Commonwealth v. Wilkerson

• Court: Supreme Court of Virginia
• Decided: February 20, 2025
• Docket: 1230914
• Status: Published

Opinion

PRESENT: All the Justices

COMMONWEALTH OF VIRGINIA OPINION BY v. Record No. 230914 CHIEF JUSTICE S. BERNARD GOODWYN February 20, 2025 JEROME LEE WILKERSON

FROM THE COURT OF APPEALS OF VIRGINIA

In this appeal, we consider whether the Court of Appeals erred in determining that the

evidence presented at trial was insufficient to sustain a conviction for possession of a controlled

substance.

I. BACKGROUND

On February 20, 2020, Sergeant Hoggard of the Norfolk Sherriff’s Office received

information that there was cocaine in cell block 2K of the Norfolk City Jail. After the inmates

were all secured in one area, Sergeant Hoggard and a team searched cell block 2K with a

narcotics-detecting canine.

At the time of the search, there were between 30 and 40 inmates residing in cell block

2K, which had room for up to 144 inmates. The cell block had an open “day room” with tables

and chairs, and also had twelve “huts,” which were separate sections that could be locked down

independently. Each hut contained twelve bunks. At the time of the search, about four inmates

were using hut number one for sleeping, including Jerome Lee Wilkerson.

When the team searched hut number one, the canine alerted to a personal property bag

which was located on Wilkerson’s bunk. The search revealed that the bag contained two rolls of

toilet paper and “assorted paperwork bearing [Wilkerson’s] name,” including a medical form.

Hidden inside one of the toilet paper rolls was a plastic bag with a white powder substance in it;

the substance was later confirmed to be 1.03 grams of powder cocaine. Sergeant Hoggard spoke with Wilkerson in Sergeant Hoggard’s office. During that

conversation, Wilkerson acknowledged that the property bag belonged to him, but denied

knowing about any powder substance in it. Sergeant Hoggard then asked if anyone else ever got

into Wilkerson’s property bag, to which Wilkerson responded: “F**k no. Ain’t no one goes into

[] my bag. I watch my bag. They know better. I check my bag every 15 minutes.” Sergeant

Hoggard did not ask any further questions about how Wilkerson checked his bag.

Wilkerson was charged in the Circuit Court for the City of Norfolk with knowingly or

intentionally possessing a controlled substance in violation of Code § 18.2-250.

At the bench trial, Sergeant Hoggard testified that hut number one was the place where

Wilkerson “had been observed sleeping and relaxing before.” Sergeant Hoggard said that

Wilkerson appeared to be the only person using the bunk bed where his property bag was found.

Sergeant Hoggard explained that inmates could keep their property bags at all times in

their assigned cell blocks, but were required to leave their bags in their cell blocks whenever they

went somewhere else, such as instances when they had to attend court, conference with an

attorney, or receive medical care. Sergeant Hoggard testified that the doors of the huts were

“primarily kept open” and would be closed if there were a lockdown or other issue in the cell

block. Sergeant Hoggard stated that anybody in the cell block “would have access” to any of the

huts.

Sergeant Hoggard did not know the occasion upon which Wilkerson had last left cell

block 2K before the search. He explained that the sheriff’s office is supposed to log inmates in

and out of the cell block, and that he did not have those records with him, but that he had

reviewed surveillance video footage of cell block 2K to “determine if anybody went near that

area.” When the Commonwealth asked a follow up question about the surveillance video,

2 Wilkerson’s counsel objected to any additional testimony related to the video footage on the

basis of hearsay and not having been provided any video footage through discovery. The

Commonwealth acknowledged that the video had not been provided to him either and agreed to

“leave it alone.” No additional testimony regarding the surveillance video was elicited.

After the Commonwealth rested, Wilkerson moved to strike, arguing that the

Commonwealth had failed to prove that he had knowledge of the cocaine, since anyone in the

cell block had access to the hut where Wilkerson’s bag was found. The circuit court denied

Wilkerson’s motion to strike.

Wilkerson offered no evidence. He then renewed his motion to strike. In denying

Wilkerson’s renewed motion to strike, the circuit court stated: “I think but for the statement to

Sergeant Hoggard, you might have something, but I think the statement to Sergeant Hoggard

makes the case.” The circuit court found Wilkerson guilty of possessing a controlled substance

and sentenced him to nine months’ incarceration.

Wilkerson appealed to the Court of Appeals, which reversed his conviction in an

unpublished opinion. Wilkerson v. Commonwealth, No. 1385-22-1, 2023 Va. App. LEXIS 694,

at *1 (Oct. 17, 2023) (unpublished). The Court of Appeals stated that the circuit court’s reliance

on Wilkerson’s statement regarding no one else going into his bag was “problematic,” explaining

that the statement was not a confession and that “without more,” the statement could not prove

that Wilkerson knowingly possessed the cocaine. Id. at *6-7.

The Court of Appeals noted that the part of Wilkerson’s statement that he checked his

bag every 15 minutes “showed the evident concern . . . for the ease with which fellow inmates

could readily access it,” and further noted that if Wilkerson were out of the cell block, he would

not be able to check his bag. Id. at *7. The Court of Appeals stated that “[n]otwithstanding

3 Wilkerson’s admission that he checked his bag every 15 minutes, there is no evidence that he did

so, or that Wilkerson was with his bag immediately preceding the lockdown,” nor any evidence

“that Wilkerson was in his cell block immediately prior to the search”; there was only evidence

that Wilkerson had been there at some time “before” the search. Id. at *8-9.

The Court of Appeals found it notable that “although it was available, the

Commonwealth did not introduce surveillance video evidence of Wilkerson on his bunk or in his

hut prior to the search,” and thus “Sergeant Hoggard’s testimony that Wilkerson was in his hut

‘before’ supplies no useable inferences to support the finding that Wilkerson had conscious

knowledge of the presence, nature, and character” of the cocaine. Id. at *10. The Court of

Appeals concluded that “Wilkerson’s admission of occupancy and ownership of a jail bunk and

property bag accessible to the general jail population, without more, was insufficient to show

conscious knowledge of the presence, nature, and character of the cocaine,” and thus “the

evidence was insufficient to prove Wilkerson guilty beyond a reasonable doubt.” Id. at *12.

The Commonwealth appealed to this Court. We granted one assignment of error: “The

Court of Appeals erred when it found the evidence was insufficient to sustain appellant’s

conviction for possession of controlled substances.”

II. ANALYSIS

The Commonwealth argues that there was sufficient evidence before the circuit court to

support the finding that Wilkerson knowingly possessed the cocaine found in his property bag

which was on his bunk. It asserts that the Court of Appeals failed to view this evidence

collectively and in the light most favorable to the Commonwealth, and failed to give proper

deference to the circuit court’s factual findings and reasonably-drawn inferences. The

Commonwealth further argues that the circuit court was entitled to reject Wilkerson’s hypothesis

4 of innocence—that someone else placed the drugs in Wilkerson’s roll of toilet paper in

Wilkerson’s property bag—because that hypothesis is not supported by the evidence, and further,

because Wilkerson’s own statement that he checked his bag every 15 minutes and that no one

goes into his bag, refutes that hypothesis of innocence. We agree.

As noted previously, after hearing evidence presented at trial, the circuit court found

Wilkerson guilty. We begin our analysis by considering the proper standard of appellate review

of the circuit court’s decision.

An appellate court reviews a lower court’s findings of fact “with the highest degree of

appellate deference.” Commonwealth v. Barney, 302 Va. 84, 96 (2023) (citation omitted).

“[T]he judgment of the trial court is presumed correct and will not be disturbed unless it is

plainly wrong or without evidence to support it.” Commonwealth v. Garrick, 303 Va. 176, 182

(2024) (internal quotation marks omitted). Thus, when reviewing whether the evidence was

sufficient to convict a defendant of a criminal offense, an appellate court has a “limited” role,

and “[t]he only relevant question is . . . whether any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.” Id. (internal quotation marks

omitted).

An appellate court must “review the evidence in the light most favorable to the

Commonwealth, the prevailing party in the trial court,” and must “accord the Commonwealth the

benefit of all reasonable inferences deducible from the evidence” in making its determination.

Id. (citations omitted). Reasonable inferences drawn by the factfinder “cannot be upended on

appeal unless we deem them so attenuated that they push into the realm of non sequitur.”

Commonwealth v. Perkins, 295 Va. 323, 332 (2018) (internal quotation marks omitted).

5 Code § 18.2-250 makes it a criminal offense “for any person knowingly or intentionally

to possess a controlled substance.” To prove a possession offense, the Commonwealth must

“produce evidence sufficient to allow a rational factfinder to conclude beyond a reasonable doubt

that the defendant intentionally and consciously possessed the contraband with knowledge of its

nature and character.” Garrick, 303 Va. at 183. To prove 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 contraband and that the contraband was subject to his dominion and control.” Id.

Ownership or occupancy of a place where controlled drugs are found does not create a

presumption that the person “either knowingly or intentionally possessed” the drugs. Code

§ 18.2-250(A). Further, “[m]ere proximity to a controlled drug is not sufficient to establish

dominion and control.” Drew v. Commonwealth, 230 Va. 471, 473 (1986). However, proximity

“is a circumstance probative of possession and may be considered as a factor in determining

whether the defendant possessed” an item. Bolden v. Commonwealth, 275 Va. 144, 148 (2008)

(discussing constructive possession of a firearm).

Constructive possession can be proved solely by circumstantial evidence, which is

sometimes “the only type of evidence which can possibly be produced.” Garrick, 303 Va. at

183-84 (citation omitted). “A circumstantial fact is admitted on the basis of an inference when

the inference is a probable explanation of another fact and a more probable and natural one than

other explanations, if any.” Id. at 184 (quoting Toler v. Commonwealth, 188 Va. 774, 780

(1949)).

Usually, a circumstantial fact, standing alone, “will be insufficient to establish a basis for

a conviction.” Id. Even though a “single piece of evidence may not be sufficient, the combined

6 force of many concurrent and related circumstances may lead a reasonable mind irresistibly to a

conclusion.” Id. (brackets and ellipsis omitted). Thus, “[i]n determining whether the evidence is

sufficient to permit a rational factfinder to conclude that a defendant constructively possessed an

item, ‘an appellate court must consider all the evidence admitted at trial,’” and must not view the

individual facts in isolation. Id. at 183-84 (quoting Bolden, 275 Va. at 147) (emphasis added).

“To be sufficient to support a conviction, the combined circumstances ‘must prove guilt beyond

a reasonable doubt but not beyond all doubt.’” Id. at 184 (quoting Barney, 302 Va. at 98); see

also Brown v. Commonwealth, 15 Va. App. 1, 10 (1992) (“The Commonwealth is not required to

prove that there is no possibility that someone else may have planted, discarded, abandoned or

placed the drugs” in the place where they are found.).

When all evidence to prove guilt is circumstantial, “all necessary circumstances proved

must be consistent with guilt and inconsistent with innocence.” Commonwealth v. Moseley, 293

Va. 455, 463 (2017) (quoting Commonwealth v. Smith, 259 Va. 780, 783 (2000)). This

“reasonable hypothesis of innocence” principle is “simply another way of stating that the

Commonwealth has the burden of proof beyond a reasonable doubt.” Id. at 464 (quoting

Commonwealth v. Hudson, 265 Va. 505, 513 (2003)). If the evidence supports a reasonable

hypothesis of innocence, then there exists a reasonable doubt as to the defendant’s guilt, and the

evidence cannot support a conviction. Conversely, “[w]here circumstantial evidence is sufficient

to exclude every [proffered] reasonable hypothesis of innocence, it is sufficient to support a

conviction.” Cook v. Commonwealth, 226 Va. 427, 433 (1983).

Importantly, “[t]he hypotheses [of innocence] which must be thus excluded are those

which flow from the evidence itself, and not from the imaginations of defense counsel.” Id.

(citing Turner v. Commonwealth, 218 Va. 141, 148-49 (1977)). This is not to say that the

7 defendant bears the burden of proving a reasonable hypothesis of innocence or of introducing

evidence of innocence, for the burden of proving a defendant guilty beyond a reasonable doubt

rests fully on the Commonwealth. See Hubbard v. Commonwealth, 276 Va. 292, 295 (2008)

(explaining that a criminal defendant “cannot be convicted of a crime unless the Commonwealth

meets its burden” of proving “every essential element of the charged crime beyond a reasonable

doubt”) (citation omitted). Instead, this requirement—that a reasonable hypothesis of innocence

must flow from the evidence—simply reflects the reality that a defendant’s asserted hypothesis

of innocence must be supported by at least some evidence, because if it is not, it cannot create a

“reasonable” doubt regarding the defendant’s guilt.

In any event, the question for our review on appeal is not whether there was “some

evidence” to support a defendant’s hypothesis of innocence, because the totality of the

circumstantial evidence may allow a factfinder to reject an asserted hypothesis of innocence as

unreasonable. See Moseley, 293 Va. at 464-65 (citation omitted). Instead, the “pertinent

question” on appeal is “whether a rational factfinder, in light of all the evidence, could have

rejected [the defendant’s] theories of innocence and found him guilty beyond a reasonable

doubt.” Id. (emphasis added). This is because “the factfinder ultimately remains responsible for

weighing the evidence,” and the factfinder is the one who “determines which reasonable

inferences should be drawn from the evidence, and whether to reject as unreasonable the

hypothesis of innocence advanced by a defendant.” Id. at 464 (citing Hudson, 265 Va. at 513).

Viewing the evidence under the standard of appellate review required by our precedents,

we agree with the Commonwealth that there was sufficient evidence for a rational factfinder to

conclude beyond a reasonable doubt that Wilkerson knowingly possessed the cocaine found in

his roll of toilet paper, which was in his personal bag located on his bunk.

8 Wilkerson argues that our prior decisions in Cordon and Young, in which we reversed

convictions of constructive possession, are analogous. We disagree.

In Cordon, cocaine was found inside a cooler in the home of the defendant’s uncle; the

cooler was located in a bedroom that the defendant had previously called “his.” Cordon v.

Commonwealth, 280 Va. 691, 697 (2010). We held that the evidence there was insufficient to

support a conviction for constructive possession because the defendant was not known to be at

that house for the previous two days, there was no evidence that the defendant owned the cooler,

and no other evidence linked the defendant to the cocaine. Id. The evidence in Cordon could

not “support a conclusion beyond a reasonable doubt” that the defendant “knew that cocaine was

in the cooler in the bedroom and that it was subject to his dominion and control.” Id.

In contrast with the evidence in Cordon, the evidence here shows that Wilkerson

definitively claimed ownership of the property bag where the cocaine was found and stated that

no one else accessed that bag. Wilkerson was also in hut number one at some time “before” the

search and admitted that the bunk on which his bag was found was “his” bunk. Since Wilkerson

slept in hut number one in the bunk he claimed as his, it is reasonable to infer that Wilkerson had

been there at some point during the day of the search.

This case is also distinguishable from Young. In Young, an unidentified pill was found in

the defendant’s purse, inside a prescription bottle for a different medication that had another

individual’s name on the label. Young v. Commonwealth, 275 Va. 587, 589 (2008). The officer

conducting the search did not know what the pill was; a lab analysis later identified the pill as

morphine. Id. The individual whose name was on the prescription bottle had a valid prescription

for morphine, and testified at trial that the morphine belonged to her and that she had

accidentally left the pill bottle in the defendant’s car. Id. at 590. We reversed the defendant’s

9 conviction for constructive possession, explaining that there was no evidence of any “acts,

statements or conduct” of the defendant that tended to show guilty knowledge, and further

explained that not even the officer knew what the pill was, so there was “no reason to infer that

the defendant was any better informed.” Id. at 592. Because “[t]he ambiguous circumstantial

evidence concerning the appearance of the bottle and its contents [was] as consistent with a

hypothesis of innocence as it [was] with that of guilt,” the evidence was insufficient to support

the conviction. Id.

In this case, however, there is no “ambiguous” circumstantial evidence that is equally

consistent with both Wilkerson’s guilt and Wilkerson’s hypothesis of innocence. In finding

Wilkerson guilty, the factfinder did not have to arbitrarily choose one plausible theory of events

over another, because Wilkerson’s hypothesis of innocence that someone else must have placed

the cocaine in his property bag is completely unsupported by the evidence. Wilkerson’s own

statement—that “no one goes into [] my bag. I watch my bag. They know better. I check my

bag every 15 minutes”—was credited by the factfinder; that statement actually contradicts

Wilkerson’s hypothesis that someone else placed the cocaine in his bag. There is no evidence

that anyone else had ever accessed Wilkerson’s bag. There is no evidence that Wilkerson had

been away from his bag for any length of time before the search or that anyone else had entered

hut number one soon before the search. There is no evidence that Wilkerson was not in the cell

block at any time during the day of the search. There is also no evidence that anyone else at the

jail had animosity toward Wilkerson. Further, there is no evidence that anyone else had cocaine

to get rid of when the search began, or if they did, how they would have had the opportunity to

hide their cocaine inside Wilkerson’s toilet paper roll inside his property bag without

10 Wilkerson’s knowledge, given Wilkerson’s vigilant watch over his bag. * Alternatively, if

another inmate placed their cocaine into Wilkerson’s toilet paper roll and property bag, without

knowing that a search was about to happen, they could not hope to retrieve it without

Wilkerson’s knowledge and consent, given how closely Wilkerson watched his property bag.

We conclude that a rational factfinder could reject as unreasonable Wilkerson’s

unsupported hypothesis that someone else put the cocaine in Wilkerson’s toilet paper roll that

was found in his property bag on his bunk.

We find this case more similar to Garrick, where we held that the evidence was sufficient

to support a conviction for constructive possession of contraband found in the glovebox of the

vehicle Garrick was found sleeping in. Garrick, 303 Va. at 184-85. The evidence showed that

Garrick drove the vehicle three days a week, that Garrick had paid for maintaining the vehicle,

and that the vehicle belonged to Garrick’s mother. Id. However, there was no evidence that

Garrick’s mother, or anyone else, ever drove the vehicle. Id. We explained that, “[b]y inference,

a rational factfinder could conclude from the evidence offered that Garrick was the vehicle’s

primary, if not exclusive, driver.” Id. Since the factfinder in Garrick “implicitly rejected” the

inference that Garrick’s mother drove the vehicle, we explained that it was error for the Court of

Appeals to oppositely infer that Garrick’s mother regularly used the vehicle. Id. at 186-87. We

held that the combined evidence was sufficient to allow a rational factfinder to find that Garrick

was aware of the contraband’s presence. Id. at 186.

* Wilkerson stresses the fact that the Commonwealth “could have easily presented” the available surveillance video footage of cell block 2K, or at least Sergeant Hoggard’s “summary of the footage,” that could demonstrate whether or not Wilkerson had accessed his bag shortly before the search. However, Wilkerson fails to acknowledge that his own counsel objected to the admission of any testimony related to the video footage. Regardless, we do not find that the absence of the surveillance video evidence is dispositive in this case.

11 In this case, the combined evidence was sufficient to support Wilkerson’s conviction.

The evidence showed that the cocaine was concealed within a toilet paper roll inside Wilkerson’s

property bag, and not just hastily tossed into the bag. Wilkerson claimed ownership of the

property bag, which was on Wilkerson’s bunk in hut number one. Wilkerson asserted that he

watched his bag diligently and did not let anyone else go into it. Wilkerson had been seen

sleeping and relaxing in hut number one at some time “before” the search.

The circuit court, as the factfinder, was entitled to weigh Wilkerson’s statement and

believed that the statement “makes the case.” Although the Court of Appeals believed that

Wilkerson’s statement was self-contradictory, the Court of Appeals should not have completely

discredited Wilkerson’s statement, which was evidence properly before the circuit court. See

Vasquez v. Commonwealth, 291 Va. 232, 247 (2016) (explaining that “an appellate court must

consider all the evidence admitted at trial that is contained in the record, not limiting itself to

merely the evidence that the reviewing court considers most trustworthy”) (internal quotation

marks omitted).

Through Wilkerson’s statement, the Commonwealth presented “evidence of . . .

statements . . . of the accused or other facts or circumstances” that “tend to show” that Wilkerson

knew about the presence and character of the cocaine, and that the cocaine was subject to his

dominion and control. Given the factual circumstances of how and where the cocaine was

hidden, and the lack of any evidence that someone else put the cocaine in Wilkerson’s property

bag, the inference that Wilkerson put the cocaine into the bag himself is not “so attenuated that

[it] push[es] into the realm of non sequitur,” and should therefore not be upended on appeal.

12 III. CONCLUSION

Again we emphasize that an appellate court has a limited role in such an instance as this.

When viewing the evidence in the light most favorable to the Commonwealth, and when

affording the Commonwealth the benefit of all reasonable inferences deducible from the

collective evidence, we conclude that a rational trier of fact could have found beyond a

reasonable doubt that Wilkerson knew of the presence and character of the cocaine, and that the

cocaine was subject to his dominion and control. The circuit court’s finding of guilt was not

plainly wrong or without evidence to support it. Therefore, we hold that the Court of Appeals

erred in concluding otherwise. Accordingly, we reverse the judgment of the Court of Appeals

and reinstate the judgment of the circuit court.

Reversed and final judgment.