COURT OF APPEALS OF VIRGINIA

Present: Judg es Bray, Frank and Clements Argued at Ches apeake, Virginia

ANTOINE MAURIC E RICHARDSON MEMORANDUM OPINION * BY v. Record No. 2610-00-1 JUDGE ROBERT P. FRANK NOVEMBER 13, 2001 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS Randolph T. West, Judge Theophlise L. Twitty(Jones and Twitty, on brief), for appellant. Eugene Murphy, Assi stant Attorney General (Randolph A. Beales, At torney General, on brief), for appellee.

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. Antoine Mauric e Richardson (appellant ) was convic ted in a bench trial of possessi on with the intent to distribute cocaine, in violation of Code § 18.2-248. On appeal, he cont ends the trial court erred in finding the evidence was suffic ient to convict. Finding no error, we affirm th e judgment of the trial court. BACKGROUND On March 15, 2000 , Newport News Poli ce Detective D.L. Williams was looking for a su spect who was wa nted on an outstanding fe lony warrant when he saw appellant coming out of a house. Williams could see appell ant's back but no t his face. Thedetective obse rved him get into a yellow cab parked in front of the house. Appe llant was the only backseat passen ger. From the rear, appellant fit the descript ion of the susp ect sought by Williams. After the dete ctive obtained backup, the police decided to stop the cab. Appell ant had been riding in the middle of the backseat "with his arm thrown around the rear of the left seat" prior to the police activa ting their lights, but [w]hen he realiz ed the cab was being stopped, [the detective] observ ed [appella nt] put his arms down, lean forward, move to the left and he bent down to the le ft where hi s shoulder was bent below the rear window. Prior to that, [the detective] could see bo th of his shoulders. He then moved over to the right side of the cab. He "scooted over" one to two feet to the right. Detective R.L. McArth ur assisted in stoppi ng the cab. After appellant got out of the vehicle, McArthur saw "in plai n view on the left-hand side , right as the seat back falls, if you follow the line of th e seat back, there was a plastic bag, a clear plastic bag which contained what [he] believed to be crack cocaine, suspected crac k cocaine on the floorb oard [of the cab] in plain view." No thing obstruct ed his view of the item. "The cocaine was in the hu mp in the fl oorboard. . . . It wasn't actually under the seat , but it was in line if you would follow the back of th e seat down."

- 2 -Inside the 5- by 4-inch plas tic bag were smal ler bags, each containing a number of separate glassine enve lopes. Se veral large chunks of rock cocain e were in the bag, weighing a total of 19 grams and worth approximately $1 ,900. At trial, appellant stipulated that if he in fact possessed th e drugs, the evidence would be sufficient to show he did so with the intent to distribute. Appellan t challenged only th e sufficienc y of the evidence as to possession. In overruling the motion to strike the evid ence, the trial court found appe llant's actions were sufficient to find him guilty. ANALYSIS When considering the issue of sufficiency on appeal, we view the evidence in the light most favorabl e to the Co mmonwealth, granting to it all reasonable inferences fairly deducible therefrom. See Higginbotham v. Commonwealth , 216 Va. 349, 352, 218 S.E.2d 534, 537 (1 975). "In so doing we must '"discard the evidence of the ac cused in conflict with th at of the Co mmonwealth, and regard as tr ue all the credib le evidence fa vorable to the Commonwealth and all fair in ferences that may be drawn therefrom."'" Norman v. Commonwealth , 2 Va. App. 51 8, 520, 346 S.E.2d 44, 45 (1986) (quoting Parks v. Commonwealth , 221 Va. 492, 498, 270 S.E.2d 755, 759 (1980) (quoting Wright v. Commonwealth , 196 Va. 132, 137, 82 S.E.2d 603, 60 6 (1954))). Th e trial court's judgment will no t be set aside un less plainly wrong or without - 3 -evidence to support it. Josephs v. Commonwealth , 10 Va. App. 87, 99, 390 S.E.2d 491, 497 (1990) ( en banc ). Possession of a co ntrolled substance may be actual or constructive. See Archer v. Commonwealth , 225 Va. 416, 418, 303 S.E.2d 863, 863 (198 3). "To support a co nviction based upon constructive possession , 'the Commonwealth mu st point to evidence of acts, statemen ts, or conduct of the ac cused or other facts or circumstances which tend to show that the defend ant was aware of both the presence and character of the substa nce and that it was subject to his domini on and control.'" Drew v. Co mmonwealth , 230 Va. 471, 473, 338 S.E.2d 844, 845 (1986) (quoting Powers v. Commonwealth , 227 Va. 474, 476, 316 S.E.2d 739, 740 (1984)). See Eckhart v. Commonwealth , 222 Va. 447, 450, 281 S.E.2d 853, 855 (1981); McGee v. Commonwealth , 4 Va. App. 317, 322, 357 S.E.2d 738, 740 (1987). Although mere proxim ity to drugs is insuff icient to establish possession, su ch a circumstance may be probative in determining whether an accused po ssessed the drugs. Lane v. Co mmonwealth , 223 Va. 713, 716, 292 S.E.2d 358, 360 (1982). "Ownersh ip or occupancy of the vehicle in which the dr ugs are found is likewise a circumstance probativ e of possession." Glasco v. Commonwealth , 26 Va. App. 763, 774, 497 S.E.2d 150, 15 5 (1998) (citat ions omitted), aff'd , 257 Va. 433, 513 S. E.2d 137 (1999). Thus, in resolving this issue, we must consider "the totality of th e circumstances

- 4 -disclosed by the evidence." Womack v. Commonwealth , 220 Va. 5, 8, 255 S.E.2d 351, 353 (1979). Proof by circumstantial evidence "'is not suffic ient . . . if it engenders only a su spicion or even a prob ability of guilt.'" Littlejohn v. Commonwealth , 24 Va. App. 401, 41 4, 482 S.E.2d 853, 859 (1997) (quoting Hyde v. Co mmonwealth , 217 Va. 950, 955, 234 S.E.2d 74, 78 (197 7)). "'"All necessary ci rcumstances pr oved must be consistent with guilt and incons istent with innocence and exclude every re asonable hypothesis of innocence."'" Betancourt v. Commonwealth , 26 Va. App. 363, 373, 494 S.E.2d 873, 878 (1998) (quoting Stover v. Commonwealth , 222 Va. 618, 623, 283 S.E.2d 194, 196 (1981) (quoting Inge v. Co mmonwealth , 217 Va. 360, 366, 228 S.E.2d 563, 567 (1976))). "When, from the circum stantial evidence, 'it is just as likely, if not more likely,' that a 'reasonable hypo thesis of inno cence' explains the accused's conduct, the evidence ca nnot be said to rise to the level of proof beyond a reasonable doubt." Littlejohn , 24 Va. App. at 414, 482 S.E.2d at 85 9 (quoting Haywood v. Commonwealth , 20 Va. App. 562, 567-68, 458 S.E.2d 606, 609 (1995)). The Commonwe alth need not "'exclude every po ssible theory or surmise, '" but it must exclude those hypotheses "'which flow from th e evidence itself.'" Cantrell v. Commonwealth , 7 Va. App. 269, 289- 90, 373 S.E.2d 328, 338-39 (1988) (quoting Black v. Commonwealth , 222 Va. 838, 841, 284 S.E.2d 608, 609 (1981)).

- 5 -Appellant argues Crisman v. Commonwealth , 197 Va. 17, 87 S.E.2d 796 (1955), cont rols review of this case. We disagree. The facts in Crisman are distinctly different. Crisman was ri ding in the backseat of a car when it was stopped by the police. Id. at 18, 87 S.E.2d at 797. Three men were in the fron t seat, and Crisman's brother was in the back with him. Id. While search ing the vehicle, the police discovered "a sm all quantity of white powder on the floor in front of the rear seat". This powder (which was exhibited be fore [the trial court]) was collected on paper and turned over to a ch emist for th e police department. The chemis t testified that his analysis of the powder revealed that it contained .236 4 grains of heroin. Id. at 18-19, 87 S.E.2d at 797-98 (quoting the trial co urt). The owner of the car testif ied he had washed the car the prev ious day and seen nothing on the rear floorboa rd of the car. Id. at 19, 87 S.E.2d at 798. He also testifie d that no one ot her than Crisman and his brother, whom the owner ha d picked up earl ier that day as they were walkin g down the road, had been in the backseat of the car since it was washed. Id. The Supreme Court held the Commonweal th had not proven Crisman posses sed the heroin as any of the five men could have placed the drug on the floor. Id. at 20, 87 S.E.2d at 799. The Court noted the only evidence tying th e drug to Crisman was presence in the car.

- 6 -Here, the drugs we re found in plain view and within appellant's reac h. These circ umstances are pr obative of his guilt. See Brown v. Commonwealth , 5 Va. App. 48 9, 491-93, 364 S.E.2d 773, 774-75 (1988) (finding that the evidence was sufficient to su pport a conviction for possession of cocaine found in plain view and with in an arm's re ach of the accused, even though others were present) . Unlike the heroin in Crisman , the cocaine here was in la rge chunks, easi ly observable on the floor of the cab and ea sily retrievable. Additionally, the cocaine foun d in the cab wa s valued at $1,900. In Collins v. Commonwealth , we acknowledg ed that such

amounts are "'so mething of significant value and no t something that one would likely have abandoned or care lessly left in the area there.'" 13 Va. App. 177, 180, 409 S. E.2d 175, 176 (1991) (quoting the trial court) . It is unlikely th at someone other than appellant left almo st $2,000 worth of cocain e in plain view on the floor of the cab. More importantly, when the police acti vated their emergency equipment, appellant re moved his left hand fr om the back of the seat, "put his arm down , leaned forward, move [d] to the left and he bent down to the left where his shoulder was bent down below the rear window." This furtiv e gesture, when viewed in the totality of the circumstances, supports the trial cour t's finding that appellant was awar e of the presence and the characte r of the drug and that the drug was subject to his do minion and control.

- 7 -See Powell v. Commonwealth , 27 Va. App. 173, 178-79, 49 7 S.E.2d 899, 901 (1998). This Court previously has considered suchgestures evidence of possession. In Powell , for example, Powell was sitting on a low wall when he plac ed his clenched fist behind his back. Id. at 176, 497 S.E.2d at 900. When he brou ght his hand ba ck in front, the hand was unclenched. Id. Police found a small paper bag containing cocaine lyin g on the ground dire ctly below the spot where Powell had been sitting. Id. We held: Appellant's susp icious hand movement and the fact that coca ine was found pr ecisely where the appellant wo uld have dropped an object from his left hand be hind his back, support the inference th at appellant possessed the bag of cocaine an d discarded it on the ground behind him when the of ficers approached. Id. at 178-79, 497 S. E.2d at 901. See also Clarke v. Commonwealth , 32 Va. App. 286, 305-06 , 527 S.E.2d 484, 493-94 (2000) (affirming a co nviction for possessi on of fire arm while intending to distribute drugs based in part on evidence that appellant reac hed behind his seat toward a gun). More than mere presence pr oved appellant possessed the cocaine. From the evidence presented, the trial co urt could properly conclude that appellant was gu ilty of possession with the intent to distri bute. We affirm the conviction. Affirmed.

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