COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Bray and Senior Judge Overton 

Argued at Norfolk, Virginia 

SCLESTER UZZLE, JR. 

 MEMORANDUM OPINION* BY 

v. Record No. 0192-98-1 JUDGE RICHARD S. BRAY 

 APRIL 13, 1999 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF ISLE OF WIGHT COUNTY 

Westbrook J. Parker, Judge 

 Michael J. Lutke, Assistant Public Defender, 

for appellant. 

 John H. McLees, Jr., Assistant Attorney 

General (Mark L. Earley, Attorney General, on 

brief), for appellee. 

 

 *Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, 

this opinion is not designated for publication. 

 Sclester Uzzle, Jr. (defendant) was convicted in a bench 

trial for possession of cocaine with intent to distribute, a 

violation of Code § 18.2-248. On appeal, defendant challenges 

the sufficiency of the evidence to support the conviction. 

Finding no error, we affirm the trial court. 

 The parties are fully conversant with the record, and this 

memorandum opinion recites only those facts necessary to a 

disposition of the appeal. 

 In reviewing the sufficiency of the evidence, we examine 

the record in “the light most favorable to the Commonwealth, 
granting to it all reasonable inferences fairly deducible 

therefrom,” Martin v. Commonwealth, 4 Va. App. 438, 443, 358 

S.E.2d 415, 418 (1987), discarding all conflicting evidence of 

the accused. See Lea v. Commonwealth, 16 Va. App. 300, 303, 429 

S.E.2d 477, 479 (1993). The credibility of witnesses, the 

weight accorded testimony, and the inferences to be drawn from 

proven facts are matters to be determined by the fact finder. 

See Long v. Commonwealth, 8 Va. App. 194, 199, 379 S.E.2d 473, 

476 (1989). The judgment of a trial court will be disturbed on 

appeal only if plainly wrong or unsupported by the evidence. 

See Code § 8.01-680. 

I. 

 On the evening of May 31, 1997, Isle of Wight Deputy 

Sheriff Timothy Worrell was engaged in undercover surveillance 

of a parking area that served the Windsor Court Apartments. 

Positioned in the rear of an unmarked vehicle and aided by a 

telescopic device, Worrell observed the activities of defendant 

and an unidentified man from 8:05 p.m. until 9:30 p.m. Worrell 

testified that defendant 

 appeared to be working with [the other] male 

. . . [who] would approach . . . vehicles, 

make verbal contact, . . . and then would 

make some type of hand-to-hand exchange. 

After this would take place, [Worrell] could 

see what appeared to be money being handed 

to [defendant] from the other . . . male. 

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As Worrell watched, the man approached “ten to twelve” cars and, 

“after every . . . two to three . . ., he and [defendant] would 

get together.” 

 Worrell further recalled that, 

 [a]t 9:30 p.m., the . . . unknown . . . 

male left the premises . . . and [defendant] 

began approaching vehicles . . . . After he 

would walk up to the car [and briefly talk] 

with the people, he would leave and go 

behind . . . a six, seven foot fence 

enclosed around [a] dumpster. He would 

. . . then come out and walk back up to the 

vehicle, make some type of reaching in 

motion as if he was handing someone 

something. 

Defendant interacted with the occupants of “four or five 

vehicles” and walked behind the dumpster, enclosed on three 

sides by the fence, on each occasion. Worrell noticed that 

defendant went to a white Honda car parked “right behind the 

dumpster” “two or three times,” “raise[d] the trunk and then 

shut the [lid] back down,” but was unable to “tell if 

[defendant] was fiddling or anything” in the trunk. Worrell 

acknowledged that “other people . . . were in the . . . area,” 

although “not in the close proximity that [defendant] went to 

the fence.” 

 At approximately 10:45 p.m., Worrell summoned Sheriff’s 

Captain Joseph Willard to the scene. As Willard and Deputy 

Lindsay arrived, defendant was seen “giving . . . change” to an 

unknown woman. Willard advised defendant “why [they] were 

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there,” and “did [a] pat . . . down . . . [for] weapons.” A 

consent search of defendant’s person produced two pagers and 

“some change.” Willard communicated his findings to Worrell, 

and Worrell directed him “to the dumpster site.” During the 

encounter, defendant was “gesturing his eyes towards the 

dumpster area.” When Willard “checked there,” he “found two 

canisters sitting on the rail inside of the fence,” “just a hand 

reach in,” at a point where the “fence was leaned back.” Upon 

inspection, Willard discovered that the canisters contained 

sixteen “rocks” of cocaine. 

 A subsequent consent search of the Honda revealed an open 

box in the trunk which contained “a wad of U.S. currency folded 

up and stuck beside [a] distributor cap.” The currency totaled 

$586, specifically, (1) $100 bill, (1) $50 bill, (20) $20 bills, 

(3) $10 bills, (1) $5 bill, and (1) $1 bill. Defendant claimed 

that his sister owned the Honda and denied knowledge of the 

money. 

 Qualified as an expert in the sale and distribution of 

cocaine in Isle of Wight County, Worrell testified that “[i]t’s 

very common for cocaine to be packaged in a container like [the 

canisters found]. They take the cocaine out of the container 

and hand the rock to the [purchaser]” without separate 

packaging. Worrell opined that each rock would sell for $20 and 

that a $20 bill was the customary currency in such transactions. 

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 Defendant’s wife testified that she owned the vehicle and 

had placed the money in the trunk, hidden in a “closed” box and 

unknown to defendant. Other defense witnesses testified that 

defendant passed them cigarettes from the car while they talked 

with him in the parking area at approximately 10:00 p.m. on the 

offense date. Defendant’s niece recalled speaking with him from 

her car “around 10:00 p.m.” Defendant testified that he had 

arrived at the Windsor Court Apartments to “play cards” in the 

early afternoon and “went outside . . . to stretch” at 

approximately 9:30 or 10:00 p.m. for “about thirty-five 

minutes.” He denied approaching any vehicles earlier in the 

evening, opening the trunk of the Honda, or walking behind the 

dumpster. 

II. 

 It is well settled that 

possession of a controlled substance may be 

actual or constructive. “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.’” 

McGee v. Commonwealth, 4 Va. App. 317, 322, 357 S.E.2d 738, 740 

(1987) (citations omitted). “Circumstantial evidence is as 

competent and is entitled to as much weight as direct evidence, 

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provided it is sufficiently convincing to exclude every 

reasonable hypothesis except that of guilt.” Coleman v. 

Commonwealth, 226 Va. 31, 53, 307 S.E.2d 864, 876 (1983) 

(citations omitted), cert. denied, 465 U.S. 1109 (1984). 

However, the Commonwealth “‘is not required to disprove every 

remote possibility of innocence, but is, instead, required only 

to establish guilt of the accused to the exclusion of a 

reasonable doubt.’” Cantrell v. Commonwealth, 7 Va. App. 269, 

289, 373 S.E.2d 328, 338 (1988) (citation omitted). “The 

hypotheses which the prosecution must reasonably exclude are 

those ‘which flow from the evidence itself, and not from the 

imagination of defendant’s counsel.’” Id. at 289-90, 373 S.E.2d 

at 338-39 (citation omitted). 

 Here, the evidence disclosed that both defendant and his 

companion were repeatedly approaching cars and engaging in 

exchanges with the occupants over a period of several hours. 

The unidentified man was seen occasionally passing money to 

defendant. Later, while alone, defendant continued to stop and 

converse with persons in automobiles, disappear behind the 

dumpster in the vicinity of the hidden cocaine, return to the 

waiting car and effect an exchange. He sometimes opened the 

trunk of the Honda, parked adjacent to the dumpster, which 

contained substantial cash in denominations consistent with the 

sale of cocaine “rocks” like those found in the canisters. 

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Additionally, defendant possessed two pagers, “regularly 

recognized . . . tools of the drug trade.” White v. 

Commonwealth, 25 Va. App. 662, 668, 492 S.E.2d 451, 454 (1997) 

(en banc). 

 Such circumstances sufficiently proved that defendant was 

distributing cocaine to persons in automobiles from a cache 

within the dumpster fence and depositing the proceeds in the 

trunk of his wife’s car. Defendant’s lies to police, and, 

later, at trial, provided further indicia of guilt. See, e.g., 

Daung Sam v. Commonwealth, 13 Va. App. 312, 320, 411 S.E.2d 832, 

837 (1991). 

 Accordingly, we affirm the decision of the trial court. 

 Affirmed.

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Benton, J., dissenting. 

 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 [accused] 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)). "But mere proximity 

to a controlled drug is insufficient to establish possession." 

Fogg v. Commonwealth, 216 Va. 394, 395, 219 S.E.2d 672, 673 

(1975). 

[P]robability of guilt is insufficient to 

warrant a criminal conviction. Suspicious 

circumstances "'no matter how grave or 

strong, are not proof of guilt sufficient to 

support a verdict of guilty. The actual 

commission of the crime by the accused must 

be shown by evidence beyond a reasonable 

doubt to sustain his conviction.'" 

Suspicious circumstances alone are not 

sufficient to prove knowing possession of a 

controlled substance. 

Burchette v. Commonwealth, 15 Va. App. 432, 438-39, 425 S.E.2d 

81, 86 (1992) (citations omitted). 

 The evidence proved that Sclester Uzzle, Jr. did not 

actually possess cocaine. He had no cocaine on his person and 

no evidence proved that he touched the containers of cocaine 

that the police found sitting on a rail inside the fence, which 

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surrounded three sides of the large trash "dumpster." The 

surveillance officer saw Uzzle go behind the fenced area but 

could not see his activity because the dumpster obstructed the 

officer's view. The evidence proved that the fenced area was in 

the parking area of an apartment complex and that other people 

were walking by the fenced area. 

 The officers detained neither the vehicles that Uzzle 

approached nor any of the other persons who approached the 

vehicles. Thus, the officer could only have speculated as to 

the nature of Uzzle's contact with those persons. Indeed, the 

conviction is based upon pure speculation concerning Uzzle's 

activities. In a criminal case, where the quantum of proof must 

be beyond a reasonable doubt, the imperative to secure a 

conviction free of speculation, surmise, and conjecture is 

constitutionally based. See In re Winship, 397 U.S. 358 (1970). 

"[V]erdict[s] . . . based only upon speculation and conjecture 

. . . cannot be permitted to stand." Dunn v. Commonwealth, 222 

Va. 704, 705-06, 284 S.E.2d 792, 793 (1981). 

 For these reasons, I would reverse the conviction. 

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