                  COURT OF APPEALS OF VIRGINIA


Present: Judges Bray, Frank and Senior Judge Baker
Argued at Norfolk, Virginia


ROBERT GREG WILLIAMS, JR.
                                           MEMORANDUM OPINION * BY
v.   Record No. 1156-98-1                   JUDGE ROBERT P. FRANK
                                              SEPTEMBER 21, 1999
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
                     Charles E. Poston, Judge

          J. Carroll Melton, II, for appellant.

          Ruth M. McKeaney, Assistant Attorney General
          (Mark L. Earley, Attorney General of
          Virginia, on brief), for appellee.


     Following a bench trial on March 9, 1998, Robert Greg

Williams, Jr. (appellant) appeals his convictions of possession of

a firearm by a convicted felon, possession of a concealed weapon

by a convicted felon, possession of a firearm while in the

possession of heroin, possession of a firearm while in the

possession of cocaine, possession of an imitation controlled

substance with intent to distribute, and possession of cocaine

with intent to distribute within 1,000 feet of school property.

On appeal, appellant challenges the sufficiency of the evidence to

support the convictions.    We find that the trial judge did not err



     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
in denying appellant's motion to strike the evidence, and we

affirm the convictions.

                           I.   BACKGROUND

     On February 3, 1997, appellant was the right, front passenger

in a vehicle stopped for travelling in the wrong direction on a

one-way street by Officers Infantino, Thompson, and Lee and

Corporal Huffman of the Norfolk Police Department.   The vehicle

was stopped within 1,000 feet of an elementary school.   As Officer

Infantino and Corporal Huffman approached the vehicle, appellant's

eyes became wide.   He acted nervous and began fidgeting, looked

around, and then reached down with his right arm towards the floor

of the vehicle or under the seat.   The officers commanded

appellant to put his hands where they could see them.    When

Officer Infantino reached the passenger-side door, appellant

handed the officer a red straw containing a white powdery residue.

He told Officer Infantino that there was no residue on the straw.

     Appellant exited the car, and Officer Infantino and Corporal

Huffman performed a pat-down search.    In appellant's front pants

pocket, the officers found a bag containing two, white, rock-like

substances.   Appellant told the officers that they were his "lucky

rocks."   The substances were later confirmed to be crack cocaine.

     During a more thorough search of appellant by Officer

Thompson, appellant attempted to drop a tissue from his hands.     A

wax paper envelope containing heroin was wrapped inside the

tissue.

                                - 2 -
     During a search of the vehicle, the officers found a loaded

nine millimeter semi-automatic pistol under the passenger seat

closer to the right, passenger-side door.   They also found a

plastic baggie containing imitation cocaine sticking out of the

glove compartment, directly in front of appellant's seat.    The

corner of the baggie was in plain view, and white powder was

visible inside the bag.

     Corporal Huffman testified that the imitation cocaine was

inconsistent with personal use, and the combination of the heroin,

crack cocaine and imitation cocaine was "consistent with a user

that's selling to support his habit." 1

     Appellant was tried in a bench trial on March 9, 1998, and

was convicted of escape without force, possession of heroin,

possession of a firearm while in the possession of heroin,

possession of imitation cocaine with intent to distribute,

possession of cocaine, possession of a firearm while in the

possession of cocaine, possession of cocaine with intent to

distribute within 1,000 feet of school property, possession of a

firearm by a convicted felon, possession of a concealed weapon by

a convicted felon, and failure to appear.




     1
       While expert testimony on an ultimate issue of fact is
generally inadmissible, appellant does not challenge Corporal
Huffman's statement on appeal, and, therefore, the issue is not
before this Court. See Llamera v. Commonwealth, 243 Va. 262,
414 S.E.2d 597 (1992).


                               - 3 -
                            II.    ANALYSIS

       "We review the evidence in the light most favorable to the

Commonwealth and give it all reasonable inferences fairly

deducible therefrom.   The judgment appealed from will be affirmed

unless it appears from the evidence that it is plainly wrong or

without evidence to support it."     McGee v. Commonwealth, 4 Va.

App. 317, 322, 357 S.E.2d 738, 740 (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.'"    Id. (quoting

Coleman v. Commonwealth, 226 Va. 31, 53, 307 S.E.2d 864, 876

(1983)).

  A.    Possession of imitation cocaine with intent to distribute

       Appellant was convicted of possession of an imitation

controlled substance (imitation crack cocaine) with the intent to

distribute.   He challenges the conviction on the ground that the

evidence was insufficient to support the conviction.

       "Possession of a controlled substance may be actual or

constructive."    Id. (citing Archer v. Commonwealth, 225 Va. 416,

418, 303 S.E.2d 863, 863 (1983)).     Possession does not have to be

exclusive; possession of the drugs may be shared by more than one

person.    See Ritter v. Commonwealth, 210 Va. 732, 741, 173 S.E.2d

799, 806 (1970).   Appellant did not have actual possession of the

imitation controlled substance, so the evidence must show

constructive possession.

                                  - 4 -
          To support a conviction based upon
          constructive possession "the Commonwealth
          must point to 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."

Drew v. Commonwealth, 230 Va. 471, 473, 338 S.E.2d 844, 845

(1986) (quoting Powers v. Commonwealth, 227 Va. 474, 476, 316

S.E.2d 739, 740 (1984)).

          Ownership 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 exercised dominion and
          control over items in the vehicle or on the
          premises in order to prove that the owner or
          occupant constructively possessed the
          contraband.

Burchette v. Commonwealth, 15 Va. App. 432, 435, 425 S.E.2d 81,

83 (1992) (citations omitted).    Physical proximity to the

contraband is not, alone, sufficient to support a conviction

based on constructive possession, but is a circumstance to be

considered with other evidence.     See Powers, 227 Va. at 476, 316

S.E.2d at 740.   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).

     In Jones v. Commonwealth, 17 Va. App. 572, 439 S.E.2d 863

(1994) (en banc), this Court held that the mere proximity of a


                                 - 5 -
passenger in a car to small rocks of crack cocaine in the

vehicle's console was insufficient to establish possession.       We

held that the evidence did not establish the length of time the

passenger occupied the vehicle or that the passenger occupied the

vehicle when the police officer received the report that drugs

were being used in the vehicle.   See id. at 574, 439 S.E.2d at

864.   Further, there was no evidence that the passenger saw the

cocaine among the other items in the console or that he knew the

rocks were cocaine.   See id.   The police officer did not see the

passenger using cocaine nor did the driver or the passenger make

any statement indicating that the passenger had knowledge of the

drugs.   See id.

       This case is distinguishable from Jones.   Appellant was

seated in the right, front, passenger seat of the vehicle.    The

imitation controlled substance was located in the glove

compartment directly in front of appellant's seat and in his line

of sight.   The corner of the bag containing the substance was

sticking out of the glove compartment in plain view, and a white

powdery substance was visible in the bag.   As the officers

approached the vehicle, appellant acted nervous and fidgety, his

eye were wide, and he looked around.    He was in possession of

other drugs, and he clearly had knowledge relating to drug use as

he stated that there was no residue on the red straw as he handed

it to the police officer.   We find that this evidence was

sufficient to show that appellant was aware of the presence and

                                - 6 -
character of the imitation controlled substance and that it was

subject to his dominion and control.

     "Possession of a quantity greater than that ordinarily

possessed for one's personal use may be sufficient to establish an

intent to distribute it."    Hunter v. Commonwealth, 213 Va. 569,

570, 193 S.E.2d 779, 780 (1973).   The method in which the drugs

are packaged may indicate an intent to distribute it.    See Monroe

v. Commonwealth, 4 Va. App. 154, 355 S.E.2d 336 (1987).

     At trial, Corporal Huffman testified that the imitation crack

cocaine was inconsistent with personal use.    The imitation crack

cocaine was chopped into smaller blocks which Corporal Huffman

stated is consistent with a trend among drug dealers to sell drugs

hand-to-hand without packaging material.    We find that this

evidence was sufficient to establish intent to distribute.

     We, therefore, affirm the conviction of possession of an

imitation controlled substance with the intent to distribute.

        B.   Convictions involving possession of a firearm

     Appellant challenges the sufficiency of the evidence as to

the convictions involving possession of a firearm:      possession

of a firearm by a convicted felon, possession of a concealed

weapon by a convicted felon, possession of a firearm while in

the possession of heroin, and possession of a firearm while in

the possession of cocaine.    Appellant does not challenge his

status as a convicted felon, and does not argue that he did not

possess the cocaine and the heroin.     The evidence is clear that

                                - 7 -
appellant did not have actual possession of the gun.   Therefore,

the issues for review as to these convictions are whether the

evidence was sufficient to show that appellant constructively

possessed the gun and whether the gun was concealed.

     "'A conviction for knowingly and intentionally possessing a

firearm after having been convicted of a felony . . . requires

proof beyond a reasonable doubt of either actual or constructive

possession of the firearm.'"   Gregory v. Commonwealth, 28 Va.

App. 393, 397, 504 S.E.2d 886, 888 (1998) (quoting Hancock v.

Commonwealth, 21 Va. App. 466, 468, 465 S.E.2d 138, 140 (1995)).

     This Court has applied the same principles of law for

constructive possession of a controlled substance to

constructive possession of a firearm.   See id. at 397-98, 504

S.E.2d at 888.

     In this case, the evidence showed the gun was located under

the right, front, passenger seat of the car in which appellant

was the right, front passenger.   The gun was closer to the

front, passenger-side door than to the middle of the passenger

compartment.   As the police officers approached the vehicle,

appellant leaned forward towards the floor and reached with his

right arm under the seat or to the floor of the vehicle.

Appellant acted nervous, began fidgeting, and looked around.

The officers also found drugs on appellant's person and an

imitation controlled substance directly in front of where he was

sitting.   Corporal Huffman testified that the drugs and the

                               - 8 -
imitation controlled substance were consistent with a user who

sells drugs to support his habit. 2    From this evidence, the fact

finder could infer beyond a reasonable doubt that appellant was

aware of the presence and the character of the gun on the floor

of the vehicle and that it was subject to his dominion and

control.

     Code § 18.2-308.2(A) defines a concealed weapon as one

"hidden from common observation."     Code § 18.2-308.2(A).   In

Main v. Commonwealth, 19 Va. App. 272, 450 S.E.2d 772 (1994), we

held that "'common observation' connotes general or ordinary

observation," and it is the province of the trier of fact to

determine "what is common observation and what is not."       Main v.

Commonwealth, 19 Va. App. 272, 275, 450 S.E.2d 772, 773 (1994)

(citation omitted).

     In this case, the gun was under the front, passenger seat

of the vehicle.   The trier of fact determined that the gun was

hidden from common observation, and we will not disturb that

determination on appeal.

     We find that the evidence was sufficient to support the

trier of fact's finding that appellant constructively possessed

the weapon and that the weapon was hidden from common

observation.   Therefore, we affirm the convictions involving


     2
       This Court has recognized there is a relationship between
drug distribution and the presence of weapons. See Logan v.
Commonwealth, 19 Va. App. 437, 445, 452 S.E.2d 364, 369 (1994).


                               - 9 -
possession of the gun:    possession of a firearm by a convicted

felon, possession of a concealed weapon by a convicted felon,

possession of a firearm while in the possession of heroin, and

possession of a firearm while in the possession of cocaine.

C.     Possession of cocaine with intent to distribute within 1,000
                           feet of a school

       Appellant contends that the evidence was not sufficient to

support his conviction for possession of cocaine with intent to

distribute within 1,000 feet of a school.      Appellant does not

contest that he possessed cocaine.       The issues for determination

as to this conviction are whether appellant had intent to

distribute cocaine and whether appellant was within 1,000 feet

of school property.

       Appellant contends that he did not possess an amount of

cocaine sufficient to establish intent to distribute.      We

disagree with appellant and find that the evidence was

sufficient to show that he possessed the requisite intent to

distribute cocaine.

       In Colbert v. Commonwealth, 219 Va. 1, 4, 244 S.E.2d 748,

749 (1978), the Supreme Court of Virginia held that the quantity

of drugs possessed by a defendant is "not necessarily indicative

of a lack of intent to distribute."      The defendant in Colbert

was discovered in the passenger seat of a van parked on the

grounds of an elementary school.     See id. at 2, 244 S.E.2d at

748.    Officers approached the van because trespassing on school


                                - 10 -
grounds after dark was prohibited.       See id.   One of the officers

saw a bag of what appeared to be marijuana over the sun visor,

and the other officer saw the defendant remove a styrofoam

bucket from between his legs and put it behind the seat.        See

id.   The defendant was arrested, and a search of the van

revealed a bag of marijuana over the sun visor, five "nickel

bags" of marijuana in the styrofoam bucket and a large plastic

bag on the defendant's seat containing marijuana residue.          See

id. at 2-4, 244 S.E.2d at 748-49.     The defendant had over two

hundred dollars in small denominations on his person.        See id.

at 3, 244 S.E.2d at 749.    The Court held that the evidence was

sufficient to support the conviction for possession with intent

to distribute because "the jury might well have inferred that

the quantity seized was what remained from a larger supply held

for distribution."     Id. at 4, 244 S.E.2d at 749.    The Court

considered the packaging of the marijuana into "nickel bags" as

a factor that could lead the jury to infer that the marijuana

had been transferred from the large plastic bag into smaller

bags for distribution.     See id.   The Court also considered the

money in the defendant's pocket as a factor that the jury may

have used to reach the conclusion that the defendant sold the

marijuana.   See id.

      We believe that this case is similar to Colbert.       Appellant

possessed a small quantity of heroin, a small quantity of crack

cocaine, and an unknown quantity of imitation crack cocaine.

                                - 11 -
Corporal Huffman testified that the drugs and the imitation

crack cocaine possessed by appellant were inconsistent with

personal use, and, instead, were indicative of a user who sells

drugs to support his habit.   Appellant also possessed a firearm.

We believe that despite the small quantity of cocaine possessed

by appellant, other circumstances, i.e., the possession of

heroin, the possession of imitation crack cocaine and the

possession of a firearm, coupled with Corporal Huffman's

testimony, could permit the fact finder to reasonably infer that

appellant was distributing cocaine.

     Code § 18.2-255.2(A)(ii) states that it is unlawful to

possess a controlled substance with intent to distribute the

substance while "upon public property or any property open to

public use within 1,000 feet of . . . school property."    Code

§ 18.2-255.2(A)(ii).   The statute further states that

"[v]iolation of this section shall constitute a separate and

distinct felony."   Code § 18.2-255.2(B).   The statute also sets

forth a separate penalty that applies in addition to any

penalties proscribed for violations of other provisions of law

arising from the same act.    See Code § 18.2-255.2(B) and (C).

     The evidence is undisputed that the vehicle in which

appellant was a passenger was travelling in the wrong direction

on a one-way street and was stopped by the officers within 1,000

feet of an elementary school.    Appellant, however, argues that

since he was in a moving vehicle and the incident occurred after

                                - 12 -
eleven o'clock at night, he did not violate the intent of the

statute.

     Our decision on this issue is controlled by the Supreme

Court of Virginia's decision in Commonwealth v. Burns, 240 Va.

171, 395 S.E.2d 456 (1990).     In Burns, the defendant was

arrested at 8:45 p.m. on a Friday evening for distributing

cocaine on public property within 1,000 feet of a school.        See

Commonwealth v. Burns, 240 Va. 171, 174, 395 S.E.2d 456, 457

(1990).    School was not in session when the transaction

occurred, school-related activities were not taking place, and

juveniles did not view or take part in the sale.      See id. at

174-75, 395 S.E.2d at 457-58.     The trial court granted the

defendant's motion to dismiss on the ground that the statute was

unconstitutional as applied to Burns.      See id. at 175, 395

S.E.2d at 458.    The trial court reasoned that since the statute

did not provide a defense for transactions which occur when

school is not in session and children are not present, the

statute created "an irrebuttable presumption 'violative of due

process guarantees.'"    Id.    The Supreme Court held, however,

that the statute does not create presumptions.      See id. at 176,

395 S.E.2d 459.   Instead, the statute "creates a 'separate and

distinct felony,'" which "reflects the General Assembly's

concern about the aggravated nature of drug transactions

involving children."    Id.    The Court stated that the General

Assembly incorporated the aggravating factor, drug transactions

                                 - 13 -
occurring within 1,000 feet of a school, into the offense.      See

id.   Thus, the Court reasoned, the legislative finding that drug

transactions are harmful to children becomes a matter of

substance rather than a presumption.     See id.   In its holding

the Court stated

           In our opinion, also implicit in the General
           Assembly's enactment of Code § 18.2-255.2 is
           the legislative finding that the threat of
           harm to children is present whether or not
           school is in session, school-related
           activities are being held, or children are
           present when drug transactions take place
           within 1,000 feet of a school. By its
           finding, the General Assembly has settled
           once and for all that such drug transactions
           do cause harm to children, whether or not
           children are present when the transactions
           take place. . . . Nor can there be any
           question that this latter conclusion is
           rationally related to the Commonwealth's
           interest in protecting children from such
           threatened harm.

Id. at 177, 395 S.E.2d at 459 (emphasis in original).

      Therefore, based on the holding in Burns, we hold that

appellant's argument that he did not violate the intent of the

statute is without merit, and we find that the evidence was

sufficient to support a conviction under Code § 18.2-255.2.

      We, therefore, hold that the evidence was sufficient to

support appellant's conviction for possession of cocaine with

intent to distribute within 1,000 feet of school property.

                         III.   CONCLUSION

      For the foregoing reasons, we hold that the trial court did

not err in denying appellant's motion to strike the evidence and

                                - 14 -
that the evidence was sufficient to support appellant's

convictions for possession of a firearm by a convicted felon,

possession of a concealed weapon by a convicted felon,

possession of a firearm while in the possession of heroin,

possession of a firearm while in the possession of cocaine,

possession of an imitation controlled substance with intent to

distribute, and possession of cocaine with intent to distribute

within 1,000 feet of school property.   We, therefore, affirm the

convictions.

                                                          Affirmed.




                             - 15 -
