So, I'm looking up how to prove knowledge that drugs in possession are controlled substances and I remember the Virginia Supreme Court saying possession is enough to prove knowledge of what you possess. So, I find the case:
To establish possession of a controlled substance, is generally is [sic] necessary to show that the defendant was aware of the presence and character of the particular substance and was intentionally and consciously in possession of it. Physical possession giving the defendant immediate and exclusive control is sufficient. Gillis v. Commonwealth, 215 Va. 298 (1974).
Now, I know that back in the stone ages when I was doing defense work this and a whole raft of cases from the Virginia Court of Appeals were used to support the proposition that if you possess it you know what it is. Arguably, the VaSC's statement was ambiguous and wasn't addressing knowledge of the type of substance, but only the intentional and conscious possession. However, the Court of Appeals bought the possession = knowledge equation hook line and sinker.
And then the VaSC decided it didn't like that:
The Commonwealth must also establish that the defendant intentionally and consciously possessed it with knowledge of its nature and character.” Id. (citations omitted) (emphasis added). That knowledge is an essential element of the crime.
Such knowledge may be shown by evidence of the acts, statements or conduct of the accused. Garland v. Commonwealth, 225 Va. 182, 184, 300 S.E.2d 783, 784 (1983). Other circumstantial evidence may also support a finding of a defendant's knowledge of the nature and character of the substance in his possession, such as the drug's distinctive odor or appearance, or statements or conduct of others in his presence that would tend to identify it.
The issue in the present case is whether the record contains evidence from which any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. The Court of Appeals, in affirming the conviction, relied on its decision in Josephs v. Commonwealth, 10 Va.App. 87 (1990), in which the court held that “[p]ossession of a controlled drug gives rise to an inference of the defendant's knowledge of its character.”. . .
To the extent that the holding in Josephs is inconsistent with our holding here, i.e., that possession alone, without more, is insufficient to support an inference of guilty knowledge, we overrule that part of the decision of the Court of Appeals. Young v. Commonwealth, 275 Va. 587, 591, 659 S.E.2d 308, 310 (2008).
Note that the VaSC didn't point out its own case which previously laid the groundwork for the Court of Appeals precedence it overruled. It's good to be on the top of the pyramid and able to forget your own errors.