COURT OF APPEALS OF VIRGINIA
Present: Judges Annunziata, Frank and McClanahan Argued at Chesapeake, Virginia

DAMIAN L. HICKS, S/K/A DAMIAN LAFFIT HICKS MEMORANDUM OPINION ∗ BY v. Record No. 0760-03-1 JUDGE ELIZABETH A. McCLANAHAN APRIL 6, 2004 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH J. Warren Stephens, Judge Designate Von L. Piersall, III (Levin, Levi n & Tuthill, P.C., on brief), for appellant. Susan L. Parrish, Assistant Attorney General (Jerry W. Kilgore, Attorney General; Amy L. Marshall , Assistant Attorney General, on brief), for appellee.
Damian L. Hicks appeals his conviction in the Circuit Court of the C ity of Portsmouth for possession of a controlled substance with intent to distribute, in viola tion of Code § 18.2-248. On appeal, Hicks contends that the trial court erred in finding that the evidence on possession was sufficient to sustain his convi ction. For the reasons that follo w, we affirm the trial court. I. Background When the sufficiency of the evidence is cha llenged on appeal, “we review the evidence in the light most favorable to the Commonwealth, gr anting to it all reasonable inferences fairly deducible therefrom.” Bright v. Commonwealth , 4 Va. App. 248, 250, 356 S.E.2d 443, 444 (1987). “‘In so doing, we must discard the eviden ce of the accused in conf lict with that of the Commonwealth, and regard as true all the credible evidence favorable to the Commonwealth and

∗ Pursuant to Code § 17.1-413, this opin ion is not designated for publication.all fair inferences that may be draw n theref rom . ’ ” W a tkins v

. Commonwealth , 26 Va. App. 335, 348, 494 S.E.2d 859, 866 (1998) (quoti n g C i r i o s v . C o m m onwealth , 7 Va. App. 292, 295, 373 S.E.2d 164, 165 (1988)). In response to a “disturbance call,” police o fficers Lipscom b a nd Fountain, dressed in uniform and driving a marked police vehicle, arri ved at an ap artm ent complex and noticed Hicks and another m a n standing in front . As soon as the police pulled up, Hicks quickly w a lked to one of the apartm ent units, knocked on the door and entere d. He entered so quickly that he shut the door on the other m a n, who was fol l owing behind. The police o fficers imm e diately follo wed Hicks and the other m a n to the apartm ent. When the police knocked on the apartm ent door, the lessee, John Sharp, allowed them t o enter. Sharp stated that Hick s was his nep h ew. Shar p inform ed the officers th at Hicks was in the bathroom , which was approxim a tely fifteen feet away. As Officer Lipscomb approached the bathroom , he heard the “toilet seat go down,” and Hicks walked out the door. The officer noticed that the to ile t did not f l ush. Hicks walked down the hall toward the livi ng room, where Officer Fountain was talking with Sharp. Officer Lipscom b i mme diately went into the bathr oom and noticed on the back of the toilet, in plain view, a bag of m a rijuana and $80 in cash. Ba sed on the sound he heard as he approached the bathroom, he lifted the toilet seat and discovered a pl astic bag containing twenty-s ix s m aller indiv i dual bag s o f crack coca ine f l oating in the to ile t. Officer Fountain p l aced Hicks in custody. W h en Hicks was searched pu rsuant to the arrest, a plastic baggie w ith an “apple logo,” m a rijuana flakes and $155 were found in his pocket. He also had a cellular phone in his possession. The police officers also f ound, on the dresser in

- 2 -the bedroom , a few rocks of crack co caine in a pill bottle with Sharp’s nam e on it. 1 Later, at the police statio n, Hicks told Officer Lipscom b that, “he could understand the weed charge but that the crack was not his.” The Comm onwealth offered the expert te stim ony of Sergeant Duane Stokes, who had extensive training and experience with investigati on of the drug trade in the Portsm outh area. Sergeant S t o k es tes tified that the am ount of crack cocaine fou nd in the toilet had a street value of $520 and was inconsistent with personal use. Officer Lipscomb also testified that plastic baggies with an “apple logo” contain sm aller baggies a nd can norm a lly be purchased at drug stores and convenience stores. He also testif ied that the baggies found in the toilet would com e in this sam e type of bag. Hicks’ counsel called Sharp to testify on Hicks’ behalf. Sh arp denied th at the cocaine found in the bedroom and the bath room belonged to him

. He stated that the only other person that had used his bathroom that day was a “d runk” who loitered around the apartm ent com p lex. Sharp agreed that the “drunk” di d not strike him as the type of person who would leave a large quantity of cocaine floating in his toilet. Sharp also stated that he had no idea that the police were at the com p lex and that he did not know of their presence until they knocked on his door. Hicks also testified. He claim e d he went to Sharp’s apartm ent becaus e h e needed to use the bathroom. He said that when he entered the bathroom , he saw the marijuana and the m oney on top of the toilet, and then when he lifted the to ilet seat he s a w the crack cocaine. O n ce he saw the cocaine, he closed th e seat and walked out of the bathroom. Hicks denied that the crack cocaine belonged to him and m a intained he had never seen it before.

- 3 - 1 Sharp was charged with possession of cocaine. He stated that he acknowledged that the crack found in the bed r o o m was in a pill bo ttle with his nam e on it, so he accepted the charge. He was subsequently f o u nd guilty of that of f e nse.The trial court found the evidence sufficient to convict Hicks of po ssession of cocaine with intent to distribute. In fi nding Hicks guilty, the court stated: The Court finds there’s no question but that the defendant was in possession of the cocaine with the in tent to distribute and also in possession of the m a rijuana found on th e top of the water closet in the bathroom. I think it’s prepos terous this m a n has to use the bathroom so m u ch he has to go into the m a n’s house, knock on the door, and use the bathroom , and then he says he saw what looked like dope to him in there and d ecided he didn’t want to get involved and leaves. I th ink that’s ludicrous. At the sentencing hearing, Hicks received five year s in the s t ate pen iten t iary with thre e years and nine m onths suspended. This appeal followed. II. Analysis When faced with a challenge to the su ffici ency of the evid ence, we “‘presu m e the judgm ent of the trial court to be correct’ and reverse only if the trial court’s decision is ‘plainly wrong or without evidence to suppor t i t

. ’ ” K e l l y v . C o m m onwealth , 41 Va. App. 250, 257, 584 S.E.2d 444, 447 (2003) ( en banc ) ( c itations om i t t e d ) ; s e e also M c G e e v . C o m m onwealth , 25 Va. App. 193, 197-98, 487 S.E.2d 259, 261 (1997) ( en banc ). A reviewing court does not “ask itse l f whether it believes that the evidence at the tr ial established guilt beyond a reasonable d o u b t

. ” J a c k s o n v . V i r g i n i a , 443 U.S. 307, 318-19 (1979) (emphasi s in original and citation

om itted). W e m u st inste a d ask whether “ any rational trier of fact c ould have found the essential elem ents of the crim e b e y o n d a r e a s o n a b l e d o u b t

. ” K e l l y , 41 Va. App. at 257, 584 S.E.2d at 447 ( q u o t i n g J a c k s o n , 443 U.S. at 319 (emphasis in o r igin al and internal quotation m a rks om itted)); see also H o a m b r e c k e r v . C i t y o f L y n c h b u r g , 13 Va. App. 511, 514, 412 S.E.2d 729, 731 (1992) (observing that question on appeal is whether “a rational trier of fact could have found the essential elem ents” of the convict ed offense). “‘This fam iliar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testim ony, to weigh the

- 4 -evidence, an d to draw reasonable inferences fr om basic facts to ultim a t e f a c t s . ’ ” K e l l y , 41 V a . A p p . a t 2 5 7

- 5 8 , 5 8 4 S

. E

. 2 d a t 4 4 7 ( q u o t i n g J a c k s o n , 443 U.S. at 319). To convict a defendant on the charge of posse ssion of drugs with in tent to distribute, the Commonwealth m u st prove that the defendant possessed illegal dr ugs and that he did so with the in tent to distr i bute th o s e d r u g s t o o t h e r s . S e e C o d e § 1 8

. 2

- 2 4 8 ( A ) ; C h r i s t i a n v . Commonwe a lth , 33 Va. App. 704, 716, 536 S.E.2d 477, 483 (2000) ( en banc ). 2 “In order to convict a defendant of ‘possession ’ of a narcotic drug, . . . it genera lly is necessary to show that defendant was aware of the presen ce and char acter of the particular substance and was inten tiona lly and conscio u sly in poss e ssion of it. ” R i t t e r v. Comm onwealth , 210 Va. 732, 741, 173 S.E.2d 799, 805 (1970). However, “[p]ossession [of drugs] m a y be actual or constructive. Constructive possession m a y be established by ‘evi dence of acts, statem e n ts, or conduct of the accused o r o t her facts or circum stances which ten d to show th at the d e fendant was aware of both the pres ence and the character of the substan ce an d that it was subjec t to his dom inion and

c o n t r o l

. ’ ” L ogan v. Commonwealth , 19 Va. App. 437, 444, 452 S.E.2d 364, 368-69 (1994) ( q u o t i n g C l o d f e l t e r v . C o m m o n w e a l t h , 2 1 8 V a . 6 1 9 , 6 2 2 , 2 3 8 S

. E

. 2 d 8 2 0 , 8 2 2 ( 1 9 7 7 ) ; P o w e r s v . Commonwe a lth , 227 Va. 474, 476, 316 S.E.2d 739, 740 (1984)). The possession need not be

e x c l u s i v e . E c k h a r t v . C o mm onwealth , 2 2 2 V a . 4 4 7 , 4 5 0 , 2 8 1 S

. E

. 2 d 8 5 3 , 8 5 5 ( 1 9 8 1 ) ; s e e a l s o Ritte r , 210 Va. at 741, 173 S.E.2d at 806. In determ ining whether a defendant is guilty of possession with the in ten t to distribu te, the trie r of fact is entitle d to weigh a ll th e circumstances in a g i v e n c a s e . A d k i n s v . Commonwe a lth , 217 Va. 437, 439-40, 229 S.E.2d 869, 871 (1976). Physical proxim ity to the contraband is not, alone, suffi cient to support a conviction ba sed on constructive possession, but

2 Hicks does not challeng e the sufficiency of th e evidence with regard to proof of intent to distribute.
- 5 -is a circum stance to be considered w ith oth e r ev i d e n c e . S e e P o w e r s , 227 Va. at 476, 316 S.E.2d at 740. The requisite kn owledge on the part of an accused “m ay be proved by ‘evid e nce of acts, declarations or conduct o f the accused from whic h the inferen ce m a y be fa irly d r awn that he knew of the existence of narcotics at the place wh ere th e y w e r e f o u n d

. ’ ” A n d r e w s v . Commonwe a lth , 216 Va. 179, 182, 217 S.E.2d 812, 814 (1975). Possession of other drugs or paraphernalia “are additional facts w h ich [perm it] the f act f i nder to inf e r” that the accused had knowledge of the presence of th e d r u g s . W y m e r v. Comm onwealth , 12 Va. App. 294, 301, 403 S.E.2d 702, 707 (1991). Viewed in the light m o s t favorable to the Commonwealth, Hicks’ condu ct at the tim e of his arrest provides am ple evidence. Upon seeing the police, Hicks engaged in furtive conduct. He was in such a hurry to get into Sharp’s apar tment that he closed the door on the person who was with him. Hicks was in the bathroom i m me diately bef o re the crack cocaine w a s found in the toilet, and the officer following hi m heard him close the lid to the to ile t. He was presen t and in the imm e diate vicinity of the drugs that were found in plain view. Even though he denied ownership, Hicks adm itted tha t he k n ew there w a s co ca ine in the to ile t. Other item s indica tive of distribution, including a clear plastic baggy, a cellular phone, $155, and flakes of m a rijuana, were found on his person. The trial cou r t was entitled to disb elieve Hick s’ explanation and conc lude that he lied to conceal h i s g u i l t

. S e e D u n b a r v . C o m m o n w e a l t h , 29 Va. App. 387, 394, 512 S.E.2d 823, 827 (1999). W e hold that the totality of the circum st ances disclos e d by the ev idence was s u fficient to support the finding beyond a reason able doubt that the defendant was in constructive possession of the crack cocaine and that he h a d the inten t to distr i bute it.

- 6 -III. Conclu s i on Sufficient evidence supports Hicks’ conviction for possession with in tent to distribute cocaine. The trial court, therefore, did not pl ainly err in convicting Hi cks for this offense. Accordingly , we af f i rm the tr ial cou r t. Affirm ed.

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