COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Moon, Judges Fitzpatrick and Annunziata 

Argued at Salem, Virginia 

BILLY FISHER 

 MEMORANDUM OPINION* BY 

v. Record No. 2454-96-3 JUDGE JOHANNA L. FITZPATRICK 

 JULY 15, 1997 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE 

Diane McQ. Strickland, Judge 

 John H. Kennett, Jr., for appellant. 

 John H. McLees, Jr., Assistant Attorney 

General (James S. Gilmore, III, Attorney 

General, on brief), for appellee. 

 On June 25, 1996, Billy Fisher (appellant) was convicted in 

a jury trial of possession of cocaine with intent to distribute. 

 On appeal, he contends that the trial court erred in: 

(1) admitting a handgun into evidence; (2) failing to instruct 

the jury during the guilt or innocence phase of the trial about 

the potential range of punishment for the offense charged; and 

(3) finding the evidence sufficient to convict. For the 

following reasons, we affirm the judgment of the trial court. 

 I. 

 During the early morning hours of July 30, 1995, Officer 

Edward Murphy (Murphy) of the Salem Police Department was working 

undercover for the Virginia Alcoholic Beverage Control Division. 

 He drove to the Black Angus Club in the City of Roanoke, pulled 

 

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

designated for publication. 
 2 

into the parking lot, and parked his car. He noticed that 

appellant, who was driving a truck, followed him into the parking 

lot and parked beside the building. There were no passengers in 

the truck. Murphy watched as appellant got out of the truck, 

placed two orange traffic cones to the right side of the truck, 

and ran an extension cord from the building to the truck. 

Appellant then walked around the parking lot. He approached 

Murphy, who was sitting in his car, and told him that he either 

had to depart or go into the club. Murphy testified that at this 

point, appellant's demeanor was "calm and casual and sociable." 

 Soon thereafter, Detective R.E. Chandler (Chandler) and 

other officers of the Vice Bureau of the Roanoke City Police 

Department arrived at the club and conducted a search of the 

truck. Chandler described the truck as "an old refrigerator 

truck . . . that appeared to be converted into a camper type or 

fishing vehicle, [which] had a lot of fishing equipment in it." 

During the search of the vehicle, appellant was "in and out" of 

the club, and Murphy observed a change in appellant's demeanor. 

He noticed that appellant became "real nervous like talkative, 

agi--agitated . . . he seemed to be more talkative. There was a 

lot of hyperactivity, just a lot of rambling, you know, 

nervousness." Appellant was not present during the entire search 

or when the contraband was found. 

 In the cab of the truck, the police found a "fanny pack" 

under the front driver's seat where appellant had been seated. 
 3 

They also discovered appellant's ID and a loaded "small 

derringer-type gun" in the fanny pack. Because the back of the 

truck could not be entered from the cab, the police forced the 

back door open. Inside they located a port-o-john, a shelf or 

counter with appliances on it, and a bench seat that had a bed or 

couch cushion on top of it. Under the cushion was a hole in the 

platform, and hidden inside the hole was a blue nylon bag. In 

one of the side pouches of the bag, they seized a black camera 

and a blue neckerchief that was wrapped around three small 

baggies containing cocaine. Nearby were digital scales and 

several plastic baggies. Among the personal items contained in 

the back of the truck were fishing equipment, tackle boxes, gas 

cans, clothing, sheets, and cooking appliances. The truck and 

the personal property were seized by the police. Later, when 

appellant arrived at the police station to retrieve his personal 

effects, he claimed the camera but did not claim the blue bag. 

 At trial, the police videotape of the truck's contents was 

shown to the jury. Additionally, the jury was shown a photograph 

of appellant's personal property, which included the camera. 

Other evidence at trial established that two of the baggies 

recovered from inside the blue bag contained a total of 10.48 

grams of powder cocaine. The third baggie contained a mixture of 

cocaine and inositol. Expert testimony established that inositol 

is a common cutting agent for street cocaine. 

 Additional expert testimony addressed the value and the 
 4 

significance of the amount of cocaine recovered from the truck. 

The testimony indicated that this quantity of cocaine was 

inconsistent with personal use,1

 that the other paraphernalia 

(including the scales, the cutting agent, and the baggies) found 

in the truck were tools of the drug distribution trade, and that 

"a gun is rarely found on a user. It is more ---- it's usually 

found on someone that's dealing and used to protect their 

profits." 

 Monica Patterson testified on behalf of appellant. She 

agreed that the blue bag belonged to her and that she had used it 

to carry her swimming gear. However, she stated that she had not 

seen the bag since her relationship with appellant ended 

approximately two years earlier. Theodore Alford, Jr. also 

testified for appellant. He stated that he frequently went 

fishing with appellant and that they used the scales in the back 

of the truck to weigh the fish that they caught. 

 During the trial, the court sua sponte issued a cautionary 

instruction to the jury regarding the significance of the 

handgun. The court stated as follows: 

 I would like to give you a cautionary 

instruction. One (1) of the exhibits that 

was admitted into evidence is a handgun. And 

in connection with that exhibit, I would like 

to instruct you as follows, the fact that a 

person owns a handgun found in his vehicle is 

not evidence that the drugs found in his 

 

 1Detective C.L. McCoy testified that the typical quantity of 

cocaine for personal use was "about [.25] grams which is a small 

amount of powder" and that 10.5 grams of cocaine would provide 

approximately "forty, forty-two single dose units." 
 5 

vehicle also belonged to him. 
 6 

II. 

 Appellant first contends that the only purpose for 

introducing the gun found in the truck into evidence was to 

prejudice the jury. Additionally, he argues that the 

Commonwealth's hypothesis that drug dealers use guns, and that 

the gun tended to prove that appellant possessed the cocaine with 

intent to distribute, was rejected by this Court in Burchette v. 

Commonwealth, 15 Va. App. 432, 425 S.E.2d 81 (1992). 

 "Evidence is relevant if it has any logical tendency, 

however slight, to establish a fact at issue in the case." 

Ragland v. Commonwealth, 16 Va. App. 913, 918, 434 S.E.2d 675, 

678 (1993). 

 Upon finding that certain evidence is 

relevant, the trial court is then required to 

employ a balancing test to determine whether 

the prejudicial effect of the evidence sought 

to be admitted is greater than its probative 

value. This responsibility is a matter 

submitted to the sound discretion of the 

trial court, and will not be disturbed on 

appeal absent a clear abuse of discretion. 

Wise v. Commonwealth, 6 Va. App. 178, 188, 367 S.E.2d 197, 203 

(1988). "The relationship between the distribution of controlled 

substances . . . and the possession and use of dangerous weapons 

is now well recognized." Logan v. Commonwealth, 19 Va. App. 437, 

445, 452 S.E.2d 364, 369 (1994) (en banc). 

 In the instant case, the Commonwealth bore the burden of 

proving that appellant had the intent to distribute the cocaine 

found in his truck. Accordingly, the fact that he carried a 
 7 

handgun in the truck had legitimate probative value regarding the 

element of his intent. The trial court did not abuse its 

discretion in admitting this evidence as relevant to an element 

of the crime charged. 

 Additionally, appellant's reliance on Burchette is 

misplaced. Burchette rejects the use of such evidence to prove 

that the armed person was in knowing possession of the drugs. 

Burchette, 15 Va. App. at 437, 425 S.E.2d at 83-84. The evidence 

was not introduced for such a purpose in the instant case. 

Rather, the gun was introduced as evidence of appellant's intent 

to distribute the drugs. The trial court expressly instructed 

the jury that they could not consider appellant's possession of 

the handgun as knowing possession of cocaine. "'Once a jury is 

instructed regarding the use or limitations placed on specific 

evidence, they are presumed to follow such instructions.'" 

Lawson v. Commonwealth, 13 Va. App. 109, 112, 409 S.E.2d 466, 467 

(1991) (quoting Lewis v. Commonwealth, 8 Va. App. 574, 580, 383 

S.E.2d 736, 740 (1989) (en banc)). Nothing in the record 

indicates that the jury failed to adhere to the instruction 

regarding its consideration of the gun. Thus, appellant's 

argument is without merit. 

 III. 

 Appellant next argues that the trial court erred in failing 

to inform the jury at the guilt stage of the trial of the 

possible range of punishment for the offense. Appellant failed 
 8 

to raise this argument at trial, and he is procedurally barred 

from raising it on appeal. The Court of Appeals will not 

consider an argument on appeal that was not presented to the 

trial court. Jacques v. Commonwealth, 12 Va. App. 591, 593, 405 

S.E.2d 630, 631 (1991) (citing Rule 5A:18). 

 IV. 

 Lastly, appellant contends that the evidence presented was 

insufficient to convict him of possession of cocaine with intent 

to distribute. Specifically, he argues that the Commonwealth 

failed to prove that, as the owner or occupant of the vehicle in 

question, he exercised such dominion and control that he would 

necessarily have known of the presence, nature, and character of 

the drugs recovered from his vehicle. 

 "A conviction will be affirmed unless it appears from the 

evidence that it is plainly wrong." Jetter v. Commonwealth, 17 

Va. App. 745, 746, 440 S.E.2d 633, 633 (1994). "On appeal, we 

review the evidence in the light most favorable to the 

Commonwealth, granting to it all reasonable inferences fairly 

deducible therefrom," Martin v. Commonwealth, 4 Va. App. 438, 

443, 358 S.E.2d 415, 418 (1987), and "the burden is on appellant 

to show that the evidence failed to support the trial court's 

decision." Jetter, 17 Va. App. at 747, 440 S.E.2d at 634. 

 To establish the offense of possession of cocaine with 

intent to distribute, the Commonwealth must prove that appellant 

"'intentionally and consciously possessed' the drug, either 
 9 

actually or constructively, with knowledge of its nature and 

character, together with the intent to distribute it." Wilkins 

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

(en banc) (citing Josephs v. Commonwealth, 10 Va. App. 87, 

99-102, 390 S.E.2d 491, 497-99 (1990) (en banc); Code 

§ 18.2-248)). Ownership and occupancy of a vehicle alone are 

insufficient to prove knowing possession of drugs found in the 

vehicle; however, 

 [o]wnership or occupancy of a vehicle or of 

premises where illicit drugs are found is a 

circumstance that may be considered together 

with other evidence tending to prove that the 

owner or occupant constructively possessed 

the contraband . . . . 

Burchette, 15 Va. App. at 435, 425 S.E.2d at 83. 

 Viewing the evidence in the light most favorable to the 

Commonwealth as the prevailing party, it is clear that appellant 

was the sole owner and occupant of the vehicle. Appellant 

testified that he used the vehicle as a fishing truck, but he 

obviously also used it for other purposes. He was not fishing at 

the time of the truck's seizure. The fact that he might at one 

time have used the scales in the truck to weigh fish does not 

preclude their use as a weighing device for the cocaine 

discovered nearby. The evidence further established that the 

back of the truck, where the drugs were recovered, was replete 

with items of appellant's personal property. The cocaine was 

recovered from the same pocket in appellant's bag in which his 

camera was found. The digital scales, the plastic baggies, the 
 10 

quantity and value of the cocaine, and the loaded handgun support 

the inference that appellant possessed this cocaine with intent 

to distribute. Appellant's ownership and control of the vehicle 

and the proximity of the drugs and paraphernalia to appellant's 

personal property, in addition to the other facts, demonstrate 

that appellant constructively possessed the cocaine with the 

intent to distribute. 

 Appellant argues that the holding in Burchette requires 

reversal of the case at bar. We disagree. In Burchette, we held 

that where the Commonwealth "presented no evidence from which one 

reasonably could infer that [appellant] occupied the vehicle or 

had exercised dominion over it while the [contraband] was present 

in it" and where the Commonwealth "failed to show either when 

[appellant] may have used or occupied the vehicle or when or for 

how long the drugs or paraphernalia had been in it," then the 

evidence did not tend to prove constructive possession. 

Burchette, 15 Va. App. at 435-36, 425 S.E.2d at 84. We held that 

under such circumstances, the "probability of guilt is 

insufficient to warrant a criminal conviction." Id. at 438, 425 

S.E.2d at 86. 

 Unlike Burchette, the facts of the instant case demonstrate 

that the Commonwealth proved not only that appellant owned the 

truck where the drugs were found, but also that appellant himself 

had driven the truck to the Black Angus Club parking lot, and 

that he had exercised dominion and control over the truck during 
 11 

the time it stayed in the lot. No evidence was presented to 

indicate that anyone other than appellant had control of the 

truck. Sole occupancy and dominion and control over the vehicle 

at the time in which the drugs are found therein is additional 

evidence of knowing possession. See, e.g., Jetter, 17 Va. App. 

745, 440 S.E.2d 633. Thus, viewing the evidence in its entirety, 

all necessary circumstances proved were consistent with guilt and 

inconsistent with innocence, and every reasonable hypothesis of 

innocence was excluded. See Garland v. Commonwealth, 225 Va. 

182, 184, 300 S.E.2d 783, 784 (1983). 

 For the foregoing reasons, we affirm the judgment of the 

trial court. 

 Affirmed.