COURT OF APPEALS OF VIRGINIA 

Present: Judges Bumgardner, Humphreys and Clements 

Argued at Richmond, Virginia 

HERMAN RODNEY JACKSON 

 MEMORANDUM OPINION* BY 

v. Record No. 2823-99-4 JUDGE ROBERT J. HUMPHREYS 

 NOVEMBER 14, 2000 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA 

Wiley R. Wright, Jr., Judge Designate 

 Kevin T. Gaynor, Assistant Public Defender, 

for appellant. 

 Shelly R. James, Assistant Attorney General 

(Mark L. Earley, Attorney General, on brief), 

for appellee. 

 

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

designated for publication.

 Herman Rodney Jackson appeals his conviction, after a bench 

trial, for possession of cocaine with intent to distribute, in 

violation of Code § 18.2-248. Specifically, Jackson argues that 

the evidence was insufficient to support the conviction. 

 "Where the sufficiency of the evidence is challenged after 

conviction, it is our duty to consider it in the light most 

favorable to the Commonwealth and give it all reasonable 

inferences fairly deducible therefrom. We should affirm the 

judgment unless it appears from the evidence that the judgment 

is plainly wrong or without evidence to support it. Code 
§ 8-491." Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 

S.E.2d 534, 537 (1975). 

 "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). "[P]roof of actual possession, [however,] is not 

required; proof of constructive possession will suffice. 

Constructive possession may be established when there are acts, 

statements, or conduct of the accused or other facts or 

circumstances which tend to show that the [accused] was aware of 

both the presence and character of the substance and that it was 

subject to his dominion and control." Id. at 426, 497 S.E.2d at 

872. 

 Here, Jackson was a passenger in a black Volkswagen which 

was pulled over in response to a radio dispatch stating that the 

passengers in the Volkswagen had been observed smoking 

marijuana. The Volkswagen was stopped and blocked in, from the 

front and back, by two Alexandria Police Department squad cars. 

Investigator Jesse Meekins immediately removed Jackson from the 

passenger side of the Volkswagen while the other three officers 

dealt with the remaining three passengers. 

 Meekins took Jackson by the hands, pulled him out of the 

car, and led him to the rear of his squad car, which was parked 

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behind the Volkswagen. Meekins handcuffed Jackson and attempted 

to search him. However, Jackson struggled and moved around, 

requiring Meekins to repeatedly order him to stop moving. 

Officer Meekins lost sight of Jackson's hands for a brief moment 

and noticed that Jackson was "messing with [the] waistline" to 

his pants. Meekins continued the search and observed that 

Jackson was wearing two pairs of sweatpants. From them, he 

recovered a pipe and $103.00, which was made up of five 

twenty-dollar bills and three one-dollar bills. 

 A few moments later, Officer George approached the two to 

see what the struggle was about. When he did this, he saw "a 

piece of clear plastic that was cylindrical and appeared to have 

numerous rock-like objects in it that was sitting directly 

behind the right rear tire of [Meekins'] vehicle[,] and about a 

foot in front of [Jackson's] feet." Although the package was 

directly behind the tire of Meekins' squad car, it showed no 

signs of having been run over by the tire. Furthermore, no one 

other than Meekins and Jackson had been standing in that area 

since the squad car had stopped behind the Volkswagen. 

 Officer George testified that the package contained "12 

individually wrapped rocks of crack cocaine." After Officer 

George was established as an expert in the sale and distribution 

of drugs, he testified that each rock sold on the street for 

approximately $20, yielding a total street value of $240.00. He 

testified that the quantity and packaging of the cocaine was 

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inconsistent with personal use. Officer George also testified 

that, in response to Meekins' question asking Jackson if he was 

a narcotics user, Jackson said "no", then "said 'I s[m]oke 

marijuana.'" 

 Meekins testified that, while interviewing Jackson, he had 

placed the recovered package of crack cocaine on the table and 

asked Jackson, "You're not going to sell this while your brother 

was in the car [sic]?" Jackson replied "No." Keeping his hand 

on the package, Meekins then said, "This was for later, right?". 

Jackson replied, "Yeah." Jackson then stated, "No, I don't know 

where that came from . . . I plead the fifth." 

 "Although mere proximity to drugs is insufficient to 

establish possession, it is a circumstance which may be 

probative in determining whether an accused possessed such 

drugs. " Glasco v. Commonwealth, 26 Va. App. 763, 774, 497 

S.E.2d 150, 155 (1998) (citing Womack v. Commonwealth, 220 Va. 

5, 8, 255 S.E.2d 351, 353 (1979)), aff'd, 257 Va. 433, 513 

S.E.2d 137 (1999). 

 In the present case, the "totality of the circumstances" 

demonstrates that it was reasonable to conclude the drugs came 

from Jackson's person. First, Jackson admitted that he knew 

about the drugs, before retracting his statement. In addition, 

there is simply no other plausible explanation to establish how 

the drugs came to rest behind the rear tire of the squad car and 

directly in front of Jackson's feet, other than to conclude that 

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the drugs came from Jackson's person. See Johnson v. 

Commonwealth, 12 Va. App. 150, 153, 402 S.E.2d 502, 504 

(1991)(where drugs were found in a relatively private area at 

the very point where a chase initiated, and appellant made a 

voluntary acknowledgment that the object found was a "bag of 

drugs", the finder of fact could infer that the appellant had 

sufficient familiarity with what was on the ground to infer that 

he had it in his possession). 

 It is well settled that "[c]ircumstantial evidence may 

establish the elements of a crime, provided it excludes every 

reasonable hypothesis of innocence. However, the Commonwealth 

need only exclude reasonable hypotheses of innocence that flow 

from the evidence, not those that spring from the imagination of 

the defendant. Whether a hypothesis of innocence is reasonable 

is a question of fact, and a finding by the trial court is 

binding on appeal unless plainly wrong." Glasco at 773-774, 497 

S.E.2d at 155. 

 Considering the evidence in the light most favorable to the 

Commonwealth, we cannot hold that the trial court's conclusion 

that Jackson constructively possessed the crack cocaine was 

"plainly wrong". 

 Finally, "[p]ossession with intent to distribute is a crime 

which requires an act coupled with a specific intent. 

[However,] [b]ecause direct proof of intent is often impossible 

to produce, it may, and frequently must, be shown by 

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circumstantial evidence." Barlow v. Commonwealth, 26 Va. App. 

421, 429-430, 494 S.E.2d 901, 905 (1998)(citations omitted). 

 "In proving intent, various types of circumstantial 

evidence may be appropriate -- evidence concerning the quantity 

of drugs and cash possessed, the method of packaging, . . . 

whether appellant himself used drugs, and the absence of 

evidence suggestive of personal use." See Poindexter v. 

Commonwealth, 16 Va. App. 730, 734-735, 432 S.E.2d 527, 530 

(1993); Colbert v. Commonwealth, 219 Va. 1, 4, 244 S.E.2d 748, 

749 (1978). 

 Here, Jackson possessed a quantity of drugs that Officer 

George testified was inconsistent with personal use. The drugs 

were individually packaged, and Jackson had five twenty-dollar 

bills on his person. In addition, Jackson told Officer Meekins 

that he didn't do cocaine, but admitted he smoked marijuana. 

This admission was supported by the marijuana pipe which was 

found on his person. Finally, Jackson effectively admitted to 

Officer Meekins that he intended to sell the cocaine "later," 

and then later retracted his statement. 

 Based on this evidence, we hold that the trial court could 

conclude beyond a reasonable doubt that Jackson intended to 

distribute the crack cocaine. 

Affirmed.

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