Hunley v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Bumgardner and Frank
Argued at Richmond, Virginia

QUINTON LAZARR HUNLEY
OPINION BY
v. Record No. 0285-98-2 JUDGE RUDOLPH BUMGARDNER, III
SEPTEMBER 7, 1999
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF HENRICO COUNTY
James E. Kulp, Judge

Michael N. Herring (Stephen W. Bricker &
Associates, on brief), for appellant.

Daniel J. Munroe, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.

Quinton Lazarr Hunley appeals his conviction of possession

of cocaine with intent to distribute in violation of Code

§ 18.2-248. He contends the evidence was insufficient to prove

that he knowingly and intentionally possessed the cocaine. We

conclude that the evidence was sufficient to establish that

fact. Accordingly, we affirm his conviction.

On appeal, we view the evidence in the light most favorable

to the Commonwealth, granting to it all reasonable inferences

fairly deducible therefrom. See Higginbotham v. Commonwealth,

216 Va. 349, 352, 218 S.E.2d 534, 537 (1975). This Court does

not substitute its judgment for that of the trier of fact, see

Cable v. Commonwealth, 243 Va. 236, 239, 415 S.E.2d 218, 220
(1992), and the trial court's judgment will not be set aside

unless plainly wrong or without evidence to support it. See

Commonwealth v. Jenkins, 255 Va. 516, 520, 499 S.E.2d 263, 265

(1998).

So viewed, the evidence established that state police

officers were interdicting narcotics traffic at the Amtrak

station in Henrico County. The officers had received

information from New York that two individuals, a male and

female, had purchased one-way tickets to Richmond only ten

minutes before departing. The officers looked for abnormal

behavior by a couple disembarking the train from New York.

Investigator Irwin saw that the defendant and codefendant,

Celestine Yancy, quickly exited the crowded train, walked

side-by-side through the crowd faster than the other travelers,

and always looked straight ahead. Their very quick pace, lack

of conversation, and straight-ahead focus attracted Irwin’s

attention. One officer described Yancy as "determined to get

through the building."

Irwin followed the two through the terminal and approached

them in the parking lot. Sergeant McLean accompanied him

outside. The defendant carried a brown and gold tote bag at all

times. Yancy carried a leather satchel and a red, white and

blue cloth zippered bag. As they exited the terminal, Yancy

handed the defendant the red, white and blue bag. Irwin

identified himself, announced that he was interdicting narcotics

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and firearms traffic into Richmond, and asked if they would

cooperate in his efforts. Both said, "yes," but Yancy "became

visibly, very visibly afraid or scared at that point. She was

trembling. Her speech was . . . very low and somewhat

stumbling." Irwin told the two that he was not arresting or

detaining them but asked if they would be willing to answer some

questions. They indicated they were willing to cooperate.

Irwin first asked if he could see their train ticket

receipts. The defendant looked at Yancy, searched his pockets,

but did not find their tickets. Yancy made no attempt to search

for the tickets. The two produced identification when Irwin

asked for it, and Yancy volunteered that they had arrived from

New York. When asked if the bags they were carrying belonged to

them, the defendant stated, "they're our bags." The two

suspects denied carrying drugs or guns. Irwin then asked

consent to search the bags. When Yancy indicated that she felt

he was interfering with her rights, Irwin reiterated that they

were not under arrest. Yancy consented to a search but stated,

"I really don't want you going through my bags, but I will show

you what's in the bags."

Yancy took the red, white and blue bag back from the

defendant, unzipped it, and started moving the contents around.

McLean saw two shoeboxes for children's hiking boots, which

Yancy indicated were for her children. He also saw a new pair

of boots loose in the bag, but both boxes appeared to have

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weight in them despite the fact that one pair was not in its

box. McLean told Yancy that he appreciated her showing them the

contents, but for officers' safety he preferred to search the

bag himself.

The group moved to a less conspicuous location in the

parking lot near a truck when the defendant said he was

embarrassed by being searched in the middle of the lot. Yancy

zipped up the red, white and blue bag, and the defendant carried

both it and the brown and gold bag toward the truck. As they

walked toward it, Yancey remarked, "they even know what kind of

truck we drive."

Irwin asked permission to pat-down both suspects for

weapons. While female Agent McCaffey patted down Yancy, Irwin

kneeled down in front of the defendant's brown and gold bag. He

looked up at the defendant while kneeling over the bag and asked

if he could search. Yancy said "yes"; the defendant with his

"head hung down" said, "go for it. You're just doing your job."

Irwin unzipped the brown and gold bag and under a blanket saw

what appeared to be a black garbage bag. He reached in the tote

bag and felt two hard, rectangular objects in the garbage bag.

Irwin pulled out the garbage bag, which was knotted, and laid it

on top of the tote bag. He asked the defendant for permission

to untie the knot. The defendant again said, "go for it, you're

just doing your job." Irwin retrieved two six-by-two inch

rectangular blocks wrapped in gray duct tape. Though he could

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not see in the packages, Irwin thought the blocks were drugs

because the wrapping was consistent with illegal narcotics

packaging.

As Irwin held up the two rectangular objects, but without

indicating his suspicion that they were drugs, the defendant

gave a "very deep sigh" and shook his head. Irwin then

announced that he believed the bricks were cocaine. The

officers arrested both suspects, handcuffed them, and escorted

them to an office in the station for further investigation. A

field test indicated that the items were in fact cocaine, and,

at that point, Yancy volunteered, "It's mine." One of the

shoeboxes in the red, white and blue bag contained a third

brick. In total, the drugs weighed 6.6 pounds.

During the search incident to arrest, the officers

recovered from the defendant a small amount of currency, a

pager, and two train ticket stubs from New York to Richmond.

The ticket stubs were in his pocket but were issued in the name

of Delores Russell Anne. Neither the defendant nor Yancy

possessed identification in that name. A cellular telephone and

$2,000 in small bills were found in Yancy's leather satchel. An

expert testified that the cell phone and pager were significant

in the presence of the drugs because drug dealers often use them

in conducting their business. He also stated that 6.6 pounds of

drugs is inconsistent with personal use and New York is a source

city for contraband entering Richmond.

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 The defendant's sole contention on appeal is that the

evidence failed to establish that he was aware of the presence

of the cocaine inside the brown and gold bag or that he was

aware of its nature and character. He contends that Yancy's

statement of ownership of the drugs and the evidence of the

$2,000 cash in her possession rebutted the inference of

knowledge, which arose from his possession of the cocaine. We

disagree.

To convict the defendant of possession of cocaine, the

Commonwealth must show that the "defendant was aware of the

presence and character of the particular substance and was

intentionally and consciously in possession of it. Physical

possession giving the defendant 'immediate and exclusive

control' is sufficient. However, possession need not always be

exclusive. The defendant may share it with one or more. The

duration of the possession is immaterial . . . ." Ritter v.

Commonwealth, 210 Va. 732, 741, 173 S.E.2d 799, 805-06 (1970).

"Possession of a controlled substance gives rise to an inference

of the defendant's knowledge of its character." Josephs v.

Commonwealth, 10 Va. App. 87, 101, 390 S.E.2d 491, 498-99 (1990)

(en banc) (citation omitted). See Woodson v. Commonwealth, 245

Va. 401, 406, 429 S.E.2d 27, 30 (1993); Gillis v. Commonwealth,

215 Va. 298, 208 S.E.2d 768 (1974). Knowledge may also be

proven "by evidence of acts, declarations or conduct of the

accused from which the inference may be fairly drawn that he

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knew of the existence of the narcotics at the place where they

were found." Ritter, 210 Va. at 741, 173 S.E.2d at 805-06

(citation omitted).

Viewing the evidence and all reasonable inferences in the

light most favorable to the Commonwealth, we hold that the

defendant knowingly and intentionally possessed the cocaine

seized from his bag. The defendant acted suspiciously as he and

his companion disembarked a train from New York, a known source

for drugs. The two walked very quickly from the train through

the crowd to the parking lot. The train ticket stubs, which the

defendant said he could not find, were later discovered on his

person but in a false name.

The defendant stated, "these are our bags." At all times,

the defendant was in exclusive possession of, and asserted

authority over, the brown and gold tote bag. Officer Irwin

asked the defendant for consent to search the brown and gold bag

and for permission to untie the knot in the garbage bag. Both

times the defendant consented. As the bricks of cocaine were

discovered, the defendant, with his head hung down, gave a deep

sigh, and shook his head. The facts and circumstances

surrounding the defendant’s response support as reasonable the

inference that showed the defendant knew exactly what the police

were discovering.

The defendant claims that an innocent inference could also

arise from his response. However, when the trier of fact

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accepted an inference favorable to the Commonwealth and the

inference was reasonable and justified by the evidence, an

appellate court is not at liberty to adopt the opposite

inference. An appellate court 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 favorable inferences to be drawn therefrom." Parks v.

Commonwealth, 221 Va. 492, 497, 270 S.E.2d 755, 759 (1980)

(emphasis in original). "[T]he inferences to be drawn from

proved facts are within the province of . . . the court . . . ,

so long as they are reasonable and justified. . . . That it is

possible to surmise or imagine that [the accused] had some other

purpose different from that found by the [court] is not enough

to overcome [its] . . . reasonable and justified conclusion

. . . ." Johnson v. Commonwealth, 209 Va. 291, 295, 163 S.E.2d

570, 574 (1968) (citations omitted).

The defendant asserts that Yancy's claim of ownership was

controlling on the issue of knowledge and intent. Yancy made

this statement after the officers had formally arrested the two

and had field tested the cocaine. Her claim of ownership was

not the only evidence of knowledge and intent. Yancy's claim

neither refuted the other evidence that the defendant knew drugs

were in his bag nor contradicted an inference that the two acted

jointly in transporting the drugs. The fact finder was entitled

to disbelieve any or all testimony of the witnesses. See

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Bridgeman v. Commonwealth, 3 Va. App. 523, 528, 351 S.E.2d 598,

601 (1986) (the credibility of the witnesses and the weight to

be accorded their testimony are matters solely for the fact

finder who can accept or reject the testimony in whole or in

part).

The Commonwealth proved beyond a reasonable doubt that the

defendant possessed the bag and knew the drugs were inside it.

Accordingly, we affirm the conviction.

Affirmed.

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Benton, J., dissenting.

In Burton v. Commonwealth, 215 Va. 711, 213 S.E.2d 757

(1975), the police were alerted by an informer that illegal

drugs would be delivered to a jail inmate. When the accused

brought a bag of clothing to the inmate, the officers searched

the bag and located the drugs. In reversing the conviction of

the accused for distribution of drugs, the Supreme Court

reiterated the following legal standard for proof of possession:

Although the Commonwealth established that
the defendant was in possession of the
drugs, it was not established beyond a
reasonable doubt that she was knowingly and
intentionally in possession. In Buono v.
Commonwealth, 213 Va. 475, 476, 193 S.E.2d
798, 799 (1973), we held:

"To establish 'possession' in a legal sense
it is not sufficient to simply show actual
or constructive possession of the drug by
the defendant. The Commonwealth must also
establish that the defendant intentionally
and consciously possessed it with knowledge
of its nature and character."

The evidence does not exclude all
reasonable conclusions inconsistent with
that of defendant's guilt. It does not
overcome the presumption of innocence to
which she is entitled.

Burton, 215 Va. at 713, 213 S.E.2d at 758-59 (citation omitted).

The evidence in this case is equally deficient.

Distilled to its basic elements, the evidence in this case

proved Quinton Lazarr Hunley and Celestine Viola Yancy deboarded

the train from New York at the Amtrak train station in Henrico

County. The police officers who were at the station were unable

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to identify the luggage each was carrying as they deboarded the

train because the crowd obstructed the officers' view below the

waist. As Hunley and Yancy walked along the loading platform

and through the terminal, each appeared to be carrying luggage.

They had three pieces of luggage, which were described as a

large leather "purse or satchel-type bag," a "brown and gold

tote-type bag" and a red, white and blue cloth or fabric

textured bag. At various times as they walked along the loading

platform, Yancy carried both the brown leather purse and the

red, white and blue luggage.

Several police officers approached them in the middle of

the parking lot. Hunley then was carrying the brown and gold

luggage as well as the red, white and blue luggage. Although

the officers had previously seen Yancy carrying the red, white

and blue luggage, she then was carrying only the leather purse.

Officer Irwin told them the officers were working to prevent the

flow of illegal drugs and firearms into the Richmond area, told

them they were not under arrest, and asked if they were willing

to answer some questions. They said, "yes"; however, Yancy

became "visibly, very visibly afraid or scared at that point.

She was trembling. Her speech was . . . very low and somewhat

stumbling."

Hunley produced a Virginia driver's license, and Yancy

produced a college identification card. Officer Irwin testified

that when he asked, "if these [are] ya'll's bags," Hunley

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responded, "they're our bags." Officer Irwin admitted, however,

that it was not until the morning of the preliminary hearing in

the general district court that he wrote on the back of his

sheet of typewritten notes the reference attributing to Hunley

the statement, "they're our bags." The notes he made

immediately after the encounter do not contain this reference.

No other person attributed that statement to Hunley.

Officer Irwin then requested consent to search the contents

of the luggage. He did not ask either Yancy or Hunley to

identify which luggage belonged to whom. Yancy protested that

she did not understand why she and Hunley had been singled out,

and said she felt her rights were being violated. Yancy then

said, "Well, I really don't want you going through my bags, but

I will show you what's in the bags." Hunley made no statements

concerning the search of the luggage. Yancy then opened the

red, white and blue luggage that she and Hunley both had carried

and began to move around the contents. Officer McLean testified

that he observed children's shoeboxes and shoes.

Officer McLean told Yancy he would prefer to search the bag

himself and indicated a concern for the officers' safety. In

response to Hunley's comment that he felt embarrassed being

detained in the middle of the parking lot, Officer Irwin said,

"would you mind stepping over behind this truck." Yancy then

closed the red, white and blue luggage. Hunley moved the red,

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white and blue luggage and the brown and gold luggage to the

area behind the truck. Yancy carried the leather purse.

After they moved from the middle of the parking lot,

Officer Irwin repeated his request for consent to search the

luggage. Yancy responded, "yes." Hunley said, "go for it,

you're just doing your job." Officer Irwin unzipped the brown

and gold luggage, extended his hand under a blanket inside the

luggage, and removed a sealed, knotted, opaque, dark-brown

plastic bag. Officer Irwin testified that when he requested

permission to untie the knot, Hunley again replied, "You are

just doing your job, go ahead." Officer Irwin removed two

rectangular-shaped objects completely wrapped in opaque,

gray-colored tape that he believed to be packaging consistent

with narcotics. Officer Irwin said that when he lifted the two

wrapped, rectangular-shaped objects, Hunley sighed deeply and

shook his head.

The officers then handcuffed Hunley and Yancy and took them

to an office in the train station. Inside the office, Officer

McLean "field tested" the substance in one of the

rectangular-shaped objects. After the test indicated the

substance was cocaine, the officers arrested Hunley and Yancy

for possession of the cocaine. Yancy then said, "It's mine."

Hunley said nothing. At no time did Hunley verbally or by

conduct acknowledge possession or awareness of the concealed and

carefully packaged cocaine.

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 After Yancy made her admission, the officers searched the

red, white and blue luggage. In a child's shoebox, the officers

found a third rectangular-shaped object of similar size and

packaging to the two objects recovered from the brown and gold

luggage. Later, when searching Hunley's person, the officers

recovered a pair of train ticket stubs, a digital pager, and

$33.70 in U.S. currency. The officers recovered from Yancy's

person a cellular telephone and $44 in U.S. currency. In

Yancy's leather purse, the officers recovered a "Signet Bank"

bag containing $2,000 in currency and various small sheets of

paper with names and dollar figures written beside them.

The evidence proved that Hunley had no illegal drugs on his

person. As in Burton, mere proof that Hunley had a bag of

clothing containing an illegal drug is insufficient to prove

that he "'intentionally and consciously possessed [the enclosed

opaque packages of drugs] with knowledge of its nature and

character.'" 215 Va. at 713, 213 S.E.2d at 759 (citation

omitted).

[W]ell established principles apply to
testing the sufficiency of circumstantial
evidence. In LaPrade v. Commonwealth, 191
Va. 410, 418, 61 S.E.2d 313, 316 (1950),
[the Supreme Court] summarized those
principles as follows:

". . . [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

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 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. . . ."

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).

Hunley made no statements and committed no acts that tend

to prove he was aware of the presence or character of the items

in the luggage. Recognizing the dearth of evidence, the

Commonwealth asserts as a bald proposition that Hunley's "deep

sigh" and "shaking of the head" as his head dropped are conduct

which "suggests that [Hunley] was fully aware of the nature and

character of the cocaine which the [officer] had found." The

evidence undisputably proved, however, that the officers had

earlier announced that they were looking for illegal drugs.

Hunley's reaction, which was not seen by the trial judge but was

described by the officer's testimony, clearly is consistent with

a reaction of disbelief and dismay that he unknowingly was

carrying opaque wrapped packages inside the luggage.

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 In Behrens v. Commonwealth, 3 Va. App. 131, 137, 348 S.E.2d

430, 434 (1986), the Commonwealth argued that awareness of

cocaine may be inferred from an accused's "failure to show

surprise." We rejected that simplistic analysis. See id. The

Commonwealth now seeks to resurrect that argument by pointing to

a reaction, even one that shows dismay, as indicative of

"aware[ness] of the nature and character of the cocaine which

the [officer] had found." The Commonwealth apparently believes

any reaction will suffice to establish guilt. The notion that

Hunley's sigh and drop of his shaking head proved that he

intentionally and consciously possessed the cocaine in the

opaque bag inside the luggage with knowledge of its nature and

character is rank speculation. "The conviction of the accused

depends upon a mere guess, or at least upon the arbitrary

adoption of an interpretation of the evidence which incriminates

the accused, when the evidence is equally consistent with his

innocence." Henderson v. Commonwealth, 130 Va. 761, 767, 107

S.E. 700, 702 (1921). A conviction founded upon that analysis

"cannot be sustained." Id.

In upholding this conviction, the majority disregards all

inferences of innocence that flow from the evidence after

viewing the evidence in the light most favorable to the

Commonwealth. I disagree with that analysis. In our role on

appellate review, we are required to defer to the fact finder's

role in weighing the evidence. Thus, on appeal we must assume

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that the fact finder found most persuasive the evidence that

favored the conviction. Once we defer to that role of the fact

finder, by viewing the evidence in the light most favorable to

the Commonwealth, we must then consider all the reasonable

inferences that flow from that evidence. See Higginbotham v.

Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975).

An inference is a conclusion which may be drawn from the

evidence by a process of logic and reason. See Ryan v. Maryland

Casualty Co., 173 Va. 57, 61, 3 S.E.2d 416, 418 (1939); Morton

v. Commonwealth, 13 Va. App. 6, 9-10, 408 S.E.2d 583, 584-85

(1991). We do not limit our consideration just to those

inferences that favor guilt and disregard the inferences that

favor innocence.

It is well settled in Virginia that to
justify conviction of a crime, it is not
sufficient to create a suspicion or
probability of guilt, but the evidence must
establish the guilt of an accused beyond a
reasonable doubt. It must exclude every
reasonable hypothesis except that of guilt.
The guilt of a party 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) (citations omitted) (emphasis added).

We accept, as we must, the fact finder's role in

determining credibility and accept the resolution of credibility

issues in favor of sustaining the verdict; we then must

determine what reasonable inferences flow from the accepted

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evidence. Whether an inference may be reasonably drawn from the

accepted evidence is a matter of logic and reason; it is not a

matter of determining whether to believe a witness' testimony.

When we view the evidence in the light most favorable to the

Commonwealth, we accept the fact finder's determination of the

believability of the witness. In judging whether an inference

reasonably flows from that evidence, no rule of law or logic

requires that we find an inference to be unreasonable solely

because it favors a defendant's theory of the case.

In our capacity as appellate judges, we do not abandon our

obligation to scrutinize whether the evidence, so viewed,

rationally supports the verdict of guilt beyond a reasonable

doubt. See Jackson v. Virginia, 443 U.S. 307, 315-16 (1979); In

re Winship, 397 U.S. 358, 364 (1970). Thus, we must follow the

long-standing rule in Virginia that "where the evidence leaves

it indefinite which of several hypotheses is true, or

establishes only some finite probability in favor of one

hypothesis, such evidence cannot amount to proof [beyond a

reasonable doubt], however great the probability may be."

Massie v. Commonwealth, 140 Va. 557, 565, 125 S.E. 146, 148

(1924). Those hypotheses may flow from inferences. We are not

at liberty to discard a hypothesis of innocence when it arises

from an inference flowing from evidence viewed in the light most

favorable to the Commonwealth.

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 If on appeal we accept only the inferences that favor the

Commonwealth and discard all others (i.e., all reasonable

inferences that favor the defendant after viewing the evidence

in the light most favorable to the Commonwealth), we fail to

perform our constitutional obligation to ensure that the

evidence which supports a conviction rises to the standard of

proof beyond a reasonable doubt. See Jackson, 443 U.S. at

318-19. We have clearly stated that "[w]here an inference

supporting guilt is no more likely to arise from a proven fact

than one favoring innocence, the inference of guilt is

impermissible." Morton, 13 Va. App. at 11, 408 S.E.2d at 586.

Indeed, it is well established that "where a fact which is

equally susceptible of two interpretations, one of which is

consistent with the interpretation of the accused, . . . the

[fact finder may not] arbitrarily adopt that interpretation

which incriminates [the accused]." Smith v. Commonwealth, 185

Va. 800, 820, 40 S.E.2d 273, 282 (1946).

I respectfully suggest that some of the confusion on this

issue derives from statements found in cases decided by our

Supreme Court. In Crisman v. Commonwealth, 197 Va. 17, 18, 87

S.E.2d 796, 797 (1955), and other cases, the Supreme Court

stated the standard of review as follows: "When the sufficiency

of the evidence is challenged after conviction it is our duty to

view it in the light most favorable to the Commonwealth,

granting all reasonable inferences fairly deducible therefrom."

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See also e.g. Beavers v. Commonwealth, 245 Va. 268, 281-82, 427

S.E.2d 411, 414 (1993); Cameron, 211 Va. at 110, 175 S.E.2d at

276; Allison v. Commonwealth, 207 Va. 810, 811, 153 S.E.2d 201,

202 (1967). In Higginbotham and other cases, the Supreme Court

has used another variation of that standard, which states the

same proposition as follows: "Where the sufficiency of the

evidence is challenged after conviction, it is our duty to

consider it in the light most favorable to the Commonwealth and

give it all reasonable inferences fairly deducible therefrom."

216 Va. at 352, 218 S.E.2d at 537. See also Horton v.

Commonwealth, 255 Va. 606, 608, 499 S.E.2d 258, 259 (1998);

Boykins v. Commonwealth, 210 Va. 309, 311, 170 S.E.2d 771, 773

(1969). However, the Supreme Court has also stated the

following: "[W]hen the sufficiency of the evidence is

challenged on appeal, the evidence and all reasonable inferences

fairly drawn therefrom must be viewed in the light most

favorable to the Commonwealth." Tuggle v. Commonwealth, 228 Va.

493, 510, 323 S.E.2d 539, 549 (1984), judgment vacated and

remanded, 471 U.S. 1096 (1985); Hopkins v. Commonwealth, 230 Va.

280, 294, 337 S.E.2d 264, 273 (1985); Graham v. Commonwealth,

250 Va. 79, 81, 459 S.E.2d 97, 98 (1995). In my view, a

significant difference exists between this last statement and

the first two statements. The last statement of the standard is

not the same semantic proposition as the first and second

statements.

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 Viewing the evidence and the inferences in the light most

favorable to the prevailing party, while discarding the

inferences favoring the accused that flow from evidence viewed

in the light most favorable to the Commonwealth, violates well

established principles. As the Supreme Court recently stated:

"'It is our duty to regard as true all the
credible evidence favorable to the
Commonwealth and all fair inferences to be
drawn therefrom. When such evidence leads
to the conclusion of guilt beyond a
reasonable doubt, and excludes every
reasonable hypothesis of innocence, [only
then is it] sufficient to support a finding
of guilt.'"

Tyler v. Commonwealth, 254 Va. 162, 165, 487 S.E.2d 221, 223

(1997) (citation omitted) (emphasis added). Any other method

leaves appellate courts with little choice but to affirm in toto

all convictions based on circumstantial evidence. We would

"rubber stamp" convictions in violation of our mandate to ensure

that no conviction stands unless guilt has been proved beyond a

reasonable doubt.

No evidence in this record "establish[ed] 'possession' in a

legal sense [because] it is not sufficient to simply show actual

or constructive possession of the drug by the defendant."

Burton, 215 Va. at 713, 213 S.E.2d at 759 (citation omitted).

The majority avoids that conclusion by accepting an inference of

guilt and discarding the inference of innocence that flows from

Hunley's reaction to the officers' discovery of wrapped, taped

opaque packages in the luggage he was carrying. The inference

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to be drawn from the proved evidence is a significant event in

the chain of analysis because the evidence clearly proved that

the luggage that Yancy unambiguously claimed to be her own (the

red, white and blue luggage) was later found to contain a

package of cocaine wrapped identically to those contained in the

brown luggage. Indeed, the evidence also proved that Yancy

acknowledged that the cocaine in the brown and gold luggage was

hers.

I would reverse Hunley's conviction because the proof was

insufficient to establish beyond a reasonable doubt that he

intentionally and consciously possessed the wrapped opaque

packages in the luggage with knowledge of its nature and

character. I dissent.

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