COURT OF APPEALS OF VIRGINIA 

Present: Judges Frank, 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. Morrison, Judge 

 Dianne G. Ringer (Bierowicz & Ringer, P.C., on brief), for 

appellant. 

 (Judith Williams Jagdmann, Attorney General; Rosemary 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 that the Commonwealth failed to prove the elements 

of possession and intent to distribute. For the reasons stated herein, we affirm appellant’s 

conviction. 

 As the parties are fully conversant with the record in this case and because this 

memorandum opinion carries no precedential value, this opinion recites only those facts and 

incidents of the proceedings as are necessary to the parties’ understanding of the disposition of this 

appeal. 

 *

 Pursuant to Code § 17.1-413, this opinion is not designated for publication. 
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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 below.” Banks v. Commonwealth, 41 Va. App. 539, 543, 586 S.E.2d 876, 877 

(2003). 

 So viewed, the uncontroverted evidence presented by the Commonwealth at trial proved that 

on March 25, 2004, at approximately 5:50 p.m., Detective T. McAndrew of the Portsmouth Police 

Department received information from a confidential 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 description of Yoshi, and disclosed that 

Yoshi possessed heroin in the rear of his jeans. 

 Based on this information, Detective McAndrew and Detective P. Lipscomb responded to 

the intersection of Turnpike Road and Howard Street and, upon arrival at 6:04 p.m., observed 

appellant standing on the corner with two other males. Because he matched the description 

provided by the informant, the detectives exited the police vehicle, walked up to appellant, and 

placed him in custody. Detective McAndrew cuffed appellant’s hands 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 vehicle, Detective McAndrew informed him that he 

was being taken into custody for the suspected possession of heroin. He advised appellant that he 

knew the heroin was concealed in the rear of his jeans, 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 Detective Lipscomb in 

conversation. As the detectives conversed in front of the vehicle, Detective McAndrew looked 
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toward the windshield and observed the cuffed appellant “moving around” and shifting his 

shoulders from “side to side.” Detective Lipscomb also observed appellant “making movements” 

and “wiggling.” Having observed this conduct, Detective 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 occupant of the police vehicle at the time of his arrest. The vehicle 

had been assigned to Detective Lipscomb. Detectives Lipscomb and 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 Lipscomb 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 appellant’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 vehicle since it had been cleaned and vacuumed. 

 Subsequent laboratory analysis confirmed that 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 that the evidence was inconsistent with 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 testified that the street value of the heroin was 

approximately $10 per capsule. 
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 Appellant made a motion to strike at the close of the Commonwealth’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 motion, 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 the Commonwealth’s evidence was insufficient to sustain his 

conviction for two reasons. First, he argues that the evidence was insufficient to prove that he 

possessed the heroin found in Detective Lipscomb’s vehicle. Second, appellant 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 the 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 same weight as a jury verdict and will not be set 

aside unless it appears from the evidence that the judgment is plainly wrong or without evidence 

to support it.” Martin 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.” 
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solely for the fact finder who has the opportunity to see and 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 the 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 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.” Walton v. Commonwealth, 255 Va. 

422, 426, 497 S.E.2d 869, 871 (1998). “The Commonwealth 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 constructive 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 aware of both the presence and character of the 

substance and that it was subject to his dominion or control.” 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 constructive possession. Walton, 255 Va. at 

426, 497 S.E.2d at 871-72. Constructive possession 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, 
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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 appellant was arrested after he was observed to 

match a reliable informant’s description of a man possessing heroin in the rear of his jeans. He 

was then cuffed with his hands behind his back, 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 contained no heroin. Indeed, 

the vehicle had been cleaned and vacuumed the day before by Detective Lipscomb, and he 

observed no heroin at that time. Nor did Detective 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 sole 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 vacuumed. Following appellant’s placement in the 

vehicle, the detectives observed appellant moving his shoulders from side to side, “wiggling,” 

and making other “movements.” Having made this observation, Detective McAndrew 

immediately returned to the vehicle 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 circumstances, 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, and 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 sufficient to prove beyond a reasonable doubt that 

appellant constructively possessed the heroin discovered in Detective Lipscomb’s vehicle.
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 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 illegal substance, the Commonwealth must prove beyond a reasonable 

doubt that the defendant intended to distribute the substance that he possessed. See Williams, 42 

Va. App. at 737, 594 S.E.2d at 312. “Possession with intent to distribute is a crime which 

requires ‘an act coupled with a specific 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 intent 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 which is ordinarily possessed for personal use may 

sufficiently establish a defendant’s intent to distribute that substance. 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 whether 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 intent 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 Howard Street. The informant provided a description 

of the man and disclosed that the man’s street name was “Yoshi.” Detectives Lipscomb and 
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McAndrew went to the intersection of Turnpike Road and Howard Street, observed appellant on 

the corner matching the description of the seller given by the informant, 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 possession. The heroin consisted 

of 16 individual capsules, valued at $10 per capsule, for a total value of $160. Detective Holly 

testified at trial as an expert in the use, packaging, and distribution of narcotics, and opined that 

appellant’s case was inconsistent with the personal use of heroin because “a[n] [individual] user is 

not going to carry [16] capsules [of heroin] around 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 capsules in his constructive possession. 

III. CONCLUSION 

 Therefore, we hold that the evidence was sufficient to sustain appellant’s conviction of 

possession with the intent to distribute heroin, in violation of Code § 18.2-248. Accordingly, we 

affirm his conviction. 

Affirmed.