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, Levin & 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 City of Portsmouth for 

possession of a controlled substance with intent to distribute, in violation 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 conviction. For the reasons that follow, we affirm the trial court. 

I. Background 

When the sufficiency of the evidence is challenged on appeal, “we review the evidence in 

the light most favorable to the Commonwealth, granting 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 evidence of the accused in conflict 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 opinion is not designated for publication. 
all fair inferences that may be drawn therefrom.’” Watkins v. Commonwealth, 26 Va. App. 335, 

348, 494 S.E.2d 859, 866 (1998) (quoting Cirios v. Commonwealth, 7 Va. App. 292, 295, 373 

S.E.2d 164, 165 (1988)). 

In response to a “disturbance call,” police officers Lipscomb and Fountain, dressed in 

uniform and driving a marked police vehicle, arrived at an apartment complex and noticed Hicks 

and another man standing in front. As soon as the police pulled up, Hicks quickly walked to one 

of the apartment units, knocked on the door and entered. He entered so quickly that he shut the 

door on the other man, who was following behind. 

The police officers immediately followed Hicks and the other man to the apartment. 

When the police knocked on the apartment door, the lessee, John Sharp, allowed them to enter. 

Sharp stated that Hicks was his nephew. Sharp informed the officers that Hicks was in the 

bathroom, which was approximately 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 toilet did not flush. 

Hicks walked down the hall toward the living room, where Officer Fountain was talking 

with Sharp. Officer Lipscomb immediately went into the bathroom and noticed on the back of 

the toilet, in plain view, a bag of marijuana and $80 in cash. Based on the sound he heard as he 

approached the bathroom, he lifted the toilet seat and discovered a plastic bag containing 

twenty-six smaller individual bags of crack cocaine floating in the toilet. 

Officer Fountain placed Hicks in custody. When Hicks was searched pursuant to the 

arrest, a plastic baggie with an “apple logo,” marijuana flakes and $155 were found in his pocket. 

He also had a cellular phone in his possession. The police officers also found, on the dresser in 

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the bedroom, a few rocks of crack cocaine in a pill bottle with Sharp’s name on it.1

 Later, at the 

police station, Hicks told Officer Lipscomb that, “he could understand the weed charge but that 

the crack was not his.” 

The Commonwealth offered the expert testimony of Sergeant Duane Stokes, who had 

extensive training and experience with investigation of the drug trade in the Portsmouth area. 

Sergeant Stokes testified that the amount of crack cocaine found 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 smaller baggies and can normally be purchased at drug stores and 

convenience stores. He also testified that the baggies found in the toilet would come in this same

type of bag. 

Hicks’ counsel called Sharp to testify on Hicks’ behalf. Sharp denied that the cocaine 

found in the bedroom and the bathroom belonged to him. He stated that the only other person 

that had used his bathroom that day was a “drunk” who loitered around the apartment complex. 

Sharp agreed that the “drunk” did 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 complex and that he did not know of their presence until they knocked on his door. 

Hicks also testified. He claimed he went to Sharp’s apartment because he needed to use 

the bathroom. He said that when he entered the bathroom, he saw the marijuana and the money 

on top of the toilet, and then when he lifted the toilet seat he saw the crack cocaine. Once he saw 

the cocaine, he closed the seat and walked out of the bathroom. Hicks denied that the crack 

cocaine belonged to him and maintained he had never seen it before. 

 

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1

 Sharp was charged with possession of cocaine. He stated that he acknowledged that the 

crack found in the bedroom was in a pill bottle with his name on it, so he accepted the charge. 

He was subsequently found guilty of that offense.
The trial court found the evidence sufficient to convict Hicks of possession of cocaine 

with intent to distribute. In finding Hicks guilty, the court stated: 

The Court finds there’s no question but that the defendant was in 

possession of the cocaine with the intent to distribute and also in 

possession of the marijuana found on the top of the water closet in 

the bathroom. I think it’s preposterous this man has to use the 

bathroom so much he has to go into the man’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 decided he didn’t want to get 

involved and leaves. I think that’s ludicrous. 

At the sentencing hearing, Hicks received five years in the state penitentiary with three years and 

nine months suspended. This appeal followed. 

II. Analysis 

When faced with a challenge to the sufficiency of the evidence, we “‘presume the 

judgment of the trial court to be correct’ and reverse only if the trial court’s decision is ‘plainly 

wrong or without evidence to support it.’” Kelly v. Commonwealth, 41 Va. App. 250, 257, 584 

S.E.2d 444, 447 (2003) (en banc) (citations omitted); see also McGee v. Commonwealth, 25 

Va. App. 193, 197-98, 487 S.E.2d 259, 261 (1997) (en banc). A reviewing court does not “ask 

itself whether it believes that the evidence at the trial established guilt beyond a reasonable 

doubt.” Jackson v. Virginia, 443 U.S. 307, 318-19 (1979) (emphasis in original and citation 

omitted). We must instead ask whether “any rational trier of fact could have found the essential 

elements of the crime beyond a reasonable doubt.” Kelly, 41 Va. App. at 257, 584 S.E.2d at 447 

(quoting Jackson, 443 U.S. at 319 (emphasis in original and internal quotation marks omitted)); 

see also Hoambrecker v. City of Lynchburg, 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 elements” of the convicted offense). “‘This familiar standard gives full play to the 

responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the 

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evidence, and to draw reasonable inferences from basic facts to ultimate facts.’” Kelly, 41 

Va. App. at 257-58, 584 S.E.2d at 447 (quoting Jackson, 443 U.S. at 319). 

To convict a defendant on the charge of possession of drugs with intent to distribute, 

the Commonwealth must prove that the defendant possessed illegal drugs and that he did so with 

the intent to distribute those drugs to others. See Code § 18.2-248(A); Christian v.

Commonwealth, 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 generally is necessary to show that 

defendant was aware of the presence and character of the particular substance and was 

intentionally and consciously in possession of it.” Ritter v. Commonwealth, 210 Va. 732, 741, 

173 S.E.2d 799, 805 (1970). However, “[p]ossession [of drugs] may be actual or constructive. 

Constructive possession may be established by ‘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 the character of the substance and that it was subject to his dominion and 

control.’” Logan v. Commonwealth, 19 Va. App. 437, 444, 452 S.E.2d 364, 368-69 (1994) 

(quoting Clodfelter v. Commonwealth, 218 Va. 619, 622, 238 S.E.2d 820, 822 (1977); Powers v.

Commonwealth, 227 Va. 474, 476, 316 S.E.2d 739, 740 (1984)). The possession need not be 

exclusive. Eckhart v. Commonwealth, 222 Va. 447, 450, 281 S.E.2d 853, 855 (1981); see also

Ritter, 210 Va. at 741, 173 S.E.2d at 806. 

In determining whether a defendant is guilty of possession with the intent to distribute,

the trier of fact is entitled to weigh all the circumstances in a given case. Adkins v.

Commonwealth, 217 Va. 437, 439-40, 229 S.E.2d 869, 871 (1976). Physical proximity to the 

contraband is not, alone, sufficient to support a conviction based on constructive possession, but 

 2

 Hicks does not challenge the sufficiency of the evidence with regard to proof of intent 

to distribute. 

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is a circumstance to be considered with other evidence. See Powers, 227 Va. at 476, 316 S.E.2d 

at 740. The requisite knowledge on the part of an accused “may be proved by ‘evidence of acts, 

declarations or conduct of the accused from which the inference may be fairly drawn that he 

knew of the existence of narcotics at the place where they were found.’” Andrews v.

Commonwealth, 216 Va. 179, 182, 217 S.E.2d 812, 814 (1975). Possession of other drugs or 

paraphernalia “are additional facts which [permit] the fact finder to infer” that the accused had 

knowledge of the presence of the drugs. Wymer v. Commonwealth, 12 Va. App. 294, 301, 403 

S.E.2d 702, 707 (1991). 

Viewed in the light most favorable to the Commonwealth, Hicks’ conduct at the time of 

his arrest provides ample evidence. Upon seeing the police, Hicks engaged in furtive conduct. 

He was in such a hurry to get into Sharp’s apartment that he closed the door on the person who 

was with him. Hicks was in the bathroom immediately before the crack cocaine was found in the 

toilet, and the officer following him heard him close the lid to the toilet. He was present and in 

the immediate vicinity of the drugs that were found in plain view. Even though he denied 

ownership, Hicks admitted that he knew there was cocaine in the toilet. Other items indicative of

distribution, including a clear plastic baggy, a cellular phone, $155, and flakes of marijuana, 

were found on his person. 

The trial court was entitled to disbelieve Hicks’ explanation and conclude that he lied to 

conceal his guilt. See Dunbar v. Commonwealth, 29 Va. App. 387, 394, 512 S.E.2d 823, 827 

(1999). We hold that the totality of the circumstances disclosed by the evidence was sufficient to 

support the finding beyond a reasonable doubt that the defendant was in constructive possession 

of the crack cocaine and that he had the intent to distribute it.

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III. Conclusion 

Sufficient evidence supports Hicks’ conviction for possession with intent to distribute 

cocaine. The trial court, therefore, did not plainly err in convicting Hicks for this offense. 

Accordingly, we affirm the trial court. 

Affirmed. 

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