## Facts

- Police stopped a vehicle driven by Samuel A. Ervin in Portsmouth, Virginia, at night after a traffic violation; Ervin was the sole occupant.
- Officers detected a strong odor of marijuana coming from the vehicle’s open windows as they approached.
- Ervin produced a driver’s license that was suspended but did not produce the vehicle registration and stated the vehicle was not his; he did not attempt to locate the registration or assist officers.
- After arresting Ervin for driving on a suspended license, officers searched the vehicle for the source of the marijuana odor and for the registration.
- Using the ignition key, an officer unlocked the glove compartment and immediately found two large zipper bags containing a total of 23 smaller baggies of marijuana (13 in one, 10 in the other), valued at about $200.
- The car was borrowed; its owner regularly lent it to various people.
- Ervin denied the marijuana was his and gave equivocal testimony about recognizing the smell of marijuana.
- An expert testified that the quantity and individual packaging were consistent with distribution rather than personal use.

## Issues

1. Whether the evidence was sufficient to prove Ervin constructively possessed the marijuana with knowledge of its presence and character.
2. Whether the evidence was sufficient to prove Ervin possessed the marijuana with intent to distribute.

## Decision

- The Court of Appeals of Virginia (en banc) affirmed the conviction for possession of marijuana with intent to distribute.
- The court held the evidence permitted a rational factfinder to infer Ervin’s dominion and control over the vehicle and guilty knowledge of the marijuana.
- The court held the quantity, packaging into 23 small baggies, and expert testimony supported an inference of intent to distribute.
- The court rejected the argument that the Commonwealth had to negate every possibility that another user of the borrowed car placed the marijuana in the glove compartment.

## Legal Principles

- On sufficiency review, appellate courts view the evidence in the light most favorable to the Commonwealth as the prevailing party at trial.
- Constructive possession may be shown by dominion and control plus circumstances indicating awareness of the presence and character of the contraband; guilty knowledge may be proved by circumstantial evidence and reasonable inferences from the whole record.
- The factfinder may infer consciousness of guilt from false, evasive, or implausible statements and may disbelieve a defendant’s testimony.
- In evaluating circumstantial evidence, the Commonwealth need only exclude reasonable hypotheses of innocence arising from the evidence; whether an alternative hypothesis is reasonable is a factual determination for the factfinder.
- Intent to distribute may be inferred from quantity, packaging, and expert testimony distinguishing distribution from personal use.

## Conclusion

The en banc court upheld Ervin’s conviction because the combined circumstances—strong marijuana odor, his sole occupancy and access to the glove compartment, his conduct during the stop, and the distribution-style packaging—supported findings of constructive possession with guilty knowledge and intent to distribute.


Ervin v. Commonwealth, 57 Va. App. 495, 704 S.E.2d 135 (Ct. App. Va. 2011) (en banc)