COURT OF APPEALS OF VIRGINIA 

Present: Judge Elder, Senior Judge Duff and 

 Retired Judge Plummer*

Argued at Alexandria, Virginia 

JIMMIE MCAURTHER WRIGHT 

 MEMORANDUM OPINION** BY 

v. Record No. 1780-96-4 JUDGE LARRY G. ELDER 

 NOVEMBER 25, 1997 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY 

Stanley P. Klein, Judge 

 Mark Petrovich (Martin, Arif & Petrovich, on 

brief), for appellant. 

 Leah A. Darron, Assistant Attorney General 

(Richard Cullen, Attorney General, on brief), 

for appellee. 

 Jimmie McAurther Wright (appellant) appeals his conviction 

of possession of cocaine with intent to distribute in violation 

of Code § 18.2-248. He contends that the evidence was 

insufficient to support his conviction.1 For the reasons that 

follow, we reverse and remand. 

 When considering the sufficiency of the evidence on appeal 

in a criminal case, this Court views the evidence in a light most 

 

 *Retired Judge William G. Plummer took part in the 

consideration of this case by designation pursuant to Code 

§ 17-116.01. 

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

designated for publication. 

 1At trial, the trial court ruled that appellant waived his 

motion to strike by presenting evidence during the Commonwealth's 

case-in-chief. We do not address the merits of this ruling 

because the Commonwealth concedes that appellant preserved for 

appeal his challenge of the sufficiency of the evidence. 
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favorable to the Commonwealth, granting to it all reasonable 

inferences fairly deducible therefrom. See Higginbotham v. 

Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975). On 

review, this Court does not substitute its own judgment for that 

of the trier of fact. See Cable v. Commonwealth, 243 Va. 236, 

239, 415 S.E.2d 218, 220 (1992). The trial court's judgment will 

not be set aside unless it appears that the judgment is plainly 

wrong or without supporting evidence. See Martin v. 

Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987). 

 "Circumstantial evidence is as competent and is entitled to 

as much weight as direct evidence, 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). "[W]here the Commonwealth's evidence as to an 

element of an offense is wholly circumstantial, 'all necessary 

circumstances proved must be consistent with guilt and 

inconsistent with innocence and exclude every reasonable 

hypothesis of innocence.'" Moran v. Commonwealth, 4 Va. App. 

310, 314, 357 S.E.2d 551, 553 (1987) (citation omitted). 

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 exclude are those 'which flow from the 
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evidence itself, and not from the imagination of defendant's 

counsel.'" Id. at 289-90, 373 S.E.2d at 338-39. 

 In a prosecution under Code § 18.2-248, the Commonwealth has 

the burden of proving two elements: (1) that the accused 

possessed a controlled substance (2) while having the specific 

intent to distribute such a substance. See Wilkins v. 

Commonwealth, 18 Va. App. 293, 298, 443 S.E.2d 440, 444 (1994); 

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

(1991); Code § 18.2-248. Appellant contends that the 

Commonwealth failed to prove either element. We consider each in 

turn. 

 A. 

 POSSESSION 

 We hold that the evidence was sufficient to prove that 

appellant knowingly and intentionally possessed cocaine in the 

motel room. "To convict a defendant of illegal possession of 

drugs, the Commonwealth must prove that the defendant was aware 

of the presence and character of the drugs, and that he 

intentionally and consciously possessed them." Josephs v. 

Commonwealth, 10 Va. App. 87, 99, 390 S.E.2d 491, 497 (1990) 

(citation omitted). "Physical possession giving the defendant 

'immediate and exclusive control' is sufficient." Gillis v. 

Commonwealth, 215 Va. 298, 301-02, 208 S.E.2d 768, 771 (1974). 

 The testimony of Captain Lomonaco proved that appellant 

possessed a plastic bag containing objects the size and shape of 
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little rocks in his right pants pocket at the time the captain 

patted down appellant's clothing. The evidence of appellant's 

conduct after Captain Lomonaco felt the plastic bag in his pocket 

and the circumstances surrounding the discovery of the plastic 

bag containing crack cocaine on the ground outside of the 

bathroom window was sufficient to support the jury's conclusion 

that the two bags were one and the same. Immediately after 

Captain Lomonaco felt the plastic bag in appellant's pants 

pocket, appellant pushed the captain away and barricaded himself 

inside the bathroom. When the officers arrested appellant forty 

or fifty seconds later, the bag in his pants pocket was no longer 

present. The window to the bathroom had been closed prior to 

appellant's evasive action and was open when the officers kicked 

in the door and overpowered appellant. Captain Lomonaco 

testified that the toilet did not flush while appellant was in 

the bathroom and that he observed appellant "leaning out the 

[bathroom] window with what appeared to be both hands." The 

plastic bag containing the crack was found on top of "fresh snow" 

about ten to fifteen feet from the outside of the bathroom 

window. Detective Feightner testified that there were no tracks 

other than his within ten or fifteen feet of the bag. 

Appellant's awareness of the cocaine in his pocket and his intent 

to possess it could be reasonably inferred from his evasive 

conduct after the captain felt the bag in his pocket. Any 

reasonable hypotheses that the appellant disposed of the plastic 
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bag in his possession in some manner other than tossing it out 

the window or that the bag found on the ground was placed there 

by someone else were excluded by two key facts: (1) only forty 

or fifty seconds passed in between the time that Captain Lomonaco 

felt the plastic bag in appellant's pocket and discovered that 

the plastic bag was no longer there and (2) the toilet did not 

flush while appellant was in the bathroom. 

 This case is distinguishable from Gordon v. Commonwealth, 

212 Va. 298, 183 S.E.2d 735 (1971), because the circumstances 

that rendered the gap in the police's observation of the 

defendant "fatal" in that case are not present here. In Gordon, 

the defendant was seen fleeing from the police carrying an 

envelope. See id. at 299, 183 S.E.2d at 736. When the defendant 

was arrested following a chase on foot, no envelope was in his 

possession. See id. A short while later, a detective found an 

envelope containing "narcotics works," on some grass adjacent to 

a "fairly busy" street that was near the route taken by the 

defendant. See id. at 299-300, 183 S.E.2d at 736. The Virginia 

Supreme Court held that the circumstantial evidence was 

insufficient to prove that the envelope containing the heroin had 

been in the defendant's possession. See id. at 300, 183 S.E.2d 

at 737. The Court reasoned that because the envelope found by 

the detective was located next to "the public street on which 

numerous persons were gathered" and because no officer had seen 

where along defendant's escape route he had discarded his
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envelope, the circumstantial evidence had failed to exclude the 

reasonable hypothesis that the envelope found by the detective 

had been dropped by some other pedestrian walking along the 

street. See id. at 300-01, 183 S.E.2d at 737. 

 Unlike Gordon, the officers in this case could pinpoint the 

area where appellant would have discarded the plastic bag to the 

patch of ground adjacent to the bathroom window. Moreover, 

Captain Lomonaco observed appellant reaching toward the opened 

window with his hands as he and Officer Miller attempted to kick 

in the bathroom door. In addition, the bag containing the crack 

was found on top of undisturbed snow and was ten to fifteen feet 

away from a path that the record established was frequented only 

by a dog owner and his or her dog. 

 B. 

INTENT TO DISTRIBUTE 

 Although we conclude that the evidence was sufficient to 

prove that appellant possessed cocaine, we hold that the evidence 

was insufficient to support the jury's conclusion that appellant 

had the specific intent to distribute the drug. The intent of an 

accused to distribute drugs may be shown by circumstantial 

evidence. Wells v. Commonwealth, 2 Va. App. 549, 551, 347 S.E.2d 

139, 140 (1986). Circumstances that shed light on the accused's 

specific intent regarding illegal drugs in his possession include 

(1) the quantity and method of packaging of the drugs possessed 

by him, (2) the presence or absence of an unusual amount of money 
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suggesting profit from sales, and (3) the presence or absence of 

drug paraphernalia. See Servis v. Commonwealth, 6 Va. App. 507, 

524-25, 371 S.E.2d 156, 165 (1988); see also Dukes v. 

Commonwealth, 227 Va. 119, 122, 313 S.E.2d 382, 383 (1984); 

Wells, 2 Va. App. at 551-52, 347 S.E.2d at 140. 

 Although the evidence in this case created a suspicion that 

appellant may have had the intent to distribute drugs, it was not 

inconsistent with the hypothesis that he merely possessed cocaine 

with the intent to consume it himself. The evidence established 

that appellant possessed about six grams of crack cocaine with a 

street value of between $600 and $900 and that he had $232 on his 

person at the time of his arrest. However, no evidence indicated 

whether these amounts of cocaine and cash were consistent with 

distribution or personal use. Although a blue gym bag containing 

drug paraphernalia and razor blades was discovered on a bed in 

the motel room where appellant was arrested, no evidence 

established that these items belonged to appellant rather than to 

one of the room's other two occupants. The motel room, itself, 

was registered to "Bobby Goode," and a man by this name answered 

the door when the police arrived to search the room. Based on 

these circumstances, the mere possession of the cocaine and cash 

by appellant is insufficient to exclude the reasonable hypothesis 

that appellant had purchased cocaine for personal use from one of 

the other occupants of the room prior to the officers' arrival. 

 For the foregoing reasons, we reverse appellant's conviction 
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of possession of cocaine with intent to distribute in violation 

of Code § 18.2-248 and remand the proceeding to the trial court 

for a new trial on the charge of possession of cocaine, if the 

Commonwealth so elects. 

Reversed and remanded.