WALTON v. COMMONWEALTH
February 27, 1998
Record No. 971369
ERIC COOPER WALTON
COMMONWEALTH OF VIRGINIA
OPINION BY SENIOR JUSTICE ROSCOE B. STEPHENSON, JR.
FROM THE COURT OF APPEALS OF VIRGINIA
PRESENT: Carrico, C.J., Compton, Lacy, Hassell, Keenan, and
Koontz, JJ., and Stephenson, Senior Justice
The issues presented in this appeal are (1) whether the
evidence is sufficient to convict the defendant of possession of
marijuana and, if so, (2) whether the suspension of the
defendant’s driver’s license pursuant to Code ? 18.2-259.1
violates his constitutional right to due process.
On January 18, 1996, following a bench trial, the Circuit
Court of the City of Salem convicted Eric Cooper Walton of
possession of marijuana, in violation of Code ? 18.2-250.1. The
court sentenced Walton to 30 days in jail, with all but four days
suspended, and fined him $200. Pursuant to Code ? 18.2-259.1,
Walton’s privilege to operate a motor vehicle was suspended for a
period of six months.
Walton appealed the judgment of conviction and the license
suspension to the Court of Appeals, presenting, inter alia,
the two issues presented here. The Court of Appeals denied the
appeal challenging the sufficiency of the evidence of possession
of marijuana, but awarded the appeal challenging the license
suspension. Thereafter, the Court of Appeals affirmed the trial
court’s suspension of Walton’s operator’s license. Walton
v. Commonwealth, 24 Va. App. 757, 485 S.E.2d 641 (1997).
We awarded Walton this appeal on both issues.
On September 12, 1995, in the City of Salem, Detective W.W.
Young executed a search warrant at the mobile home of Walton and
his wife. The warrant authorized a search for marijuana and all
items associated with its use and cultivation.
Young found a large marijuana plant growing in a small flower
bed immediately adjacent to the steps to the door of the home.
Unlike all other plants in the bed, the marijuana plant recently
had been watered. Young also found a large metal tray under a
couch in Walton’s living room. The tray contained a set of
hemostats, a package of rolling papers, and a small quantity of
plant material. A subsequent laboratory analysis proved that the
plant material was .02 of an ounce of marijuana, "enough to
make a cigarette."
During the search, Walton volunteered several statements to
Detective Young. Walton stated that he was not a drug dealer;
rather, he was "just a guy who smokes a little marijuana and
works hard for a living." Walton also told Young that he had
planted the flower bed but that he could not account for the
planting of the marijuana. While the detective was searching
through a package of cigarettes that had been on the metal tray,
Walton said, "[t]here’s no joints in there. I smoked the
last one just before you got [here]."
At trial, Walton testified that he had been smoking marijuana
since 1969. He said that, at times, friends would come to his
home and smoke marijuana with him. The friends would bring their
own marijuana and take with them the remainder. He stated that,
"every time [he] rolled marijuana into cigarettes, [he] either used [the metal] tray or a newspaper or a magazine or
whatever," and then he threw the residue in the trash.
Walton further testified that he never had grown marijuana, he
did not know what marijuana plants looked like, and he did not
know that the large plant in the flower bed was marijuana. He
conceded that he previously had been convicted of two felonies
and of two or three misdemeanors involving moral turpitude.
First, we determine whether the evidence is sufficient to
support the trial court’s finding that Walton knowingly or
intentionally possessed marijuana. When the sufficiency of the
evidence in a criminal case is challenged on appeal, we must view
the evidence and all reasonable inferences fairly deducible
therefrom in the light most favorable to the Commonwealth. Dukes
v. Commonwealth, 227 Va. 119, 122, 313 S.E.2d 382, 383
(1984). Great deference must be given to the factfinder who,
having seen and heard the witnesses, assesses their credibility
and weighs their testimony. Saunders v. Commonwealth,
242 Va. 107, 113, 406 S.E.2d 39, 42, cert. denied,
502 U.S. 944 (1991). Thus, a trial court’s judgment will not be
disturbed on appeal unless it is plainly wrong or without
evidence to support it. Code ? 8.01-680; Dukes, 227 Va.
at 122, 313 S.E.2d at 383.
In order to convict a person of illegal possession of an
illicit drug, the Commonwealth must prove beyond a reasonable
doubt that the accused was aware of the presence and character of
the drug and that the accused consciously possessed it. Andrews
v. Commonwealth, 216 Va. 179, 182, 217 S.E.2d 812, 814
(1975). An accused’s mere proximity to an illicit drug, however,
is not sufficient to prove possession. Drew v. Commonwealth,
230 Va. 471, 473, 338 S.E.2d 844, 845 (1986). In addition,
ownership or occupancy of the premises where the drug is found
does not create a presumption of possession. Code ?
18.2-250.1(A); Garland v. Commonwealth, 225 Va.
182, 184, 300 S.E.2d 783, 784 (1983). Nonetheless, these factors
may be considered in deciding whether an accused possessed the
drug. Lane v. Commonwealth, 223 Va. 713, 716, 292
S.E.2d 358, 360 (1982).
Additionally, proof of actual possession is not required;
proof of constructive possession will suffice. Constructive
possession may be established when there are "’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.’" Drew, 230 Va.
at 473, 338 S.E.2d at 845 (quoting Powers v. Commonwealth,
227 Va. 474, 476, 316 S.E.2d 739, 740 (1984)).
In the present case, the police found a marijuana plant
growing near the entrance to Walton’s house. The plant was in a
flower bed that Walton had planted, and it was the only plant in
the flower bed that had been watered recently. Beneath a couch in
Walton’s home, the police found a large metal tray containing
hemostats, rolling paper, and enough marijuana to roll a
cigarette. Walton, a longtime smoker of marijuana, sometimes used
the metal tray when he rolled marijuana cigarettes. In fact,
Walton had smoked a "joint" just before the police
arrived at his home.
Viewing the evidence and all reasonable inferences flowing
therefrom in the light most favorable to the Commonwealth and
affording the factfinder the deference to which it is entitled,
we conclude that the evidence fully supports the trial court’s
finding that Walton knowingly and intentionally possessed
marijuana. This conclusion is supported by all the facts and
circumstances proven, including Walton’s acts, statements, and
Next, we determine whether the suspension of Walton’s driver’s
license violates his constitutional right to due process. Code ?
18.2-259.1 provides, in pertinent part, that a judgment of
conviction of a drug offense "shall
. . . operate to deprive the person so convicted
. . . of the privilege to drive or operate a motor
vehicle . . . in the Commonwealth for a period of
six months." Walton contends that the suspension of his
driver’s license upon his conviction of possession of marijuana
violates his substantive due process rights under the Fourteenth
Amendment to the United States Constitution and under Article I,
Section 11 of the Virginia Constitution.
All legislation is presumed to be constitutional, and,
therefore, the party attacking the legislation has the burden of
proving that it is unconstitutional. Riddleberger v. Chesapeake
Railway, 229 Va. 213, 215, 327 S.E.2d 663, 664 (1985). Any
reasonable doubt whether a statute is constitutional shall be
resolved in favor of its validity, and courts will declare a
statute invalid only if it is plainly repugnant to some
constitutional provision. Blue Cross v. Commonwealth,
221 Va. 349, 358, 269 S.E.2d 827, 832 (1980).
Substantive due process tests the reasonableness of
legislation vis-?-vis the General Assembly’s power to legislate.
Etheridge v. Medical Center Hospitals, 237 Va. 87,
97, 376 S.E.2d 525, 530 (1989); Duke v. County of
Pulaski, 219 Va. 428, 437-38, 247 S.E.2d 824, 829 (1978).
Ordinarily, unless the legislation affects some fundamental
constitutional right, substantive due process is satisfied if the
legislation has a "reasonable relation to a proper purpose
and [is] neither arbitrary nor discriminatory." Duke,
219 Va. at 438, 247 S.E.2d at 829. This is the so-called
"rational basis" test.
The right to operate a motor vehicle is a conditional
privilege, which may be suspended or revoked in the interest of
public safety under the police power of the Commonwealth. Commonwealth
v. Ellett, 174 Va. 403, 414, 4 S.E.2d 762, 767 (1939). It
is not a fundamental constitutional right; however, the right may
not be revoked or suspended without due process of law. See
Bell v. Burson, 402 U.S. 535, 539 (1971). Thus,
whether legislation affecting that right satisfies substantive
due process is determined by the application of the rational
Although Code ? 18.2-259.1 mandates suspension of a driver’s
license for a drug offense that does not involve the operation of
a motor vehicle, it is reasonable to conclude that a purpose of
the statute is to protect persons using the Commonwealth’s
highways. As the Court of Appeals observed, the General Assembly
"could reasonably assume that a person who possesses illegal
substances would use those substances and could operate a motor
vehicle while under the influence of [the] substances." Walton,
24 Va. App. at 761, 485 S.E.2d at 643. We conclude, therefore,
that the General Assembly, in enacting Code ? 18.2-259.1, acted
in the interest of public safety. Resolving all reasonable doubt
in favor of the statute’s validity, we hold that the statute
satisfies the rational basis test for substantive due process.
In sum, we hold that the evidence is sufficient to support
Walton’s conviction of possession of marijuana and that the
suspension of Walton’s driver’s license pursuant to Code ?
18.2-259.1 does not violate Walton’s substantive due process
rights. Accordingly, the judgment of the Court of Appeals will be
 Pursuant to subsection (C) of
Code ? 18.2-259.1, the trial court permitted Walton to be issued
a restricted license for the purpose of traveling to and from his
place of employment.
Walton also contends that the statute violates the proscription
against cruel and unusual punishment contained in the Eighth
Amendment to the United States Constitution. The Court of
Appeals, applying its Rule 5A:18, refused to consider this
contention, ruling that the argument had not been made in the
trial court. Walton, 24 Va. App. at 761, 485 S.E.2d at
643. The record shows that this argument was not made at trial,
and, therefore, we will affirm this ruling of the Court of