COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, Felton and Kelsey Argued at Richmond, Virginia
JEFFREY EDWARD PORTER MEMORANDUM OPINION* BY v. Record No. 0419-04-2 JUDGE D. ARTHUR KELSEY FEBRUARY 15, 2005 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF KING GEORGE COUNTY Horace A. Revercomb, III, Judge
Elizabeth A. Trible, Assistant Public Defender, for appellant.
Alice T. Armstrong, Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.
Jeffrey Edward Porter challenges on appeal his convictions for possession of cocaine and
possession of heroin in violation of Code § 18.2-250, claiming the evidence was insufficient to
prove his guilt on either charge. We disagree and affirm.
I.
On appeal, we review the evidence in the “light most favorable” to the Commonwealth.
Commonwealth v. Hudson, 265 Va. 505, 514, 578 S.E.2d 781, 786 (2003). That principle
requires us to “‘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.’” Parks v. Commonwealth, 221 Va. 492, 498, 270
S.E.2d 755, 759 (1980) (emphasis in original and citation omitted).
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. In January 2003, Laura Painter advertised that she was renting out a room in her house
where she and her four-year-old son lived. Porter responded to the ad and soon moved in with
his girlfriend, Katherine Reilly. On two separate occasions, Painter found “dealer bags” in her
house and developed “suspicions that [Porter] was using drugs.”
When Porter was arrested on an unrelated matter in late March 2003, Painter told Porter
and Reilly they would have to move out of her house. The couple complied but left “furniture,
clothes, CDs, and almost everything they had” at Painter’s house. Over the next two weeks,
Painter called several times to ask that Porter and Reilly remove their property from her house.
About a week later, Reilly returned to the house and moved most of the items into Painter’s
garage.
After another week passed, Painter left another message warning that if they did not
retrieve their belongings by the following Monday, she “was going to start going through it and
throwing it away.” Painter returned from work Monday evening to find the garage still full of
Porter’s and Reilly’s belongings.
As she was going through the items, Painter opened a duffle bag containing a small, tin
box. Painter had earlier seen that same tin box in Porter’s bedroom. Painter opened the box and
found drug paraphernalia (two metal spoons and a glass tube) containing what was later
determined to be heroin and cocaine residue. Painter immediately called the Sheriff’s
Department and gave the items to Deputy Joe Patterson.
In Porter’s duffle bag, Deputy Patterson also found photographs of Porter and his
girlfriend and two W-2 forms bearing Porter’s name. Porter was arrested later that evening. He
admitted to the police that the duffle bag belonged to him, as well as the tin box and everything
else in the bag. Porter also said he, not Reilly, packed the bag. He denied, however, any
knowledge of the drug paraphernalia.
-2- At trial, Porter argued that someone else could have planted the drug paraphernalia in his
tin box. As potential suspects, he identified his girlfriend, Painter’s boyfriend, and the father of
Painter’s son. The trial court heard evidence on each of these possibilities. Porter’s girlfriend
testified that she knew nothing about the drug paraphernalia in her boyfriend’s tin box. Painter
testified that neither her boyfriend nor her son’s father had keys to her home. Nor did they have
access to Porter’s belongings. After Porter packed his duffle bag and Reilly moved it to the
garage, Painter testified, no one else entered the garage. Painter’s boyfriend may have visited the
home during this period, but never went into the garage. And her son’s father had not been to
the home during this time frame.
Having heard this evidence, the trial court found Porter guilty of possession of the
cocaine and heroin found in Porter’s tin box. “I am satisfied beyond a reasonable doubt that the
Commonwealth has met its burden of proof,” the court ruled. The court noted Porter’s
“possession and control of the containers” and his admission that he owned and packed the
duffle bag.
II.
When addressing a challenge to the sufficiency of the evidence, 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. Seaton v. Commonwealth, 42 Va. App. 739, 746, 595
S.E.2d 9, 12 (2004) (citation omitted). Under this standard, we ask whether “any rational trier of
fact could have found the essential elements of the crime beyond a reasonable doubt.” Kelly v.
Commonwealth, 41 Va. App. 250, 257, 584 S.E.2d 444, 447 (2003) (en banc) (quoting Jackson
v. Virginia, 443 U.S. 307, 319 (1979)) (emphasis in original); see also Seaton, 42 Va. App. at
747-48, 595 S.E.2d at 13; Crowder v. Commonwealth, 41 Va. App. 658, 663, 588 S.E.2d 384,
387 (2003).
-3- Constructive possession of the drugs can be shown by “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.”
Williams v. Commonwealth, 42 Va. App. 723, 735, 594 S.E.2d 305, 311 (2004) (internal
brackets and citation omitted); Kelly, 41 Va. App. at 260, 584 S.E.2d at 449. “To resolve the
issue, the Court must consider the totality of the circumstances established by the evidence.”
Williams, 42 Va. App. at 735, 594 S.E.2d at 311. “To be sure, in drug cases no less than any
other, it ‘is axiomatic that any fact that can be proved by direct evidence may be proved by
circumstantial evidence.’” Haskins v. Commonwealth, 44 Va. App. 1, 6, 602 S.E.2d 402, 404
(2004) (quoting Etherton v. Doe, 268 Va. 209, 212-13, 597 S.E.2d 87, 89 (2004)).
The evidence in this case supports the rationality of the trial court’s findings. Porter
admitted that he packed his tin box and placed it in his duffle bag, facts corroborated by the
presence of his personal belongings inside the bag. It was entirely rational for the factfinder to
conclude, beyond a reasonable doubt, that the drug paraphernalia found in Porter’s tin box
likewise belonged to Porter. Porter’s only hypothesis of innocence ⎯ that someone planted the
incriminating evidence in the tin box after he packed it in his duffle bag ⎯ falls far short of an
explanation that any reasonable factfinder would necessarily have to accept.1 See Kelly, 41
Va. App. at 260-61, 584 S.E.2d at 449 (recognizing that prosecution need not eliminate the mere
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COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, Felton and Kelsey Argued at Richmond, Virginia
JEFFREY EDWARD PORTER MEMORANDUM OPINION* BY v. Record No. 0419-04-2 JUDGE D. ARTHUR KELSEY FEBRUARY 15, 2005 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF KING GEORGE COUNTY Horace A. Revercomb, III, Judge
Elizabeth A. Trible, Assistant Public Defender, for appellant.
Alice T. Armstrong, Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.
Jeffrey Edward Porter challenges on appeal his convictions for possession of cocaine and
possession of heroin in violation of Code § 18.2-250, claiming the evidence was insufficient to
prove his guilt on either charge. We disagree and affirm.
I.
On appeal, we review the evidence in the “light most favorable” to the Commonwealth.
Commonwealth v. Hudson, 265 Va. 505, 514, 578 S.E.2d 781, 786 (2003). That principle
requires us to “‘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.’” Parks v. Commonwealth, 221 Va. 492, 498, 270
S.E.2d 755, 759 (1980) (emphasis in original and citation omitted).
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. In January 2003, Laura Painter advertised that she was renting out a room in her house
where she and her four-year-old son lived. Porter responded to the ad and soon moved in with
his girlfriend, Katherine Reilly. On two separate occasions, Painter found “dealer bags” in her
house and developed “suspicions that [Porter] was using drugs.”
When Porter was arrested on an unrelated matter in late March 2003, Painter told Porter
and Reilly they would have to move out of her house. The couple complied but left “furniture,
clothes, CDs, and almost everything they had” at Painter’s house. Over the next two weeks,
Painter called several times to ask that Porter and Reilly remove their property from her house.
About a week later, Reilly returned to the house and moved most of the items into Painter’s
garage.
After another week passed, Painter left another message warning that if they did not
retrieve their belongings by the following Monday, she “was going to start going through it and
throwing it away.” Painter returned from work Monday evening to find the garage still full of
Porter’s and Reilly’s belongings.
As she was going through the items, Painter opened a duffle bag containing a small, tin
box. Painter had earlier seen that same tin box in Porter’s bedroom. Painter opened the box and
found drug paraphernalia (two metal spoons and a glass tube) containing what was later
determined to be heroin and cocaine residue. Painter immediately called the Sheriff’s
Department and gave the items to Deputy Joe Patterson.
In Porter’s duffle bag, Deputy Patterson also found photographs of Porter and his
girlfriend and two W-2 forms bearing Porter’s name. Porter was arrested later that evening. He
admitted to the police that the duffle bag belonged to him, as well as the tin box and everything
else in the bag. Porter also said he, not Reilly, packed the bag. He denied, however, any
knowledge of the drug paraphernalia.
-2- At trial, Porter argued that someone else could have planted the drug paraphernalia in his
tin box. As potential suspects, he identified his girlfriend, Painter’s boyfriend, and the father of
Painter’s son. The trial court heard evidence on each of these possibilities. Porter’s girlfriend
testified that she knew nothing about the drug paraphernalia in her boyfriend’s tin box. Painter
testified that neither her boyfriend nor her son’s father had keys to her home. Nor did they have
access to Porter’s belongings. After Porter packed his duffle bag and Reilly moved it to the
garage, Painter testified, no one else entered the garage. Painter’s boyfriend may have visited the
home during this period, but never went into the garage. And her son’s father had not been to
the home during this time frame.
Having heard this evidence, the trial court found Porter guilty of possession of the
cocaine and heroin found in Porter’s tin box. “I am satisfied beyond a reasonable doubt that the
Commonwealth has met its burden of proof,” the court ruled. The court noted Porter’s
“possession and control of the containers” and his admission that he owned and packed the
duffle bag.
II.
When addressing a challenge to the sufficiency of the evidence, 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. Seaton v. Commonwealth, 42 Va. App. 739, 746, 595
S.E.2d 9, 12 (2004) (citation omitted). Under this standard, we ask whether “any rational trier of
fact could have found the essential elements of the crime beyond a reasonable doubt.” Kelly v.
Commonwealth, 41 Va. App. 250, 257, 584 S.E.2d 444, 447 (2003) (en banc) (quoting Jackson
v. Virginia, 443 U.S. 307, 319 (1979)) (emphasis in original); see also Seaton, 42 Va. App. at
747-48, 595 S.E.2d at 13; Crowder v. Commonwealth, 41 Va. App. 658, 663, 588 S.E.2d 384,
387 (2003).
-3- Constructive possession of the drugs can be shown by “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.”
Williams v. Commonwealth, 42 Va. App. 723, 735, 594 S.E.2d 305, 311 (2004) (internal
brackets and citation omitted); Kelly, 41 Va. App. at 260, 584 S.E.2d at 449. “To resolve the
issue, the Court must consider the totality of the circumstances established by the evidence.”
Williams, 42 Va. App. at 735, 594 S.E.2d at 311. “To be sure, in drug cases no less than any
other, it ‘is axiomatic that any fact that can be proved by direct evidence may be proved by
circumstantial evidence.’” Haskins v. Commonwealth, 44 Va. App. 1, 6, 602 S.E.2d 402, 404
(2004) (quoting Etherton v. Doe, 268 Va. 209, 212-13, 597 S.E.2d 87, 89 (2004)).
The evidence in this case supports the rationality of the trial court’s findings. Porter
admitted that he packed his tin box and placed it in his duffle bag, facts corroborated by the
presence of his personal belongings inside the bag. It was entirely rational for the factfinder to
conclude, beyond a reasonable doubt, that the drug paraphernalia found in Porter’s tin box
likewise belonged to Porter. Porter’s only hypothesis of innocence ⎯ that someone planted the
incriminating evidence in the tin box after he packed it in his duffle bag ⎯ falls far short of an
explanation that any reasonable factfinder would necessarily have to accept.1 See Kelly, 41
Va. App. at 260-61, 584 S.E.2d at 449 (recognizing that prosecution need not eliminate the mere
“possibility that someone else may have planted, discarded, abandoned or placed” the drug
1 On appeal, Porter contends that a “review of the totality of the circumstances does not exclude every reasonable hypothesis except that of guilt” because a “rational trier of fact could have found that someone else placed drugs within the Accused’s bag.” Appellant’s Brief at 13- 14 (emphasis added). By framing the point this way, Porter inverts the question presented. The issue on appeal is whether a rational factfinder could have rejected the defendant’s exculpatory hypothesis. See Haskins, 44 Va. App. at 9, 602 S.E.2d at 406 (holding that whether a hypothesis of innocence is reasonable is itself a question of fact, subject to deferential appellate review). -4- evidence (quoting Brown v. Commonwealth, 15 Va. App. 1, 10, 421 S.E.2d 877, 883 (1992) (en
banc))).2
III.
Because sufficient evidence supports Porter’s convictions for possession of cocaine and
possession of heroin, we affirm both convictions.
Affirmed.
2 Nor can Porter rely on his own denial as a basis for exoneration. See generally Commonwealth v. Duncan, 267 Va. 377, 385, 593 S.E.2d 210, 215 (2004) (noting that the factfinder may discount an accused’s self-serving explanation as a mere effort at “lying to conceal his guilt”); Dugger v. Commonwealth, 40 Va. App. 586, 594 n.2, 580 S.E.2d 477, 481 n.2 (2003). -5-