COURT OF APPEALS OF VIRGINIA
Present: Judges Fr ank, Clements and Felton Argued at Chesapeake, Virginia

SHARRIEFF MUHAMMAD MEMORANDUM OPINION * BY v. Record No. 2879-04-1 JUDGE JEAN HARRISON CLEMENTS MARCH 28, 2006 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH Johnny E. Mo rrison, Judge Dianne G. Ringer (Bierowicz & Ringer, P.C., on brief), for appellant. (Judith Williams Jagdmann, Attorn ey General; Rosema ry V. Bourne, Assistant Attorney General, on brief), for appellee.
Sharrieff Muhammad (appellant) was convicted in a bench trial of possession with intent to distribute heroin, in violation of Code § 18.2-248. On appeal, he contends that the evidence was insufficient to sustain his conviction, arguing th at the Commonwealth failed to prove the elements of possession and intent to distribute. For th e reasons stated herein, we affirm appellant’s conviction. As the parties are fully co nversant with the record in this case and because this memorandum opinion carries no precedential value, th is opinion recites only those facts and incidents of the proceedings as ar e necessary to the parties’ unders tanding of the disposition of this appeal.

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.- 2 - I. BACKGROUND “Under familiar principles of appellate review, we view the evidence and all reasonable inferences fairly deducible from that evidence in the light most favorable to the Commonwealth, the party that prevailed belo w.” Banks v. Commonwealth , 41 Va. App. 539, 5 43, 586 S.E.2d 876, 877 (2003). So viewed, the uncontrovertedevidence presented by the Commonwealth at trial proved that on March 25, 2004, at approximatel y 5:50 p.m., Detective T. McAndrew of the Port smouth Police Department received inform ation from a confidentia l and reliable informant that a man, known to the informant as “Yoshi,” would be standing on the corner of Turnpike Road and Howard Street selling heroin. The informant provided a detailed physical descri ption of Yoshi, an d disclosed that Yoshi possessed heroin in the rear of his jeans. Based on this information, Detective McAndr ew and Detective P. Li pscomb responded to the intersection of Turnpike Road and Howard St reet and, upon arrival at 6:04 p.m., observed appellant standing on the corner with two othe r males. Because he matched the description provided by the informan t, the detectives exited the police vehicle, walked up to appellant, and placed him in custody. Detective McAndrew cuffed appellant’s hand s securely behind his back and seated him in the front passenger seat of the police vehicle. He then asked appellant for his street name, and appellant responded, “Yoshi.” Having placed appellant in the police vehicl e, Detective McAndrew informed him that he was being taken into custody for th e suspected possession of heroin. He advised appellant that he knew the heroin was concealed in the rear of his jean s, and warned him not to remove the heroin in order to drop it inside the vehicle. Detective McAndrew then left the police vehicle and engaged De tective Lips comb in conversation. As the detectives conversed in front of the vehicle, Detect ive McAndrew looked- 3 - toward the windshield and obse rved the cuffed appellant “movi ng around” and shifting his shoulders from “side to side.” Detective Lips comb also observed appellant “making movements” and “wiggling.” Having observed this conduct, De tective McAndrew walked over to the passenger side of the police vehicle, looked through the rear window, and noticed a clear plastic baggie on the rear floorboard “directly behind” where appellant was seated. The baggie contained 16 individual capsules of suspected heroin. Appellant was the sole occupa nt of the police vehicle at the time of his arrest. The vehicle had been assigned to Detective Li pscomb. Detectives Lipscomb an d McAndrew had arrived at the scene together in that vehicle, Detective Lipscomb driving and Detective McAndrew as the front seat passenger. On the day before appellant’s arrest, Detective Lipsco mb had cleaned out and vacuumed the interior of the vehicle. He observed no clear plastic baggie of suspected heroin in the vehicle at that time. Immediately prior to appella nt’s arrest, Detective McAndrew had inspected the passenger area and also observed no such baggie inside the vehicle. No person, save Detectives Lipscomb and McAndrew, had access to the interior of the vehicle prior to appellant ’s arrest, and appellant was the first person placed in the ve hicle since it had been cleaned and vacuumed. Subsequent laboratory analysis confirmed th at the 16 individual capsules discovered in Detective Lipscomb’s vehicle contained a total amount of 1. 262 grams of heroin. The Commonwealth presented, as a witness, Detective R.M. Holly, who testified as an expert in the use, packaging, and distribution of narcotics. Having nine years of experience as a narcotics detective, Detective Holly opined th at the evidence was inconsistent w ith the personal use of heroin. He explained that, “a[n] [individual] user is not going to carry [16] capsules [of heroin] around with him” for personal use. Detective Holly testif ied that the street va lue of the heroin was approximately $10 per capsule.- 4 - Appellant made a motion to strike at the close of the Commonwea lth’s evidence, arguing that the Commonwealth had failed to prove the elements of possession and intent to distribute. 1 The trial court denied appellant’s mo tion, and convicted him of possession with intent to distribute heroin, in violation of Code § 18.2-248. This appeal followed. II. ANALYSIS Appellant contends that th e Commonwealth’s evidence was insufficient to sustain his conviction for two reasons. First, he argues that the evidence was insuffi cient to prove that he possessed the heroin found in Detective Lipscomb’s vehicle. Second, appella nt argues that, even assuming the Commonwealth proved that he possessed the heroin, the evidence was still insufficient to prove that he intended to distribute it. We disagree. When a defendant challenges the sufficiency of the evidence on appeal, “we examine the evidence in the light most favorable to th e Commonwealth, granting to it all reasonable inferences fairly deducible therefrom.” Jones v. Commonwealth , 23 Va. App. 93, 99, 474 S.E.2d 825, 828 (1996). “‘In so doing, we must . . . regard as true all the credible evidence favorable to the Commonwealth and all fair inferences that may be drawn therefrom.’” Watkins v. Commonwealth , 26 Va. App. 335, 348, 494 S.E.2d 859, 866 (1998) (quoting Cirios v. Commonwealth , 7 Va. App. 292, 295, 373 S.E.2d 164, 165 (1988)). “The judgment of a trial court sitting without a jury is entitled to the sa me weight as a jury verdict and will not be set aside unless it appears from the ev idence that the judgment is plai nly wrong or without evidence to support it.” Ma rtin v. Commonwealth , 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987). Furthermore, “the credibility of the witnesses and the weight accorded the evidence are matters

1 Specifically, appellant stated he intended to present no evidence at trial and, in making his motion to strike, declared that the motion represented his first motion to strike, second motion to strike, and closing argument “all wrapped up into one.”- 5 - solely for the fact finder who has the opportunity to see a nd hear that evidence as it is presented.” Sandoval v. Commonwealth , 20 Va. App. 133, 138, 455 S.E.2d 730, 732 (1995). We first address appellant’s argument that th e evidence was insufficient to prove that he possessed the heroin found in Detective Lipscomb’s vehicle. In support of this argument, he asserts that it “defies credulity” to infer from the evidence that he, while cuffed with his hands behind his back and seated in the police vehicle, could remove heroin from the rear of his jeans and toss it onto the floorboard directly behind his seat. “In order to convict a pers on of illegal possession of an illicit drug, the Commonwealth must prove beyond a reasonable doubt that the accu sed was aware of the presence and character of the drug and that the accused consci ously possessed it.” Walton v. Commonwealth , 255 Va. 422, 426, 497 S.E.2d 869, 871 (1998). “The Commonweal th need not prove actual possession, however.” Williams v. Commonwealth , 42 Va. App. 723, 735, 594 S.E.2d 305, 311 (2004). Rather, the Commonwealth may prove constructive possession of an illicit substance. Maye v. Commonwealth , 44 Va. App. 463, 483, 605 S.E.2d 353, 363 (2004). To support a conviction based on construc tive 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 awar e of both the presence and character of the substance and that it was subj ect to his dominion or contro l.” Powers v. Commonwealth , 227 Va. 474, 476, 316 S.E.2d 739, 740 (1984). The defendant ’s proximity to a controlled substance is one factor that may be considered in determining constructi ve possession. Walton , 255 Va. at 426, 497 S.E.2d at 871-72. Constructive possessi on may be established by circumstantial evidence provided that such evidence excludes every reasonable hypothesis of innocence that flows from the evidence. See Tucker v. Commonwealth , 18 Va. App. 141, 143, 442 S.E.2d 419,- 6 - 420 (1994). “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. Viewed in the light most favorable to the Commonwealth, the circumstantial evidence presented by the Commonwealth proved that appe llant was arrested after he was observed to match a reliable informant’s description of a man possessing heroin in the r ear of his jeans. He was then cuffed with his hands behind his bac k, placed in the front passenger seat area of Detective Lipscomb’s police vehicle, and warned not to discard the heroin from the rear of his pants into the vehicle. The vehicle in which appellant was seated contai ned no heroin. Indeed, the vehicle had been cleaned and vacuumed th e day before by Detective Lipscomb, and he observed no heroin at that time. Nor did Dete ctive McAndrew observe heroin in the vehicle upon his inspection immediately prior to appellant’s arrest. Appellant was the first person placed in the vehicle since it had been cleaned, and the so le occupant of the vehicle at the time of his arrest. No police personnel, save Detectives Lipscomb and McAndrew, had access to the interior of the vehicle since it had been cleaned and v acuumed. Following appellant’s placement in the vehicle, the detectives observed appellant movi ng his shoulders from side to side, “wiggling,” and making other “movements.” Having made this observation, Detective McAndrew immediately returned to the vehi cle and discovered a clear plastic baggie of heroin. The baggie was in plain view and “directly behind” appellant’s seat. Considering the totality of the circumstan ces, the trial court could fairly infer that appellant was aware of the nature and presence of the heroin, that he exercised dominion and control over the heroin, a nd that he was exclusively responsible for its presence in the rear of the vehicle. The uncontroverted evidence excluded all reasonable hypotheses of his innocence, and, therefore, we conclude that the evidence was su fficient to prove beyond a reasonable doubt that appellant constructively possesse d the heroin discovered in De tective Lipscomb’s vehicle.- 7 - We next address appellant’s claim that the evidence was insufficient to prove he intended to distribute the heroin that he constructively possessed. To convict a defendant of possession with intent to distribute an il legal substance, the Commonwealth must prove beyond a reasonable doubt that the defendant inte nded to distribute the substa nce that he possessed. See Williams , 42 Va. App. at 737, 594 S.E.2d at 312. “Possession w ith intent to distribute is a crime which requires ‘an act coupled with a specif ic intent.’” Dunbar v. Commonwealth , 29 Va. App. 387, 393, 512 S.E.2d 823, 826 (1999) (quoting Stanley v. Commonwealth , 12 Va. App. 867, 869, 407 S.E.2d 13, 15 (1991)). “Because direct proof of in tent is often impossible, it must be shown by circumstantial evidence.” Servis v. Commonwealth , 6 Va. App. 507, 524, 371 S.E.2d 156, 165 (1988). Circumstantial evidence of an accused’s intent includes “the quantity of the drugs discovered [and] the packaging of the drugs.” Shackleford v. Commonwealth , 32 Va. App. 307, 327, 528 S.E.2d 123, 133 (2000), aff’d , 262 Va. 196, 547 S.E.2d 899 (2001). Possession of an illegal substance in an amount exceeding that whic h is ordinarily possessed for personal use may sufficiently establish a defendant’s intent to distribute that subs tance. Iglesias v. Commonwealth , 7 Va. App. 93, 110, 372 S.E.2d 170, 180 (1988) (en banc). Expert testimonial evidence may be considered in determining whethe r a defendant intended to distribute an illegal substance. Davis v. Commonwealth , 12 Va. App. 728, 733, 406 S.E.2d 922, 925 (1991). “The quantum of evidence necessary to prove an in tent to distribute depends on the facts and circumstances of each case.” Askew v. Commonwealth , 40 Va. App. 104, 110, 578 S.E.2d 58, 61 (2003). Viewed in the light most favorable to the Commonwealth, the circumstantial evidence presented at trial proved that the police received a tip from an informant that a man was selling heroin on the corner of Turnpike Road and Howa rd Street. The informan t provided a description of the man and disclosed that the man’s street name was “Yoshi.” De tectives Lipscomb and- 8 - McAndrew went to the intersec tion of Turnpike Road and Howa rd Street, observed appellant on the corner matching the descripti on of the seller given by the in formant, and arrested him. Appellant informed the detectives that his street name was “Yoshi.” Following the arrest, the detectives discovered 1.262 grams of heroin in his constructive posse ssion. The heroin consisted of 16 individual capsules, valued at $10 per capsu le, for a total value of $160. Detective Holly testified at trial as an expert in the use, packag ing, and distribution of narcotics, and opined that appellant’s case was inconsistent with the personal use of heroin be cause “a[n] [individual] user is not going to carry [16] caps ules [of heroin] ar ound with him” for personal use. We conclude that the trial court could fairly infer from this evidence that appellant intended to distribute the unusual amount of cap sules in his constructive possession. III. CONCLUSION Therefore, we hold that the evidence was su fficient to sustain ap pellant’s conviction of possession with the intent to distribute heroin, in violation of Code § 18 .2-248. Accordingly, we affirm his conviction. Affirmed.