COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Elder and Bumgardner 

Argued at Richmond, Virginia 

VAN DERRICK TUCKER 

 MEMORANDUM OPINION* BY 

v. Record No. 0348-97-2 JUDGE RUDOLPH BUMGARDNER, III 

 JUNE 16, 1998 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF THE CITY OF PETERSBURG 

James F. D'Alton, Jr., Judge 

 (Paul C. Bland; Beverly M. Murray, on brief), 

for appellant. Appellant submitting on 

brief. 

 Ruth Ann Morken, Assistant Attorney General 

(Richard Cullen, Attorney General, on brief), 

for appellee. 

 The defendant was charged with possession of cocaine with 

the intent to distribute. After a bench trial, he was found 

guilty. He appeals his conviction arguing that there was 

insufficient evidence. Finding that the evidence was sufficient 

to support the conviction, we affirm. 

 Officer E.S. Jones arrested the defendant by executing an 

outstanding arrest warrant for a parole violation. The defendant 

tried to escape arrest, but the officer was able to overcome him. 

 This officer placed handcuffs on the defendant, conducted a 

quick pat-down search but did not check his back pockets, lower 

legs, or shoes. Another officer transported the defendant to 

jail. While driving him, the officer saw the defendant squirm 

around and apparently try to get into his back pocket. Nothing 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
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was found in the vehicle where the defendant had been seated. 

 The defendant was placed in a holding cell and watched by 

two officers, Officer Jeanette Richardson and the officer who 

transported him. He was the only one in the cell. At first he 

was seated on a processing bench. He kept moving around and was 

told to be still. He finally got up and walked ten to fifteen 

feet to a desk and chair. These were at the other end of the 

cell at the point farthest from the officers. When seated at the 

desk, the defendant was partly out of the officers' sight. While 

there, the defendant appeared to be reaching into his right 

pocket and messing with his shoes. Richardson remarked to the 

other officer that the defendant was trying to ditch something. 

When Officer Jones arrived, the defendant's clothes were 

disheveled, one pocket was pulled out, and his right shoe was 

off. The other officer had Jones check the area where the 

defendant had been sitting. In plain sight and within one to two 

feet of where the defendant had been seated, Jones found cocaine. 

 Richardson had been in that area twenty minutes before, she had 

sat where the defendant had been seated, and she saw no drugs 

there then. Only Jones and the defendant had been back in that 

area. 

 Where an appellant challenges the sufficiency of the 

evidence, the evidence must be viewed in the light most favorable 

to the Commonwealth, granting it all reasonable inferences fairly 

deducible therefrom. See Higginbotham v. Commonwealth, 216 Va. 

349, 352, 218 S.E.2d 534, 537 (1975). We may not disturb a 
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verdict unless it was "plainly wrong or without evidence to 

support it." Stockton v. Commonwealth, 227 Va. 124, 145, 314 

S.E.2d 371, 385 (1984). On appeal this Court 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 to be drawn 

therefrom." Wright v. Commonwealth, 196 Va. 132, 137, 82 S.E.2d 

603, 606 (1954). 

 From the evidence, the trial court could properly infer that 

the defendant had the illegal drugs on his person. When the 

police arrested him, they did not thoroughly search the 

defendant. While being transported he appeared to be trying to 

get into his pocket, but nothing was found where he was seated. 

In the cell he moved away from the jailer and was partially 

concealed. He again appeared to be reaching into his pocket. 

His clothes were disheveled, his pocket was pulled out, and his 

shoe was off. Immediately after he left the cell, the drugs were 

found where he had been seated when acting strangely. He had 

been alone in the cell, and only twenty minutes before an officer 

had looked at the area and seen nothing where the drugs were 

found. This evidence supports the inference that the drugs were 

discarded by the defendant when he was finally able to remove 

them from his person. 

 Finding evidence to support the findings of the trial court, 

we affirm. 

 Affirmed.
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Benton, J., dissenting. 

 The majority concludes that the circumstances were 

sufficient to permit an inference that Van Derrick Tucker 

possessed the cocaine found in the holding cell. I would reverse 

the conviction because the evidence was insufficient to prove 

beyond a reasonable doubt that Tucker constructively possessed 

the cocaine. 

 Because no evidence proved that Tucker was ever in actual 

possession of the cocaine, the question is whether Tucker 

constructively possessed the cocaine. His proximity to the 

twenty-three bags of cocaine is insufficient to prove beyond a 

reasonable doubt that he constructively possessed them. See

Clodfelter v. Commonwealth, 218 Va. 619, 623, 238 S.E.2d 820, 822 

(1977). In order to prove that Tucker constructively possessed 

the cocaine, the Commonwealth was required to prove facts and 

circumstances that indicated that Tucker was aware of the 

presence of the cocaine and exercised dominion and control over 

it. Drew v. Commonwealth, 230 Va. 471, 473, 338 S.E.2d 844, 845 

(1986). Moreover, in order for circumstantial evidence to prove 

guilt beyond a reasonable doubt, the evidence must be wholly 

consistent with guilt and wholly inconsistent with innocence. 

See Bishop v. Commonwealth, 227 Va. 164, 169, 313 S.E.2d 390, 393 

(1984). 

 Tucker fled when the officer approached to arrest him for a 

parole violation. After the officer caught Tucker and struggled 

with him, the officer put handcuffs on Tucker and searched Tucker 
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before putting him in a police vehicle. The officer did not find 

the twenty-three bags of cocaine on Tucker. The officer does not 

suggest how she could not have discovered twenty-three bags of 

cocaine that the majority infers were then in Tucker's 

possession. 

 Although the officer who transported Tucker to jail 

testified at trial that he saw Tucker "squirming around," he 

obviously was not concerned that Tucker may have had a weapon or 

contraband because the officer did not search Tucker. When that 

officer delivered Tucker to the jail, he put Tucker in a holding 

cell. The holding cell was accessible to a variety of people and 

used to hold arrested persons. The jail was very busy at that 

time. No one searched the holding cell before Tucker was placed 

there. In the holding cell were a desk, a chair, and a bench. 

Furthermore, the officer who was present and watching Tucker "the 

whole time" did not see Tucker with the twenty-three bags of 

cocaine and did not see Tucker drop anything. 

 Viewed as a whole, the circumstantial evidence does not 

prove beyond a reasonable doubt that Tucker possessed the 

cocaine. "Suspicion, no matter how strong, is not enough. 

Convictions cannot rest upon speculation and conjecture." 

Littlejohn v. Commonwealth, 24 Va. App. 401, 415, 482 S.E.2d 853, 

860 (1997) (citations omitted). Moreover, when evidence is 

equally susceptible of two interpretations, one of which is 

consistent with the innocence of the accused, the trier of fact 

cannot arbitrarily adopt that interpretation which incriminates 
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the accused. See Corbett v. Commonwealth, 210 Va. 304, 307, 171 

S.E.2d 251, 253 (1969). 

 The evidence proved that the police officer searched Tucker 

and did not find the twenty-three bags of cocaine. The second 

police officer then placed Tucker in a holding cell that had not 

been searched and that had been used to detain other prisoners. 

A third police officer watched Tucker while he was in the holding 

cell and did not see Tucker with the twenty-three bags of 

cocaine. Only after Tucker was searched and put in the cell that 

had not been searched did the police find twenty-three bags of 

"chunk-like" cocaine under a desk. On these facts, this 

conviction is supported only by speculation and conjecture that 

somehow Tucker carried the twenty-three bags of cocaine into the 

holding cell. 

 Because the evidence in this case was wholly circumstantial 

and because it did not exclude the reasonable hypothesis of 

innocence that another prisoner or person left the twenty-three 

bags of cocaine in the cell, the evidence was insufficient to 

prove Tucker's guilt beyond a reasonable doubt. I dissent.