COURT OF APPEALS OF VIRGINIA
Present: Judges Ha ley, Petty and Powell Argued at Salem, Virginia

EARL LAMONT BOXLEY, SR. MEMORANDUM OPINION * BY v. Record No. 0342-08-3 J UDGE CLEO E. POWELL MARCH 10, 2009 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG Mosby G. Perrow, III, Judge Keith Orgera, Assistant Public Defender (Office of the Public Defender, on brief), for appellant. Donald E. Jeffrey, III, Senior Assistant Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee.
Earl Lamont Boxley, Sr., appellant, was convic ted of possession of cocaine, in violation of Code § 18.2-250, possession of an imitation Schedule I or II drug with the intent to distribute, in violation of Code § 18.2 -248, and obstruction of justice, in violation of Code § 18.2-460. On appeal, he argues that the trial court erred in de nying appellant’s motion to suppress because the police did not have probable cause to arrest him. Appellant further contends that ev en if the trial court did not err in denyi ng his motion to suppress, the eviden ce was insufficient to support a conviction for possession of cocaine because the Commonwealth failed to pr ove that he knew the nature and character of the su bstance and because the nexus between him and the recovered item was inadequate. He also argues that the evidence was not sufficient to convict him of possession of an imitation Schedule I or II controlled substa nce with the intent to distribute because the Commonwealth’s evidence failed to prove that he intended to distribute the imitation drugs.

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.- 2 - Finally, appellant asserts that the evidence wa s insufficient to prove obstruction of justice because he merely made the task more difficu lt for officers attempting to arrest him. We disagree with appellant’s arguments and affirm his convictions.
I. BACKGROUND During the afternoon on May 17, 2007, Captain H.W. Duff, an officer with fifteen years experience and five years as a vice narcot ics officer working undercover purchasing drugs, responded to a report of a fight at a residence in Lynchburg. After resp onding initially, Captain Duff left the scene and drove one block south an d then walked to a spot approximately one to two hundred feet from the reside nce. From his vantage point across the street hidden behind a car, Captain Duff had an unobstructed view. Ba sed on his experience, Captain Duff knew this area “to be [an] open-air drug market area[], plus there are several drug houses in the area as well where people come to purch ase illicit narcotics.” After the uniformed officers left the area, Captain Duff saw Ea rl Lamont Boxley, appellant, and an unidentified ma n moving furniture and bags of trash on the front porch of the residence. Boxley left the front porch and searched in bushes in front of and to the left of the porch. Captain Duff observed the unidentifi ed man, who was on the porch, hand Boxley “something that appeared to be white.” The captain could not tell what the small item was. Boxley took the item from the unknown man, examin ed it briefly, and put it in his “right front shorts pocket.” The men then stopped searching. Captain Duff then saw a Ford F150 pickup truc k pull in front of th e residence and saw Boxley approach the passenger’s side. Captain Duff could not hear the conversation. He saw Boxley reach into the truck and then remove his hand. Th e captain did not observe any transaction. Boxley was at the tr uck for no more than two minutes.- 3 - After the truck left, Captain Duff saw Boxley remove “what appeared to be a rolling paper from his right front pants pocket.” He saw Boxley crumble a substance between his index finger and his thumb into the rolling paper. Boxl ey then rolled a “hand-rolled cigarette, [] licked it,” and then smoked it. Captain Duff could not tell what the substance was, but he believed from his experience that Boxley rolled a mar ijuana cigarette. He believed this because “marijuana is typically clumped up plant materi al; and by crumbling it[,] it makes it smoother and it fits into the rolling paper better. Those actions that I observed from him were consistent with actions I’ve seen with people rolling marijuana cigarettes in th e past.” Also, the captain had previous encounters with Boxley and knew Boxley had a history with narcotics and firearms. Captain Duff called a fellow o fficer, Tim Clements, and told him what he saw. Captain Duff told Officer Clements “that based on what [h e] had seen [he] believed that [Boxley] was in possession of cocaine and marijuana, and [he] called the officers to come up and investigate [his] observations.” Officer Martin estimated that he and Officer Clements arrived on scene approximately thirty seconds after receivi ng the information from Captain Duff. When the officers arrived, they saw a coupl e of men standing on the residence’s front porch. Boxley was smoking a cigarette on the public sidewalk, just to the left of the porch. As soon as the officers began to exit their car, Boxl ey ran to the porch. O fficer Martin commanded Boxley to stop. He was trying to open the door and enter the house when the officers detained him. When Boxley ran to the por ch, he had not yet tossed the ciga rette, but he no longer had it when he tried to open the front door with both hands. Captain Duff joined the struggle that ensued between Boxley and the arresting officers. Boxley kicked his legs and appear ed to be trying to roll over. He repeatedly tried to put his hands in his pockets. During the in cident, Officer Martin was cut.- 4 - After the officers restrained Boxley and stood him up, Captain Duff recovered a hand-rolled cigarette lying on th e porch right beside where B oxley was taken into custody. When analyzed the cigarette was tobacco laced with cocaine. Captain Duff then searched Boxley and removed a plastic ba g containing several pieces of a white substance from Boxley’s pocket. 1
When Officer Martin removed th e item from Boxley’s pocket, Boxley said, “[i]t’s fake, it’s not real.” Boxley told the officers that he found the drugs on the porch and believed it belonged to another man who was asl eep inside the house. Boxley sa id that he planned to return the bag to him. Later he said he intended to th row the bag away. Boxley denied selling drugs or imitation drugs.
II. ANALYSIS
A. DENIAL OF BOXLEY ’S MOTION TO SUPPRESS When an appellant challenges the trial court’s denial of his motion to suppress, this Court applies a de novo review to determinations of reasonable suspicion and probable cause. Ornelas v. United States , 517 U.S. 690, 699 (1996). Boxley must dem onstrate that the tr ial court’s denial of his motion to suppress is reve rsible error when the evidence is viewed in the light most favorable to the Commonwealth. McGee v. Commonwealth , 25 Va. App. 193, 197, 487 S.E.2d 259, 261 (1997) ( en banc ) (quoting Fore v. Commonwealth , 220 Va. 1007, 1010, 265 S.E.2d 729, 731 (1980)). “Probable cause does not require ‘an actual s howing,’ but, rather, ‘ only a probability or substantial chance of criminal activity.’” Purdie v. Commonwealth , 36 Va. App. 178, 185, 549 S.E.2d 33, 37 (2001) (quoting Illinois v. Gates , 462 U.S. 213, 243 n.13 (1983)). We review the “totality of the circumstances” to determine wh ether officers had probable cause to arrest.

1 The officers did not know how much the bag weighed.- 5 - Yancey v. Commonwealth , 30 Va. App. 510, 516, 518 S.E.2d 325, 328 (1999). “Probable cause exists when ‘there is a fair probability that contraband or evidence of a crime will be found in a particular place.’” United States v. Grubbs , 547 U.S. 90, 95 (2006) (quoting Gates , 462 U.S. at 238). Here, officers encountered appellant in an area where people were known to buy and sell drugs and Captain Duff knew that B oxley had a history with narcotic s. The captain’s experience led him to believe that appellant rolled a mariju ana cigarette because he observed the appellant remove “what appeared to be a rolling paper fr om his right front pant s pocket” and crumble a substance between his forefinger and thumb into th e paper, which he rolle d into a “hand-rolled cigarette, [] licked it,” and smoke d it. Captain Duff elaborated, Granted there are many people who smoke tobacco in rolling papers, they roll their own ciga rettes; however, I have actually observed people hand-roll marijuana cigarettes. The marijuana is typically clumped up plant material; and by crumbling it[,] it makes it smoothe r and it fits into the rolling paper better. Those actions th at I observed from him were consistent with actions I’ve s een with people ro lling marijuana cigarettes in the past. Moreover, when the officers excite d their vehicle, appellant ran. When they apprehended him on the porch, he no longer had the cigarette. Recently, the Supreme Court of Virginia reiterated that the observation of a hand-rolled cigarette is insufficient to provi de probable cause to arrest. Buhrman v. Commonwealth , 275 Va. 501, 507-08, 659 S.E.2d 325, 329 (2008); see also Brown v. Commonwealth , 270 Va. 414, 420-21, 620 S.E.2d 760, 763 (2005). In Buhrman , an officer encountered the defendant in a convenience store in a “high- drug” area. 275 Va. at 503, 659 S.E.2d at 326. The defendant appeared to fall asleep while operating th e frozen drink machine and while walking. Id. at 503-04, 659 S.E.2d at 326. The officer approached defendant and asked her for identification.- 6 - Id. at 504, 659 S.E.2d at 326. The defendant complie d and while she was getting the information for the officer, the officer saw hand-rolled cigare ttes in the door handl e of defendant’s car. Id. The officer believed the cigarettes contained ma rijuana and arrested defendant based on this belief. Id. The Supreme Court of Virginia reversed de fendant’s conviction and held that, in light of the totality of the circumstances, th e officer did not have probable cause. Id. at 507-08, 659 S.E.2d at 329.
In Brown , an officer on patrol spotted Brown’s car parked in an alley in such a way that emergency vehicles would be unable to pass. 270 Va. at 417, 620 S.E.2d at 761. As the officer approached the vehicle, four men di spersed in different directions. Id. The officer found Brown asleep in the car holding a “par tially-burned, hand-rolled cigarett e in one hand and a lighter in the other.” Id. Boxley’s case differs signi ficantly from Brown’s. In Brown , the only evidence the officer had to rely on in support of proba ble cause was his experience with controlled substances and his observation of a “partially -burned, hand-rolled cigarette” in Brown’s hand. Id. at 419-20, 620 S.E.2d at 762-63. Notably, in Brown , the Supreme Court explained that We have found that the requisite probable cause for a warrantless search of a vehicle existed based on the police officer’s belief that a hand-rolled cigarette held by a passenger contained marijuana combined with the passenger’s action s in attempting to hide or get rid of the hand-rolled cigarette. Hollis [v. Commonwealth] , 216 Va. [874,] 877, 223 S.E.2d [887,] 889 [(1976)]. In Lawson v. Commonwealth , 217 Va. 354, 355, 228 S.E.2d 685, 686 (1976), the officer testified that he obs erved a yellow bag that “looked like a ‘nickel bag of marijuana.’” We concluded that the totality of the circumstances supported a finding of probable cause to arrest a passenger in a vehicle because o fficers observed the driver and passenger repeatedly pass the ye llow bag between them and the passenger locked the car door as th e officers approached the car. Id. at 357-58, 228 S.E.2d at 687. 270 Va. at 420, 620 S.E.2d at 763.- 7 - These cases show that for the last 25 years, this Court has consistently declined to find that probable cause can be established solely on the observation of ma terial which can be used for legitimate purposes, even though the experience of an officer indicates that such material is of ten used for illegitimate purposes. To support a finding of probable cau se, such observations must be combined with some other circumstance indicating criminal activity. This requirement is cons istent with that of many other jurisdictions that have considered the issue. Id. at 420-21, 620 S.E.2d at 763. In this case, the officers observed much more than the officers had in either Buhrman or Brown . Here, the officer actually observed Boxley cr umble a plant material consistent with what he had observed people do when rolling marijuan a cigarettes. Importantly, here, not only did Captain Duff observe Boxley forming the hand-rolle d cigarette from what he believed to be marijuana, but similar to the defendant in Hollis , throwing the cigarette on the floor and the defendant in Lawson , locking the door and throwing the envelope on the floor. Boxley ran when officers approached him and discarded the cigarett e. In addition, Captain Duff was familiar with Boxley and knew he had a history with narcotics. Here, therefor e, consistent with our Supreme Court’s decisions in Hollis , 216 Va. at 878, 223 S.E.2d at 890, and Lawson , 217 Va. at 358-59, 228 S.E.2d at 688, viewing the totality of the circ umstances in the light most favorable to the Commonwealth, the evidence was sufficient to a rrest Boxley for possession of a controlled substance, and all evidence subsequently recovered was properly admitted.
B. SUFFICIENCY OF THE EVIDENCE Upon an appellant’s challenge to the sufficiency of the evidence, we review the evidence in the light most favorable to the Commonwealth, granting to it all reasonable inferences that flow therefrom. Welch v. Commonwealth , 271 Va. 561, 558, 628 S.E.2d 340, 341 (2006). We will affirm the trial court’s ruling unless it is pl ainly wrong or without evidence to support it.- 8 - Jordan v. Commonwealth , 273 Va. 639, 645, 643 S.E.2d 166, 169-70 (2007) (citing Code § 8.01-680).
1. OBSTRUCTION OF JUSTICE “To constitute obstruction of justice of an officer in the performance of his duty, it is not ne cessary that there be an actual or technical assault upon the officer , but there must be acts clearly indicating an intention on the part of the accused to prevent the officer from performing his duty, as to ‘obstruct’ ordinarily implies opposition or resistance by direct acti on and forcible or threatened means. It means to obstruct the officer himself not merely to oppose or impede the process with which the officer is armed.” 2
Id. at 648, 643 S.E.2d at 171 (quoting Jones v. Commonwealth , 141 Va. 471, 478-79, 126 S.E. 74, 77 (1925)). “[O]bstruction of justice does not occur when a person fails to cooperate fully with an officer or when the person’s conduct merely renders the officer’s task more difficult but does not impede or prevent the officer from performing that task.” Ruckman v. Commonwealth , 28 Va. App. 428, 429, 505 S.E.2d 388, 389 (1998). Here, Boxley ran from the officers. He twis ted away from officers a nd repeatedly tried to put his hands in his pockets. Boxley also kicked his legs as officers trie d to arrest him. His kicking motions, combined with his other actions to avoid arrest, constitute d more than “fail[ure] to cooperate fully” or “render[ing] the officer’s task more difficult.” Id. Boxley’s actions clearly impeded the officers’ efforts to arrest him. Thus, the evidence was sufficient to support his conviction for obstruction of justice.

2 Though Boxley’s sentencing order does not indicate under which subsection of Code § 18.2-460 he was convicted, his indictment indicates that he was charged with violating Code § 18.2-460(C), and therefore we will consider his arguments and the eviden ce as it pertains to that subsection.- 9 - 2. POSSESSION OF A CONTROLLED SUBSTANCE Constructive possession may be demonstrated by showing that the illegal substance was known to the accused and was subject to his dominion and control. Eckhart v. Commonwealth , 222 Va. 447, 450, 281 S.E.2d 853, 855 (1981). “Knowledge of the presence and character of the controlled substance may be show n by evidence of acts, statements, or conduct of the accused.” Id. “Other circumstantial evidence may also supp ort a finding of a defendant’s knowledge of the nature and character of the substance in his pos session, such as the drug’s distinctive odor or appearance, or statements or conduct of others in his presence that woul d tend to identify it.” Young v. Commonwealth , 275 Va. 587, 591, 659 S.E.2d 308, 310 (2008). Appellant first argues that the evidence is insufficient to support his conviction for possession of a controlled substance because the Commonwealth failed to establish a sufficient nexus between him and the illegal drugs. T hough mere proximity cannot establish possession, it is a factor to be considered by the fact finder. Lane v. Commonwealth , 223 Va. 713, 716, 292 S.E.2d 358, 360 (1982). Here, Boxley stood on the si dewalk smoking a hand-rolled cigarette. As officers approached him, he ran to the near by porch. When he reached the front door, he no longer had the cigarette. An officer found the cigarette near by on the porch. Though other men stood on the porch, the officers did not see any of them smoking anything. Thus, the evidence was sufficient to prove that the illegal substances in the hand-rolled cigarette were subject to Boxley’s dominion and control. Boxley further contends that there is no ev idence that he was aware of the nature and character of the illegal drugs in the hand-rolled cigarette. “‘The Co mmonwealth must also establish that the defendant in tentionally and consciously poss essed it with knowledge of its nature and character.’ That knowledge is an essential element of the crime.” Young , 275 Va. at 591, 659 S.E.2d at 310 (citations omitted). The evidence proved that Captain Duff observed- 10 - Boxley remove plant material from his pants pocket, crumble it up, roll it into a hand-rolled cigarette, and smoke it. Further, after the o fficers recovered the imitation crack cocaine from Boxley, he explained to the officer s that he knew the imitation drug was “fake” when he tasted it, because it did not “numb [his] tongue.” Therefor e, Boxley was obviously aware of the effect cocaine has on one’s tongue. His spontaneous stat ement belies his claim that he was unaware of the nature and character of the illegal drugs in the hand-rolled cigarette that he was smoking as that cigarette contained cocaine. From that statement and the contents of the hand-rolled cigarette, the fact finder could re asonably conclude Boxley knew th e cigarette that he hand rolled contained cocaine. Moreover, when officers appr oached him as he smoked this cigarette, he fled. This evidence enabled the fact finder to conclude that Boxley was aware of the illegal nature and character of the substance that he smoked, and, therefore, the evidence was sufficient to support Boxley’s conviction.
3. POSSESSION OF AN IMITIATION CONTROLLED SUBSTANCE WITH THE INTENT TO DISTRIBUTE Boxley also challenges the sufficiency of the evidence to support his conviction for possession of an imitation controlled substance w ith the intent to dist ribute. A court may consider several factors as proba tive evidence of intent to dist ribute a controlled substance, including “the quantity of the drugs seized, the manner in whic h they are packaged, and the presence of an unusual amount of cash, equipment related to drug distribu tion, or firearms.” McCain v. Commonwealth , 261 Va. 483, 493, 545 S.E.2d 541, 547 (2001). The Commonwealth may rely on circumstantial evidence to prove that a defendant intended to distribute illegal drugs while simultaneously possessing them. Christian v. Commonwealth , 33 Va. App. 704, 716, 536 S.E.2d 477, 483 (2000). “The Commonwealth need only exclude those hypotheses of innocence that flow from the evidence, not those that sp ring from the imaginat ion of the defendant.”- 11 - Here, Boxley admitted that he knew that the drugs seized from his pocket were not real. He denied selling narcotics and claimed that he planned to return the imitation drugs to their rightful owner. Later, he stated that he inte nded to throw the imitation drugs away. Boxley could not explain, however, why he had not already returned or otherwise di sposed of the illegal drugs, despite knowing that they were not re al. “Whether a hypothe sis of innocence is reasonable is a question of fact , and a finding by the trial cour t is binding on appeal unless plainly wrong.” Glasco v. Commonwealth , 26 Va. App. 763, 774, 497 S.E.2d 150, 155 (1998) (citations omitted). In convicti ng Boxley of possession of an im itation controlled substance with the intent to distribute, the trial court, acting as the fact finder, disregar ded Boxley’s claim that he was going to return the imitation drugs or th row them away. His continued possession of the imitation drugs after learning they were not real and ha ving had opportunities to dispose of them supports the trial court’s findi ng that Boxley intended to di stribute the imitation drugs and, therefore, the evidence is suffi cient to support his conviction.
III. CONCLUSION For the foregoing reasons , we find that the police had prob able cause to arrest Boxley for possession of a controlled substance and, therefore, the trial court did not er r in denying his motion to suppress. We also fi nd that the evidence was su fficient to prove that he possessed a controlled substance, possessed an imitation co ntrolled substance with the intent to distribute, and obstructed justice. Therefore, we affirm each of Boxley’s convictions. Affirmed.