 292, 295, 373 S.E.2d 164, 165 (1988)).

So viewed, the evidence proved that on March 14, 2000,

State Trooper William Talbert stopped the car Kelly was driving

for having unapproved tinting on its windows. Kelly was driving

southbound on Route 13 in Accomack County. Talbert approached

the driver's side of the car and asked Kelly for his

identification. The officer testified Kelly appeared nervous

and that his hands shook. Talbert detected the odors of both

burnt and "green" marijuana.

Kelly's license bore a Norfolk address. Talbert asked

Kelly "where are you coming from?" Kelly twice told the officer
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that he and his passenger, Joey Knight, had been in Maryland.

Kelly stated he was not sure where in Maryland he had been, and

told Trooper Talbert that he would have to ask Knight about

that.

Because he had smelled "burnt marijuana in the car and

green marijuana," Talbert told Kelly he was going to "search him

and his car and also [Knight] . . . ." Talbert then searched

Kelly's car.

In the front [Talbert] could kind of smell
burnt and greenish marijuana a little bit
and then [Talbert] observed what [he]
believed to be marijuana flakes and buds in
the front seat – left front seat right
quarter and between the front left and right
bucket seats around the console carpet area
seeds and buds of marijuana in the carpeting
and [he] looked underneath and [he] could
smell kind of a greenish tinge of marijuana
heavier like underneath on the floor board
like under the seats and so forth.
[Talbert] went to the back seat and
pulled . . . down the rear seat compartment.
Not all the way back in the cargo area.
[Talbert] pushed the button down and pulled
the rear seat forward. The back of it
folded down and there was a black duffel bag
behind the back seat in the cargo area of
the vehicle.

* * * * * * *

[Talbert] unzipped it and [he] saw several
looked [sic] like up to six cellophane
wrapped [sic] heavily wrapped – you couldn't
tell what was in it – packages of what
[Talbert] assumed to be drugs . . . .

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 At that point, Talbert told Kelly he was under arrest for

"trafficking cocaine." Kelly looked "extremely surprised" and

stated, "Cocaine?"

Talbert transported the two men to the police station. As he

placed the duffel bag on a table and began to take out the heavily

wrapped bags, Kelly exclaimed, "Man, that ain't my weed." Talbert

testified he did not know the contents of the bag until he cut

through the cellophane, that Kelly was not in a position where he

could observe the contents of the bag, and had not been told the

bag contained marijuana.

The officers later determined the bag contained twenty

pounds and five ounces of marijuana. Talbert testified that

amount of marijuana was inconsistent with personal use.

Kelly testified on his own behalf. He stated that he had

met "up" with Knight that morning to go to Maryland to "see two

strippers [Knight] had met the previous week." He claimed that

when he arrived at Knight's home that morning, Knight asked if

he could use Kelly's car to go to the store. Kelly stated that

he agreed, and waited at Knight's home until he returned, about

fifteen to twenty minutes later.

Kelly testified that the two men left for Maryland at about

11:30 a.m. Kelly claimed that on their way there, they had

veered off of Route 13 to make a stop at a "Stuckey's"

restaurant to get "[s]oda, chips and . . . a lottery ticket."

When they left Stuckey's and returned to Route 13, Kelly made a
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wrong turn, causing the car to travel toward Norfolk and away

from Maryland. Kelly stated that it was at that time that he

was stopped by Trooper Talbert.

Kelly agreed that Trooper Talbert asked him "where [he] was

coming from," but then quickly changed his mind and testified

that Trooper Talbert asked him "where he was going to." Kelly

claimed that he told Trooper Talbert he was going to Maryland.

He further claimed that he had never been to Maryland, and

denied having any knowledge that the black bag was in his car,

or that marijuana was in his car. He testified that when he was

at the police station and stated "that ain't my weed," the

contents of the bag were laid out on the table, "in plain view."

The trial court ruled as follows:

In this case the facts are in some respects
in dispute. The court finds that [Kelly]
was on U.S. Route 13; that he stopped at
Stuckey's roadside commercial establishment;
that he then proceeded south on U.S. Route
13 towards Norfolk away from Maryland when
the trooper stopped him proceeding in that
direction. He did not tell the trooper that
he was headed in the wrong direction. There
is no evidence that emanates from that
particular time to indicate that he was
going in a wrong direction. He told the
trooper on two separate occasions that he
was coming from Maryland. There is no
evidence to indicate at all that he was
doing otherwise. There is no evidence to
indicate that he had stopped anywhere other
than in Accomack County after coming to
Maryland. The evidence is clear that
[Kelly] was coming from Maryland.

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The court further found that the evidence clearly established

"[Kelly] did know what was in those packages and he said that

weed is not mine." Therefore, the trial court found Kelly

"guilty as charged on both counts."

II. Analysis

On appeal, Kelly contends the trial court erred in finding

the evidence sufficient, as a matter of law, to prove that he

transported the drugs into the Commonwealth and/or to prove that

he possessed the drugs. We disagree.

When considering on appeal the sufficiency of the evidence

presented below, we "presume the judgment of the trial court to be

correct" and reverse only if the trial court's decision is

"plainly wrong or without evidence to support it." Davis v.

Commonwealth, 39 Va. App. 96, 99, 570 S.E.2d 875, 876-77 (2002);

see also McGee v. Commonwealth, 25 Va. App. 193, 197-98, 487

S.E.2d 259, 261 (1997) (en banc). Thus, we do not "substitute our

judgment for that of the trier of fact." Wactor v. Commonwealth,

38 Va. App. 375, 380, 564 S.E.2d 160, 162 (2002). "Instead, the

relevant question 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).

"This familiar standard gives full play to the responsibility of

the trier of fact fairly to resolve conflicts in the testimony, to

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weigh the evidence, and to draw reasonable inferences from basic

facts to ultimate facts." Id.

As Kelly accurately points out, in circumstantial evidence

cases, the reasonable doubt standard requires proof "sufficiently

convincing to exclude every reasonable hypothesis except that of

guilt." Coleman v. Commonwealth, 226 Va. 31, 53, 307 S.E.2d 864,

876 (1983). However, "[t]here is no distinction in the law

between the weight or value to be given to either direct or

circumstantial evidence. The finder of fact is entitled to

consider all of the evidence, without distinction, in reaching its

determination." Commonwealth v. Hudson, 265 Va. 505, 512-13, 578

S.E.2d 781, 785 (2003). Moreover, this principle, "does not add

to the burden of proof placed upon the Commonwealth in a criminal

case. The statement that circumstantial evidence must exclude

every reasonable theory of innocence is simply another way of

stating that the Commonwealth has the burden of proof beyond a

reasonable doubt." Id. at 513, 578 S.E.2d at 785 (citation

omitted).

In regard to Kelly's first contention, Code § 18.2-248.01

provides, in pertinent part, that "it is unlawful for any person

to transport into the Commonwealth by any means with intent to

sell or distribute . . . five or more pounds of marijuana." "[A]

violation of Code § 18.2-248.01 occurs at the moment a person

transporting illegal substances penetrates the borders of the

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Commonwealth." Seke v. Commonwealth, 24 Va. App. 318, 325, 482

S.E.2d 88, 91 (1997).

It is undisputed that Kelly was transporting illegal drugs in

his car when he was stopped by Trooper Talbert. It is further

undisputed that, at the time he was stopped by Trooper Talbert,

Kelly was traveling southbound on Route 13 in Virginia, away from

Maryland and toward Norfolk. Moreover, viewed in the light most

favorable to the Commonwealth, the evidence presented below

demonstrated that the odor of both burnt and green marijuana

emanated from the car and that, upon questioning by Trooper

Talbert, Kelly twice informed Trooper Talbert that he and Knight

had just come from "somewhere in Maryland."

Thus, contrary to Kelly's contention on appeal, the

Commonwealth clearly presented evidence, although entirely

circumstantial, "relating to the entry of the marijuana into

Virginia and [Kelly's] role in that entry." We find that this

evidence reasonably supported the trial court's determination that

when he was stopped by Trooper Talbert, Kelly had just transported

the drugs from the State of Maryland, into the Commonwealth of

Virginia. Indeed, the appellate courts of this Commonwealth have

long recognized that circumstantial evidence is not to be viewed

in isolation. See Hudson, 265 Va. at 514, 578 S.E.2d at 786; see

also Pease v. Commonwealth, 39 Va. App. 342, 360, 573 S.E.2d 272,

280 (2002) (citing Derr v. Commonwealth, 242 Va. 413, 425, 410

S.E.2d 662, 669 (1991); Stamper v. Commonwealth, 220 Va. 260, 273,
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257 S.E.2d 808, 818 (1979); Karnes v. Commonwealth, 125 Va. 758,

764, 99 S.E. 562, 564 (1919)). "'While no single piece of

evidence may be sufficient, the "combined force of many concurrent

and related circumstances, each insufficient in itself, may lead a

reasonable mind irresistibly to a conclusion."'" Id. (quoting

Derr, 242 Va. at 425, 410 S.E.2d at 669). On this basis, and

viewing the evidence in the light most favorable to the

Commonwealth, we find no error in the trial court's determination

that the Commonwealth's evidence proved the essential elements of

the crime at issue beyond a reasonable doubt. 1

Kelly's contention that the Commonwealth's evidence failed to

exclude any reasonable hypotheses of innocence does not persuade

us differently. Indeed, whether an "alternative hypothesis of

innocence is reasonable is a question of fact and, therefore, is

binding on appeal unless plainly wrong." Stevens v. Commonwealth,

38 Va. App. 528, 535, 567 S.E.2d 537, 540 (2002) (citations

omitted). On this evidence, it is clear that the trial court

could have reasonably rejected Kelly's theories in his defense and

found him guilty of transporting illegal drugs into the

Commonwealth beyond a reasonable doubt. Indeed, the evidence

gathered by Trooper Talbert during the stop excluded Kelly's

1
We do not address the rather extensive discussion between
the parties regarding whether the trial court properly relied
upon its own knowledge of the local geography in reaching its
conclusion because we find no evidence in the record reflecting
the trial court's consideration of any such evidence.
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theories of innocence presented at trial. See Hudson, 265 Va. at

517, 578 S.E.2d at 787-88. 2 Thus, the trial court was entitled to

infer, upon its reasonable rejection of Kelly's alternative

hypotheses of innocence, that Kelly was lying to conceal his

guilt, lending further support to its judgment of guilt. Dowden

v. Commonwealth, 260 Va. 459, 469-70, 536 S.E.2d 437, 442 (2000)

(citations omitted).

In regard to Kelly's next contention, that the Commonwealth

failed to establish he possessed the drugs, we note that "[t]he

Commonwealth may prove possession of a controlled substance by

showing either actual or constructive possession." Barlow v.

Commonwealth, 26 Va. App. 421, 429, 494 S.E.2d 901, 904 (1998).

To support a conviction based upon constructive possession, "the

Commonwealth must point to evidence of acts, statements, or

conduct of the accused or other facts or circumstances which tend

2
Furthermore, as noted above, Kelly testified at trial on
his own behalf. During his testimony, Kelly specifically stated
that he and Knight stopped at the Stuckey's to get "[s]oda,
chips and . . . a lottery ticket." Kelly did not contend that
he obtained the drugs at the Stuckey's, nor did he claim that
Knight had the opportunity to obtain the drugs while they were
there, so that he could put them in the car without Kelly's
knowledge. Thus, to hold that it is a reasonable hypothesis
that the drugs were obtained at the Stuckey's in Virginia would
require an exercise in pure speculation outside the record.
Indeed, contrary to the rationale in the concurring/dissenting
opinion, no evidence presented at trial supports such a
"hypothesis" of innocence. Moreover, it is well settled that
the Commonwealth need only exclude reasonable hypotheses of
innocence that flow from the evidence and that "[h]ypotheses not
flowing from the evidence must be rejected." Fordham v.
Commonwealth, 13 Va. App. 235, 239, 409 S.E.2d 829, 831 (1991).
- 10 -
to show that the defendant was aware of 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) (citation omitted). However, "[t]he Commonwealth

is not required to prove that there is no possibility that someone

else may have planted, discarded, abandoned or placed the

drugs . . . ." Brown v. Commonwealth, 15 Va. App. 1, 10, 421

S.E.2d 877, 883 (1992) (en banc). Further, possession of drugs,

whether actual or constructive, need not be exclusive, but may

instead be joint. Archer v. Commonwealth, 225 Va. 416, 418, 303

S.E.2d 863, 863 (1983). Moreover, "[a]lthough mere proximity to

the contraband is insufficient to establish possession, it is a

factor that may be considered in determining whether a defendant

possessed the contraband. Ownership or occupancy of the premises

on which the contraband was found is likewise a circumstance

probative of possession." Archer v. Commonwealth, 26 Va. App. 1,

12, 492 S.E.2d 826, 832 (1997) (citation omitted).

As stated above, in the case at bar, Trooper Talbert

testified he noted a strong scent of burnt and green marijuana

emanating from Kelly's vehicle. It is undisputed that Kelly was

the owner and driver of the car, and appeared nervous during the

encounter with the officer. Moreover, Kelly appeared surprised

upon hearing he was being arrested for possession of cocaine and,

at the police station, Kelly indicated the marijuana was not his

before he had been informed there was marijuana in the bag.
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Kelly's statements and conduct, in conjunction with his ownership

of the vehicle and proximity to the drugs, clearly support the

reasonable inference that he knowingly possessed them. Likewise,

this evidence provided the trial court with a reasonable basis

upon which to reject Kelly's protestations of innocence. We thus

find the trial court reasonably determined that the Commonwealth's

evidence was sufficient to prove beyond a reasonable doubt that

Kelly was guilty of possession of marijuana with the intent to

distribute. Accordingly, we affirm the judgment of the trial

court as to each of Kelly's convictions.

Affirmed.

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Elder, J., with whom Clements, J., joins, concurring, in part,
and dissenting, in part.

I concur in the majority's ruling affirming Demetrius

Kelly's conviction for possessing marijuana with the intent to

distribute. However, I would hold the evidence as found by the

trial court was insufficient to prove Kelly imported narcotics

into Virginia in violation of Code § 18.2-248.01. Therefore, I

respectfully dissent from the portion of the majority opinion

affirming Kelly's conviction for that offense.

Code § 18.2-248.01 provides, in pertinent part, that "it is

unlawful for any person to transport into the Commonwealth by

any means with intent to sell or distribute . . . five or more

pounds of marijuana." "[A] violation of Code § 18.2-248.01

occurs at the moment a person transporting illegal substances

penetrates the borders of the Commonwealth." Seke v.

Commonwealth, 24 Va. App. 318, 325, 482 S.E.2d 88, 91 (1997).

To justify conviction of a crime, it is
insufficient to create a suspicion or
probability of guilt. Rather, the burden is
upon the Commonwealth to prove every
essential element of the offense beyond a
reasonable doubt. "The evidence must
exclude every reasonable hypothesis of
innocence and be consistent only with the
guilt of the accused."

Moore v. Commonwealth, 254 Va. 184, 186, 491 S.E.2d 739, 740

(1997) (quoting Powers v. Commonwealth, 211 Va. 386, 388, 177

S.E.2d 628, 629 (1970)) (citations omitted). "Whether an

alternative hypothesis of innocence is reasonable is a question

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of fact and, therefore, is binding on appeal unless plainly

wrong." Archer v. Commonwealth, 26 Va. App. 1, 12-13, 492

S.E.2d 826, 832 (1997). "When [the] facts," viewed in the light

most favorable to the Commonwealth, "are equally susceptible to

more than one interpretation, one which is consistent with the

innocence of the accused, the trier of fact cannot arbitrarily

adopt an inculpatory interpretation." Moody v. Commonwealth, 28

Va. App. 702, 706, 508 S.E.2d 354, 356 (1998).

Here, although the circumstances were suspicious, the

record does not prove that Kelly possessed the drugs when he

entered Virginia from Maryland. Although Kelly twice informed

the officer that he and his companion were coming from

"somewhere in Maryland," he did not indicate he purchased or

possessed drugs at that time. Further, as the majority

acknowledges in quoting the ruling below, the trial court

expressly found that Kelly re-entered Virginia and "stopped at

[a] Stuckey's roadside commercial establishment" "in Accomack

County" before he was stopped by the officer. The fact that

Kelly possessed the drugs in close proximity to the

Virginia-Maryland state line and that he was coming from

somewhere in Maryland does not reasonably support an inference

that Kelly brought the drugs from Maryland into Virginia any

more than it supports an inference that Kelly acquired the drugs

after he came into Virginia.

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 In McCary v. Commonwealth, 36 Va. App. 27, 41, 548 S.E.2d

239, 246 (2001), we held the detective's testimony that McCary

admitted bringing cocaine into Virginia from North Carolina

provided sufficient evidence to support a Code § 18.2-248.01

conviction. Here, by contrast, Kelly made no such admission to

the police. Further, no evidence in the record indicates Kelly

possessed the marijuana at the time he entered the Commonwealth,

and the trial court expressly found that he stopped his vehicle

at a Stuckey's after crossing back into Virginia. Thus, the

evidence in the record, as found by the trial court, does not

exclude the reasonable hypothesis that appellant obtained the

drugs after returning to Virginia, and the trial court's

implicit rejection of this hypothesis of innocence was plainly

wrong.

Because the evidence was insufficient to exclude all

reasonable hypotheses of innocence, I would reverse appellant's

conviction for "transport[ing] into the Commonwealth . . . with

intent to sell or distribute . . . five or more pounds of

marijuana" in violation of Code § 18.2-248.01.

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Benton, J., dissenting.

I would reverse both convictions. I join in the part of

Judge Elder's dissenting opinion that "would hold the evidence

as found by the trial court was insufficient to prove Kelly

imported narcotics into Virginia in violation of Code

§ 18.2-248.01." For the reasons that follow, I would also hold

the evidence was insufficient to prove Kelly possessed the

marijuana in violation of Code § 18.2-248.1.

This conviction was based on circumstantial evidence of

constructive possession. To prove that an accused

constructively possessed a controlled substance, "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 [accused] was aware of both the presence

and character of the 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).

[W]ell established principles apply to
testing the sufficiency of circumstantial
evidence. . . .

"[I]f the proof relied upon by the
Commonwealth is wholly circumstantial, as it
here is, then to establish guilt beyond a
reasonable doubt all necessary circumstances
proved must be consistent with guilt and
inconsistent with innocence. They must
overcome the presumption of innocence and
exclude all reasonable conclusions
inconsistent with that of guilt. To
accomplish that, the chain of necessary
circumstances must be unbroken and the
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 evidence as a whole must satisfy the guarded
judgment that both the corpus delicti and
the criminal agency of the accused have been
proved to the exclusion of any other
rational hypothesis and to a moral
certainty."

But, circumstances of suspicion, no
matter how grave or strong, are not proof of
guilt sufficient to support a verdict of
guilty. The actual commission of the crime
by the accused must be shown by evidence
beyond a reasonable doubt to sustain his
conviction.

Clodfelter v. Commonwealth, 218 Va. 619, 623, 238 S.E.2d 820,

822 (1977) (citations omitted).

Although Kelly was in close proximity to the marijuana, he

was no closer to it than his passenger. "Although both men were

riding in the automobile, no evidence or rule of law compels a

finding that a person who shares an automobile with another

necessarily knows that the other person has contraband or also

shares possession of contraband that the other person has in the

automobile." Scruggs v. Commonwealth, 19 Va. App. 58, 62, 448

S.E.2d 663, 665 (1994). See also Crisman v. Commonwealth, 197

Va. 17, 20-21, 87 S.E.2d 796, 798-99 (1955) (occupants of an

automobile not presumed to know that a small amount of white

powder on the floor was heroin); Jones v. Commonwealth, 17

Va. App. 572, 573, 439 S.E.2d 863, 864 (1994) (occupant of

automobile not presumed to have awareness of presence and

character of small pieces of cocaine on tray between occupant

and driver). Furthermore, Code § 18.2-250 could not be clearer:

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"Upon the prosecution of a person [for possession of a

controlled substance], ownership or occupancy of . . . [a]

vehicle upon or in which a controlled substance was found shall

not create a presumption that such person either knowingly or

intentionally possessed such controlled substance." The opaque

duffel bag in the rear compartment of the vehicle was not proved

to be Kelly's. Indeed, the evidence is equally consistent with

the conclusion that the duffel bag belonged solely to Kelly's

passenger.

The police officer testified that during the road-side

interrogation Kelly denied he had drugs or guns in the vehicle.

Despite Kelly's denial, the officer searched the vehicle because

he believed he detected the smell of "a sweet deodorizer, and

. . . [the] smell [of] burnt marijuana . . . and a greenish

tinge of marijuana . . . from outside the car." No evidence,

however, established that Kelly knew or should have known that

the odor, which the officer said he detected, indicated the bag

contained marijuana. The officer's interrogation about the

marijuana obviously put Kelly on notice that the officer

suspected its presence.

Furthermore, the evidence contains innocent explanations

for Kelly's surprised reaction to the cocaine accusation, for

his statement at the police station concerning the marijuana,

and for his denial that the marijuana was his. The officer

testified that, before he searched the vehicle, he "advised
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. . . Kelly that [he] smelled marijuana in the car and . . . was

going to check the vehicle." After seizing the bag, the officer

"thought . . . [it] might have [contained] cocaine and

marijuana." The evidence proved Kelly expressed surprise when

the officer told him he was "under arrest for trafficking

cocaine." That expression of surprise is consistent with

Kelly's disbelief that cocaine was in the vehicle and with

incredulity that some other unlawful substance existed when the

officer had said he smelled marijuana.

The officer's testimony about the events following the

arrest did not prove beyond a reasonable doubt Kelly knew

marijuana was in the duffel bag in the rear compartment of the

vehicle he was driving. He described those events as follows:

A: Mr. Kelly and Mr. Knight were separated
and they were put in the task force office
in another room where they couldn't see us
and they were being watched at a desk in the
office.

Q: Were they separated from one another?

A: They were separated from one another and
from the contraband.

Q: They were not in that same room?

A: That's correct, they were not.

Q: Was there any further conversation with
the defendant, Mr. Kelly?

A: He sat there in the open room of the
stuff. I started taking the items out and
placed them on the table to see what they
were and kind of walked back and forth
between Mr. Kelly and the other room and

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 observed what was going on. Mr. Kelly just
blurted out, he said, Man, that ain't my
weed.

Q: Had you said anything to him about weed?

A: Not as of yet. I didn't know it was
marijuana until we took it out and started
cutting it open.

Q: Was he in a position to be able to see
the "weed"?

A: No, sir.

Q: So had he been questioned about
marijuana?

A: Yes.

In view of the officer's testimony that he told Kelly he

would search the vehicle because he smelled marijuana and that

he interrogated Kelly at the road-side about marijuana, Kelly

could have reasonably concluded that the bag the officer seized

contained marijuana. Thus, the evidence provides ample bases

for Kelly to believe the officers found marijuana and to

preemptively declare the marijuana was not his. In short, the

evidence does not support an inference that Kelly knew marijuana

was in the vehicle before the officer stopped him.

This evidence proved only suspicious circumstances arising

from Kelly's proximity to the duffel bag. Inferences that are

drawn from these suspicious circumstances alone are not

sufficient to prove knowing possession of a controlled

substance. No evidence proved Kelly knew the controlled

substances were in the bag before the officer opened it and

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arrested him. "Evidence merely that the accused was in the

proximity of controlled substances is insufficient . . . to

prove that the accused was aware of the presence and character

of a controlled substance." Jones, 17 Va. App. at 574, 439

S.E.2d at 864.

Even if it is probable that the marijuana belonged to

Kelly, probability of guilt is insufficient to warrant a

criminal conviction. Crisman, 197 Va. at 21, 87 S.E.2d at 799.

Because "evidence must establish the guilt of an accused beyond

a reasonable doubt . . . [,] guilt . . . is not to be inferred

because the facts are consistent with his guilt, but they must

be inconsistent with his innocence." Cameron v. Commonwealth,

211 Va. 108, 110-11, 175 S.E.2d 275, 276 (1970). Suspicious

circumstances "'no matter how grave or strong, are not proof of

guilt sufficient to support a verdict of guilty. The actual

commission of the crime by the accused must be shown by evidence

beyond a reasonable doubt to sustain his conviction.'" Crisman,

197 Va. at 21, 87 S.E.2d at 799 (quoting Powers v. Commonwealth,

182 Va. 669, 676, 30 S.E.2d 22, 25 (1944)).

For these reasons, I would reverse both convictions.

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 Friday 21st

February, 2003.

Demetrius Kelly, Appellant,

against Record No. 3100-01-1
Circuit Court No. 00CR200

Commonwealth of Virginia, Appellee.

Upon a Petition for Rehearing En Banc

Before the Full Court

On January 30, 2003 came the appellee, by the Attorney

General of Virginia, and filed a petition praying that the Court

set aside the judgment rendered herein on January 21, 2003, and

grant a rehearing en banc thereof.

On consideration whereof, the petition for rehearing

en banc is granted, the mandate entered herein on January 21,

2003 is stayed pending the decision of the Court en banc, and

the appeal is reinstated on the docket of this Court.

The parties shall file briefs in compliance with Rule

5A:35. The appellee shall attach as an addendum to the opening

brief upon rehearing en banc a copy of the opinion previously

rendered by the Court in this matter. It is further ordered that

the appellee

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shall file with the clerk of this Court twelve additional copies

of the appendix previously filed in this case.

A Copy,

Teste:

Cynthia L. McCoy, Clerk

By:

Deputy Clerk

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 COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Elder and Senior Judge Coleman
Argued at Chesapeake, Virginia

DEMETRIUS KELLY
MEMORANDUM OPINION * BY
v. Record No. 3100-01-1 JUDGE SAM W. COLEMAN III
JANUARY 21, 2003
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF ACCOMACK COUNTY
Glen A. Tyler, Judge

William L. Taliaferro, Jr. (Swartz,
Rabinowitz, Taliaferro, Lewis, Swartz &
Goodove, on briefs), for appellant.

John H. McLees, Senior Assistant Attorney
General (Jerry W. Kilgore, Attorney General;
Susan M. Harris, Assistant Attorney General,
on brief), for appellee.

Demetrius Kelly appeals his bench trial convictions for

importing narcotics into Virginia with the intent to distribute,

Code § 18.2-248.01, and possessing marijuana with the intent to

distribute, Code § 18.2-248.1. He argues the evidence was

insufficient to support his convictions. Finding the evidence

insufficient to convict Kelly of importing narcotics into

Virginia but sufficient to convict him of possession of

marijuana with the intent to distribute, we reverse in part and

affirm in part the judgment of the trial court.

* Pursuant to Code § 17.1-413, this opinion is not designated
for publication.

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 BACKGROUND

When the sufficiency of the evidence is challenged on

appeal, we review the evidence "in the light most favorable to

the Commonwealth, granting to it all reasonable inferences

fairly deducible therefrom." Bright v. Commonwealth, 4 Va. App.

248, 250, 356 S.E.2d 443, 444 (1997). "In so doing, we must

discard the evidence of the accused in conflict with that of the

Commonwealth, and regard as true all the credible evidence

favorable to the Commonwealth and all fair inferences that may

be drawn therefrom." Watkins v. Commonwealth, 26 Va. App. 335,

349, 494 S.E.2d 859, 866 (1998). We are further mindful that

the "credibility of a witness, the weight accorded the

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

matters solely for the fact finder's determination." Crawley v.

Commonwealth, 29 Va. App. 372, 375, 512 S.E.2d 169, 170 (1999).

So viewed, the evidence proved that on March 14, 2000,

State Trooper William Talbert stopped the vehicle Kelly was

driving for having unapproved tinting on its windows. Kelly was

driving southbound on Route 13 in Accomack County. Talbert

approached the driver's side of the vehicle and asked Kelly for

his identification. The officer testified Kelly appeared

nervous and that his hands shook. Talbert detected the odors of

both burnt and "green" marijuana.

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 Kelly's license bore a Norfolk address. Talbert asked

Kelly from where he was travelling. Kelly twice told the

officer that he and his passenger, Joey Knight, had been in

Maryland. Knight told the officer they were coming from New

York.

Talbert searched Kelly's vehicle and found marijuana seeds,

flakes, and chunks throughout the car. In the back of the

vehicle, the officer found a black duffel bag. Its contents

were heavily wrapped in cellophane. Talbert told Kelly he was

under arrest for trafficking cocaine. Talbert testified Kelly

looked "extremely surprised" and stated, "cocaine?" Talbert

transported the two men to the police station and as he placed

the duffel bag on a table, Kelly exclaimed, "Man, that ain't my

weed." Talbert testified he did not know the contents of the

bag until he cut through the cellophane, that Kelly was not

placed where he could observe the contents of the bag, and had

not been told the bag contained marijuana.

The bag contained twenty pounds and five ounces of

marijuana. Talbert testified that amount of marijuana was

inconsistent with personal use. Where Talbert stopped and

searched Kelly's vehicle was approximately ten miles from the

Virginia-Maryland state line.

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 ANALYSIS

I.

In pertinent part, Code § 18.2-248.01 provides that "it is

unlawful for any person to transport into the Commonwealth by

any means with intent to sell or distribute . . . five or more

pounds of marijuana." Kelly argues the Commonwealth failed to

prove he transported the drugs into Virginia. We agree.

"[A] violation of Code § 18.2-248.01 occurs at the moment a

person transporting illegal substances penetrates the borders of

the Commonwealth." Seke v. Commonwealth, 24 Va. App. 318, 325,

482 S.E.2d 88, 91 (1997). Although the circumstances were

suspicious, the record does not support the trial court's

conclusion that Kelly possessed the drugs when he entered

Virginia from Maryland. Although Kelly twice informed the

officer that he and Knight were coming from "somewhere in

Maryland," he did not indicate he purchased or possessed the

drugs at that time and the evidence does not prove that

essential element. The fact that Kelly possessed the drugs in

close proximity to the Virginia-Maryland state line and that he

was coming from somewhere in Maryland does not reasonably

support an inference by the fact finder that Kelly brought the

drugs from Maryland into Virginia anymore so than that he

acquired the drugs after he came into Virginia.

In McCary v. Commonwealth, 36 Va. App. 27, 548 S.E.2d 239

(2001), we held that the detective's testimony that McCary

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admitted bringing cocaine into Virginia from North Carolina

provided sufficient evidence to support a Code § 18.2-248.01

conviction. Id. at 41, 548 S.E.2d at 246. Kelly made no such

admission to the police, and no evidence in the record indicates

Kelly possessed the marijuana at the time he entered the

Commonwealth.

To justify conviction of a crime, it is
insufficient to create a suspicion or
probability of guilt. Rather, the burden is
upon the Commonwealth to prove every
essential element of the offense beyond a
reasonable doubt. "The evidence must
exclude every reasonable hypothesis of
innocence and be consistent only with the
guilt of the accused."

Moore v. Commonwealth, 254 Va. 184, 186, 491 S.E.2d 739, 740

(1997) (citation omitted). Because neither Kelly nor Knight

admitted obtaining the drugs while out of state, and because no

other evidence indicated Kelly brought the marijuana from

outside Virginia, the evidence was insufficient to support his

Code § 18.2-248.01 conviction.

II.

Kelly argues only that the Commonwealth failed to establish

he possessed the contraband. We disagree.

"The Commonwealth may prove possession of a controlled

substance by showing either actual or constructive possession."

Barlow v. Commonwealth, 26 Va. App. 421, 429, 494 S.E.2d 901,

904 (1998).

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 To support a conviction based upon
constructive possession, "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 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) (citation omitted). "The Commonwealth is not required to

prove that there is no possibility that someone else may have

planted, discarded, abandoned or placed the drugs . . . ."

Brown v. Commonwealth, 15 Va. App. 1, 10, 421 S.E.2d 877, 883

(1992) (en banc). "Although mere proximity to the contraband is

insufficient to establish possession, it is a factor that may be

considered in determining whether a defendant possessed the

contraband. Ownership or occupancy of the premises on which the

contraband was found is likewise a circumstance probative of

possession." Archer v. Commonwealth, 26 Va. App. 1, 12, 492

S.E.2d 826, 832 (1997).

Talbert testified he noted a strong scent of burnt and

green marijuana emanating from Kelly's vehicle. Kelly was the

owner and driver of the car and appeared nervous during the

encounter with the officer. Kelly appeared surprised upon

hearing he was being arrested for possession of cocaine. At the

police station, Kelly indicated the marijuana was not his before

he had been informed there was marijuana in the bag. Kelly's

statements and conduct, his ownership of the vehicle, and

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proximity to the drugs indicate he knowingly possessed the

contraband. The Commonwealth's evidence was competent, was not

inherently incredible, and was sufficient to prove beyond a

reasonable doubt that Kelly was guilty of possession of

marijuana with the intent to distribute.

Accordingly, we affirm Kelly's conviction for possession of

marijuana with the intent to distribute, and we reverse his

conviction for importing narcotics into Virginia with the intent

to distribute and dismiss that indictment.

Affirmed in part,
reversed in part
and dismissed.

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Benton, J., concurring, in part, and dissenting, in part.

I join in the parts of the opinion styled BACKGROUND and

ANALYSIS (I); therefore, I concur in reversing the conviction

for importing narcotics into Virginia with the intent to

distribute. I dissent from ANALYSIS (II).

This conviction was based on circumstantial evidence of

constructive possession. To prove that an accused

constructively possessed a controlled substance, "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 [accused] was aware of both the presence

and character of the 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).

[W]ell established principles apply to
testing the sufficiency of circumstantial
evidence . . . .

"[I]f the proof relied upon by the
Commonwealth is wholly circumstantial, as it
here is, then to establish guilt beyond a
reasonable doubt all necessary circumstances
proved must be consistent with guilt and
inconsistent with innocence. They must
overcome the presumption of innocence and
exclude all reasonable conclusions
inconsistent with that of guilt. To
accomplish that, the chain of necessary
circumstances must be unbroken and the
evidence as a whole must satisfy the guarded
judgment that both the corpus delicti and
the criminal agency of the accused have been
proved to the exclusion of any other
rational hypothesis and to a moral
certainty."

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 But, circumstances of suspicion, no
matter how grave or strong, are not proof of
guilt sufficient to support a verdict of
guilty. The actual commission of the crime
by the accused must be shown by evidence
beyond a reasonable doubt to sustain his
conviction.

Clodfelter v. Commonwealth, 218 Va. 619, 623, 238 S.E.2d 820,

822 (1977) (citations omitted).

Although Kelly was in close proximity to the marijuana, he

was no closer to it than his passenger. Furthermore, Code

§ 18.2-250 could not be clearer: "Upon the prosecution of a

person [for possession of a controlled substance], ownership or

occupancy of . . . [a] vehicle upon or in which a controlled

substance was found shall not create a presumption that such

person either knowingly or intentionally possessed such

controlled substance." The opaque duffel bag in the rear

compartment of the vehicle was not shown to be Kelly's. Indeed,

the evidence is equally consistent with the conclusion that the

duffel bag belonged to Kelly's passenger. "Although both men

were riding in the automobile, no evidence or rule of law

compels a finding that a person who shares an automobile with

another necessarily knows that the other person has contraband

or also shares possession of contraband that the other person

has in the automobile." Scruggs v. Commonwealth, 19 Va. App.

58, 62, 448 S.E.2d 663, 665 (1994). See also Crisman v.

Commonwealth, 197 Va. 17, 20-21, 87 S.E.2d 796, 798-99 (1955)

(occupants of an automobile not presumed to know that a small

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amount of white powder on the floor was heroin); Jones v.

Commonwealth, 17 Va. App. 572, 573, 439 S.E.2d 863, 864 (1994)

(occupant of automobile not presumed to have awareness of

presence and character of small pieces of cocaine on tray

between occupant and driver).

The police officer testified that during the road-side

interrogation Kelly denied he had drugs or guns in the vehicle.

Despite Kelly's denial, the officer searched the vehicle because

he believed he detected the smell of "a sweet deodorizer, and

. . . [the] smell [of] burnt marijuana . . . and a greenish

tinge of marijuana . . . from outside the car." No evidence,

however, established that Kelly knew or should have known that

the odor, which the officer said he detected, indicated the bag

contained marijuana.

Furthermore, the evidence contains innocent explanations

for Kelly's surprised reaction to the cocaine accusation, for

his statement at the police station concerning the marijuana,

and for denying that the marijuana was his. The officer

testified that before he searched the vehicle, he "advised . . .

Kelly that [he] smelled marijuana in the car and . . . was going

to check the vehicle." After seizing the bag, he "thought . . .

[it] might have [contained] cocaine and marijuana." The

evidence proved Kelly expressed surprise when the officer told

him he was "under arrest for trafficking cocaine." That

expression of surprise is consistent with Kelly's disbelief that

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cocaine was in the vehicle and with incredulity that some other

unlawful substance existed when the officer had said he smelled

marijuana.

The officer's testimony about the events following the

arrest did not prove beyond a reasonable doubt Kelly knew when

he was driving that marijuana was in the duffel bag in the rear

compartment. He described those events as follows:

A: Mr. Kelly and Mr. Knight were separated
and they were put in the task force office
in another room where they couldn't see us
and they were being watched at a desk in the
office.

Q: Were they separated from one another?

A: They were separated from one another and
from the contraband.

Q: They were not in that same room?

A: That's correct, they were not.

Q: Was there any further conversation with
the defendant, Mr. Kelly?

A: He sat there in the open room of the
stuff. I started taking the items out and
placed them on the table to see what they
were and kind of walked back and forth
between Mr. Kelly and the other room and
observed what was going on. Mr. Kelly just
blurted out, he said, Man, that ain't my
weed.

Q: Had you said anything to him about weed?

A: Not as of yet. I didn't know it was
marijuana until we took it out and started
cutting it open.

Q: Was he in a position to be able to see
the "weed"?

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 A: No, sir.

Q: So had he been questioned about
marijuana?

A: Yes.

In view of the officer's statement to Kelly that he would search

the vehicle because he smelled marijuana and the officer's

interrogation of Kelly about marijuana, the evidence provides

ample bases for Kelly to believe the officers found marijuana

and to preemptively declare the marijuana was not his.

This evidence proved only suspicious circumstances because

of Kelly's proximity to the duffel bag. Inferences that are

drawn from these suspicious circumstances alone are not

sufficient to prove knowing possession of a controlled

substance. No evidence proved that Kelly knew the controlled

substances were in the bag before the officer opened it and

arrested him. "Evidence merely that the accused was in the

proximity of controlled substances is insufficient . . . to

prove that the accused was aware of the presence and character

of a controlled substance." Jones, 17 Va. App. at 574, 439

S.E.2d at 864.

Even if it is probable that the marijuana belonged to

Kelly, probability of guilt is insufficient to warrant a

criminal conviction. Crisman, 197 Va. at 21, 87 S.E.2d at 799.

Because "the evidence must establish the guilt of an accused

beyond a reasonable doubt . . . [,] guilt . . . is not to be

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inferred because the facts are consistent with his guilt, but

they must be inconsistent with his innocence." Cameron v.

Commonwealth, 211 Va. 108, 110-11, 175 S.E.2d 275, 276 (1970).

Suspicious circumstances "'no matter how grave or strong, are

not proof of guilt sufficient to support a verdict of guilty.

The actual commission of the crime by the accused must be shown

by evidence beyond a reasonable doubt to sustain his

conviction.'" Crisman, 197 Va. at 21, 87 S.E.2d at 799 (quoting

Powers v. Commonwealth, 182 Va. 669, 676, 30 S.E.2d 22, 25

(1944)).

For these reasons, I would reverse both convictions.

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