COURT OF APPEALS OF VIRGINIA 

Present: Judges Bray, Frank and Clements 

Argued at Chesapeake, Virginia 

ANTOINE MAURICE 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, Assistant Attorney General 

(Randolph A. Beales, Attorney General, on 

brief), for appellee. 

 

* Pursuant to Code § 17.1-413, this opinion is not 

designated for publication.

 Antoine Maurice Richardson (appellant) was convicted in a 

bench trial of possession with the intent to distribute cocaine, 

in violation of Code § 18.2-248. On appeal, he contends the trial 

court erred in finding the evidence was sufficient to convict. 

Finding no error, we affirm the judgment of the trial court. 

BACKGROUND

 On March 15, 2000, Newport News Police Detective D.L. 

Williams was looking for a suspect who was wanted on an 

outstanding felony warrant when he saw appellant coming out of a 

house. Williams could see appellant's back but not his face. The 
detective observed him get into a yellow cab parked in front of 

the house. Appellant was the only backseat passenger. From the 

rear, appellant fit the description of the suspect sought by 

Williams. 

 After the detective obtained backup, the police decided to 

stop the cab. Appellant had been riding in the middle of the 

backseat "with his arm thrown around the rear of the left seat" 

prior to the police activating their lights, but 

[w]hen he realized the cab was being stopped, 

[the detective] observed [appellant] put his 

arms down, lean forward, move to the left and 

he bent down to the left where his shoulder 

was bent below the rear window. Prior to 

that, [the detective] could see both 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. McArthur assisted in stopping the cab. After 

appellant got out of the vehicle, McArthur saw "in plain view on 

the left-hand side, right as the seat back falls, if you follow 

the line of the seat back, there was a plastic bag, a clear 

plastic bag which contained what [he] believed to be crack 

cocaine, suspected crack cocaine on the floorboard [of the cab] in 

plain view." Nothing obstructed his view of the item. "The 

cocaine was in the hump in the floorboard. . . . It wasn't 

actually under the seat, but it was in line if you would follow 

the back of the seat down." 

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 Inside the 5- by 4-inch plastic bag were smaller bags, each 

containing a number of separate glassine envelopes. Several large 

chunks of rock cocaine 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 the drugs, the evidence 

would be sufficient to show he did so with the intent to 

distribute. Appellant challenged only the sufficiency of the 

evidence as to possession. 

 In overruling the motion to strike the evidence, the trial 

court found appellant'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 favorable to the Commonwealth, 

granting to it all reasonable inferences fairly deducible 

therefrom. See Higginbotham v. Commonwealth, 216 Va. 349, 352, 

218 S.E.2d 534, 537 (1975). "In so doing we must '"discard the 

evidence of the accused in conflict with that of the Commonwealth, 

and regard as true all the credible evidence favorable to the 

Commonwealth and all fair inferences that may be drawn 

therefrom."'" Norman v. Commonwealth, 2 Va. App. 518, 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, 606 (1954))). The trial court's 

judgment will not be set aside unless plainly wrong or without 

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evidence to support it. Josephs v. Commonwealth, 10 Va. App. 87, 

99, 390 S.E.2d 491, 497 (1990) (en banc). 

 Possession of a controlled substance may be actual or 

constructive. See Archer v. Commonwealth, 225 Va. 416, 418, 303 

S.E.2d 863, 863 (1983). "To support a conviction based upon 

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 and control.'" Drew v. Commonwealth, 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 proximity to drugs is insufficient to establish 

possession, such a circumstance may be probative in determining 

whether an accused possessed the drugs. Lane v. Commonwealth, 223 

Va. 713, 716, 292 S.E.2d 358, 360 (1982). "Ownership or occupancy 

of the vehicle in which the drugs are found is likewise a 

circumstance probative of possession." Glasco v. Commonwealth, 26 

Va. App. 763, 774, 497 S.E.2d 150, 155 (1998) (citations omitted), 

aff'd, 257 Va. 433, 513 S.E.2d 137 (1999). Thus, in resolving 

this issue, we must consider "the totality of the circumstances 

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disclosed by the evidence." Womack v. Commonwealth, 220 Va. 5, 8, 

255 S.E.2d 351, 353 (1979). 

 Proof by circumstantial evidence "'is not sufficient . . . if 

it engenders only a suspicion or even a probability of guilt.'" 

Littlejohn v. Commonwealth, 24 Va. App. 401, 414, 482 S.E.2d 853, 

859 (1997) (quoting Hyde v. Commonwealth, 217 Va. 950, 955, 234 

S.E.2d 74, 78 (1977)). "'"All necessary circumstances proved must 

be consistent with guilt and inconsistent with innocence and 

exclude every reasonable 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. Commonwealth, 217 Va. 360, 366, 228 

S.E.2d 563, 567 (1976))). "When, from the circumstantial 

evidence, 'it is just as likely, if not more likely,' that a 

'reasonable hypothesis of innocence' explains the accused's 

conduct, the evidence cannot be said to rise to the level of proof 

beyond a reasonable doubt." Littlejohn, 24 Va. App. at 414, 482 

S.E.2d at 859 (quoting Haywood v. Commonwealth, 20 Va. App. 562, 

567-68, 458 S.E.2d 606, 609 (1995)). The Commonwealth need not 

"'exclude every possible theory or surmise,'" but it must exclude 

those hypotheses "'which flow from the 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)). 

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 Appellant argues Crisman v. Commonwealth, 197 Va. 17, 87 

S.E.2d 796 (1955), controls review of this case. We disagree. 

The facts in Crisman are distinctly different. 

 Crisman was riding 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 front seat, and Crisman's brother was in the back with 

him. Id. While searching the vehicle, the police 

discovered "a small quantity of white powder 

on the floor in front of the rear seat". 

This powder (which was exhibited before [the 

trial court]) was collected on paper and 

turned over to a chemist for the police 

department. The chemist testified that his 

analysis of the powder revealed that it 

contained .2364 grains of heroin. 

Id. at 18-19, 87 S.E.2d at 797-98 (quoting the trial court). The 

owner of the car testified he had washed the car the previous day 

and seen nothing on the rear floorboard of the car. Id. at 19, 87 

S.E.2d at 798. He also testified that no one other than Crisman 

and his brother, whom the owner had picked up earlier that day as 

they were walking down the road, had been in the backseat of the 

car since it was washed. Id. 

 The Supreme Court held the Commonwealth had not proven 

Crisman possessed 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 the drug to Crisman was 

presence in the car. 

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 Here, the drugs were found in plain view and within 

appellant's reach. These circumstances are probative of his 

guilt. See Brown v. Commonwealth, 5 Va. App. 489, 491-93, 364 

S.E.2d 773, 774-75 (1988) (finding that the evidence was 

sufficient to support a conviction for possession of cocaine found 

in plain view and within an arm's reach of the accused, even 

though others were present). Unlike the heroin in Crisman, the 

cocaine here was in large chunks, easily observable on the floor 

of the cab and easily retrievable. 

 Additionally, the cocaine found in the cab was valued at 

$1,900. In Collins v. Commonwealth, we acknowledged that such 

amounts are "'something of significant value and not something 

that one would likely have abandoned or carelessly left in the 

area there.'" 13 Va. App. 177, 180, 409 S.E.2d 175, 176 (1991) 

(quoting the trial court). It is unlikely that someone other than 

appellant left almost $2,000 worth of cocaine in plain view on the 

floor of the cab. 

 More importantly, when the police activated their emergency 

equipment, appellant removed his left hand from 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 furtive gesture, when viewed in the 

totality of the circumstances, supports the trial court's finding 

that appellant was aware of the presence and the character of the 

drug and that the drug was subject to his dominion and control. 

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See Powell v. Commonwealth, 27 Va. App. 173, 178-79, 497 S.E.2d 

899, 901 (1998). 

 This Court previously has considered such gestures evidence 

of possession. In Powell, for example, Powell was sitting on a 

low wall when he placed his clenched fist behind his back. Id. at 

176, 497 S.E.2d at 900. When he brought his hand back in front, 

the hand was unclenched. Id. Police found a small paper bag 

containing cocaine lying on the ground directly below the spot 

where Powell had been sitting. Id. We held: 

Appellant's suspicious hand movement and the 

fact that cocaine was found precisely where 

the appellant would have dropped an object 

from his left hand behind his back, support 

the inference that appellant possessed the 

bag of cocaine and discarded it on the ground 

behind him when the officers 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 conviction for possession of firearm while 

intending to distribute drugs based in part on evidence that 

appellant reached behind his seat toward a gun). 

 More than mere presence proved appellant possessed the 

cocaine. From the evidence presented, the trial court could 

properly conclude that appellant was guilty of possession with the 

intent to distribute. We affirm the conviction. 

 Affirmed.

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