COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judge Benton and 

 Senior Judge Duff 

Argued at Alexandria, Virginia 

MICHAEL SUMMERS, S/K/A 

 MICHAEL SCOTT SUMMERS 

 MEMORANDUM OPINION* BY 

v. Record No. 0166-97-3 CHIEF JUDGE JOHANNA L. FITZPATRICK 

 JUNE 2, 1998 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF ROCKINGHAM COUNTY 

Porter R. Graves, Jr., Judge 

 Danita S. Alt for appellant. 

 Ruth Ann Morken, Assistant Attorney General 

(Richard Cullen, Attorney General, on brief), 

for appellee. 

 Michael Scott Summers (appellant) was convicted in a jury 

trial of possession with the intent to distribute methamphetamine 

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

evidence was insufficient to prove either possession or the 

intent to distribute. Finding no error, we affirm the 

conviction. 

 I. 

 Taken in the light most favorable to the Commonwealth, the 

evidence adduced at trial established that on April 30, 1995, 

Officer Rob Greer stopped a pickup truck for erratic driving at 

the intersection of Routes 42 and 257 in Rockingham County. 

Greer smelled the odor of alcohol in the truck and asked the 

 

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

designated for publication. 
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driver, Melody Ann Whitmer, to come to his vehicle. Tina 

Shifflett, who was Whitmer's sister and a passenger, remained in 

her seat in the center of the vehicle. Appellant, also a 

passenger and the owner of the truck, remained in his seat on the 

right side of the vehicle. Officer Greer asked Whitmer if she 

had been drinking, and she admitted having had four or five 

beers. She further stated that she had smoked a joint of 

marijuana earlier. Greer left Whitmer in the police car, 

returned to the truck, and obtained appellant's consent to search 

it. 

 The police found the following items in the truck: (1) a 

grocery bag wrapped around six plastic sandwich bags of marijuana 

under the driver's seat; (2) two plastic sandwich bag corners 

containing methamphetamine and tied shut with twist ties tucked 

between a package of Marlboro cigarettes and the outside lining 

of the package on the passenger side of the floor; (3) a plastic 

bag of marijuana on the floor beside the cigarette package; (4) 

three individually wrapped sandwich bag corners of 

methamphetamine in Whitmer's wallet near the gearshift; (5) a 

blue Crown Vic Royal bag containing two smoking devices near the 

wallet; (6) empty plastic sandwich bags with the corners cut off; 

a plastic bag that contained a cut corner of a plastic bag and 

small twist ties; (7) a pager; and (8) address and phone books. 

During a pat-down search, Greer recovered $165 in small bills 

from appellant. He asked appellant what he did for a living, and 
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appellant replied that he was unemployed. Appellant was arrested 

and charged with possession with the intent to distribute 

methamphetamine. 

 At trial, Whitmer testified that the drugs found in her 

wallet were not hers. She further testified that earlier in the 

evening appellant had supplied her with "methamphetamine [that] 

was in a cut off baggie." At the close of the Commonwealth's 

case, appellant moved to strike the evidence as insufficient to 

support a conviction on the grounds that at least one-third of 

the drugs were in Whitmer's wallet and there was no proof that 

the drugs were not for personal use. The trial court denied 

appellant's motion to strike. The jury convicted appellant of 

possession with the intent to distribute methamphetamine. He was 

sentenced in accordance with the verdict to five years in prison 

and a $500 fine. 

 II. 

 Appellant contends the Commonwealth failed to prove he 

possessed the methamphetamine. He argues the only link between 

himself and the methamphetamine was that it was found in his 

truck and that this fact was insufficient to establish 

constructive possession. 

 "To sustain a conviction for possession of a controlled 

substance . . . the evidence must prove beyond a reasonable doubt 

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

controlled substance." Jones v. Commonwealth, 17 Va. App. 572, 
 4 

574, 439 S.E.2d 863, 864 (1994). "Ownership of a vehicle where 

drugs are found and mere proximity to the drugs . . . are 

insufficient alone to prove possession." Scruggs v. 

Commonwealth, 19 Va. App. 58, 61, 448 S.E.2d 663, 665 (1994). 

However, 

 "[o]wnership or occupancy of a vehicle . . . 

where illicit drugs are found is a 

circumstance that may be considered together 

with other evidence tending to prove that the 

owner or occupant exercised dominion and 

control over items in the vehicle . . . in 

order to prove that the owner or occupant 

constructively possessed the contraband. 

Furthermore, proof that a person is in close 

proximity to contraband is a relevant fact 

that, depending on the circumstances, may 

tend to show that, as an owner or occupant of 

. . . a vehicle, the person necessarily knows 

of the presence, nature and character of a 

substance that is found there." 

Logan v. Commonwealth, 19 Va. App. 437, 444, 452 S.E.2d 364, 369 

(1994) (citing Burchette v. Commonwealth, 15 Va. App. 432, 435, 

425 S.E.2d 81, 83 (1992)). 

 When the sufficiency of the evidence is challenged on 

appeal, "'we must view all the evidence in the light most 

favorable to the Commonwealth and accord to the evidence all 

reasonable inferences fairly deducible therefrom.'" Phillips v. 

Commonwealth, 25 Va. App. 144, 155, 487 S.E.2d 235, 240-41 (1997) 

(citation omitted). The evidence in the instant case proved that 

the police found two cut-corner baggies of methamphetamine in the 

Marlboro cigarette package on the floor of the truck near where 

appellant had been sitting. Shifflett and Whitmer testified that 
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they smoked other brands of cigarettes. They also testified that 

appellant smoked Marlboros and that he had purchased some earlier 

that evening. From this testimony, the jury could conclude 

beyond a reasonable doubt that the package of Marlboros and the 

drugs tucked inside the wrapper belonged to appellant. 

 Additionally, despite appellant's attempt to impeach Whitmer 

as a codefendant, it was within the jury's province as finder of 

fact to credit her testimony that appellant had supplied 

methamphetamine to her earlier in the evening. See Marshall v. 

Commonwealth, 26 Va. App. 627, 633, 496 S.E.2d 120, 123 (1998). 

In light of appellant's ownership of the vehicle, his position in 

proximity to the drugs, the evidence that he owned the package of 

Marlboros, and the testimony that he had given Whitmer drugs that 

evening, we hold that the evidence was sufficient to prove beyond 

a reasonable doubt that appellant possessed methamphetamine. 

 III. 

 Appellant further contends the trial court erred in failing 

to strike the evidence regarding the intent to distribute. He 

argues that the small amount of drugs recovered was consistent 

with personal use and the evidence of intent to distribute was 

highly speculative. We disagree. 

 "'Because direct proof of [the] intent [to distribute] is 

often impossible, it must be shown by circumstantial evidence.'" 

Shears v. Commonwealth, 23 Va. App. 394, 402, 477 S.E.2d 309, 

313 (1996) (quoting Servis v. Commonwealth, 6 Va. App. 507, 524, 
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371 S.E.2d 156, 165 (1988)). "The quantity of the controlled 

substance is one factor to be considered. A small quantity of 

drugs, along with other circumstances, may support a conviction 

of possession with intent to distribute." Davis v. Commonwealth, 

12 Va. App. 728, 733, 406 S.E.2d 922, 925 (1991). Accord Stanley 

v. Commonwealth, 12 Va. App. 867, 869, 407 S.E.2d 13, 14-15 

(1991) ("a conviction for possession with the intent to 

distribute may be upheld even though the quantity of drugs seized 

is consistent with personal use"). "Indeed, where the facts 

support a finding that a defendant has recently consummated a 

sale or a distribution, that circumstance may support the 

inference that the person in possession has an intent to 

distribute drugs." Id. at 873-74, 407 S.E.2d at 17. 

 Whitmer testified that earlier that evening appellant had 

cut bags of methamphetamine in his pocket and distributed them to 

her and her sister. She identified the packages taken from the 

truck to be identical to the ones appellant possessed. Moreover, 

each of the two cut-corner baggies in the Marlboro package that 

was found under appellant's seat in the truck contained 

approximately 0.70 grams of methamphetamine and was tied with a 

cut-length twist tie. The officers also found empty baggies with 

the corners cut off, cut-corner baggies, and twist ties. 

Although the Commonwealth's expert admitted that the amount of 

drugs was consistent with personal use, he stated that "people 

that buy for personal use don't necessarily repackage their own 
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personal use supply." The expert testified that the presence of 

the items such as twist ties and cut corners of baggies was not 

consistent with personal use. This circumstantial evidence of an 

intent to distribute that flows from the packages, combined with 

Whitmer's direct testimony that appellant supplied her with 

methamphetamine on the night in question, was sufficient to prove 

beyond a reasonable doubt that appellant had the intent to 

distribute the methamphetamine in his possession. 

 For the foregoing reasons, the conviction is affirmed. 

 Affirmed.