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Appellant knowingly possessed methamphetamine

Virginia Lawyers Weekly//January 21, 2023

Appellant knowingly possessed methamphetamine

Virginia Lawyers Weekly//January 21, 2023

There is sufficient evidence that appellant knowingly possessed methamphetamine where it was “plainly visible” and appellant was in close proximity.

Constructive possession

“[I]t is well-established that a defendant’s immediate proximity to contraband that is plainly visible is sufficient to support a finding of constructive possession, even when others are present. …

“[T]he evidence, viewed in the light most favorable to the Commonwealth, establishes that the methamphetamine was plainly visible ‘[d]irectly next to [Cabell’s] seat on the floor.’

“Although Cabell argues that the methamphetamine was not in plain view, Trooper Cappo testified that he did not ‘have to look very hard to find [the plastic bag],’ as ‘it was very apparent to [him]’ when he began his search.

“That testimony, viewed in the light most favorable to the Commonwealth, belies Cabell’s argument. … Moreover, a ‘black zippered pouch’ containing suspected paraphernalia with white residue was on Cabell’s seat near the center console. …

“In addition, Cabell’s statements and actions provide further evidence that he was aware of the methamphetamine in the vehicle and exercised dominion and control over it. …

“Cabell admitted that he had consumed methamphetamine four days prior, which is probative evidence that he was aware of the presence and character of the methamphetamine plainly visible next to his seat. Cabell was fidgety, talkative, and moving his hands.

“Further, Deputy Gale testified that he arrived at the scene after the stop by Trooper Cappo. Gale testified that, while still in the front passenger’s seat, Cabell was furtively moving his hands in a way that Deputy Gale could not see. Deputy Gale then had him step out of the vehicle.

“Trooper Cappo also testified that Cabell was ‘defensive’ and became ‘extremely hyper, [and] very emotional’ when questioned about the items found.

“These furtive movements together with Cabell’s defensive and emotional reaction and the presence of methamphetamine between the seat where Cabell was sitting and the door are sufficient to warrant a reasonable person to believe that Cabell was aware of the presence and character of the methamphetamine.”


“It is well-established that, ‘in drawing inferences from the evidence, the fact finder may conclude … [that the] defendant[’s] … false statements established that he has lied to conceal his guilt.’ … Once the fact finder concludes that the defendant’s testimony is not credible, it may treat his ‘prevarications as affirmative evidence of guilt.’…

“Moreover, in ‘cases involving possession of contraband, such an inference qualifies as evidence that tends to show that the defendant was aware of the contraband and that it was subject to his dominion and control.’ …

“Here, Cabell told Trooper Cappo during the incident that the car was his or that he was in the process of buying it. At trial, however, he claimed that Alexander owned the vehicle, he was merely a passenger, and that December 7 was the first time he had been in the vehicle.

“The trial court found Cabell’s inconsistent statements to be the ‘most compelling’ evidence of his guilty knowledge of the presence and character of the methamphetamine.

“Given the evidence at trial, the trial court was entitled to disbelieve Cabell’s denials and assertion of innocence.”

Cabell v. Commonwealth, Record No. 1397-22-3, Nov. 22, 2022. CAV unpublished opinion (Fulton III; Ortiz, dissenting). From the Circuit Court of Augusta County (Reed). Jennifer T. Stanton for appellant. Jason S. Miyares, William K. Hamilton for appellee. VLW 022-7-529, 8 pp.

VLW 022-7-529

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