                    COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Fitzpatrick, Judges Elder and Clements
Argued at Richmond, Virginia


OMAR JOHN
                                            MEMORANDUM OPINION * BY
v.   Record No. 2487-00-2          CHIEF JUDGE JOHANNA L. FITZPATRICK
                                                 OCTOBER 2, 2001
COMMONWEALTH OF VIRGINIA


            FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                        Thomas N. Nance, Judge

            Craig S. Cooley for appellant.

            Amy L. Marshall, Assistant Attorney General
            (Mark L. Earley, Attorney General, on brief),
            for appellee.


     Omar John (appellant) was convicted in a bench trial of

possession with intent to distribute more than five pounds of

marijuana, in violation of Code § 18.2-248.1(3).     He contends

the evidence was insufficient to prove (1) he possessed the

marijuana or (2) he intended to distribute it.     For the

following reasons, we affirm appellant's conviction.

                            I.   BACKGROUND

     Under familiar principles of appellate review, we examine

the evidence in the light most favorable to the Commonwealth,

the prevailing party below, granting to that evidence all

reasonable inferences fairly deducible therefrom.     See Juares v.


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
Commonwealth, 26 Va. App. 154, 156, 493 S.E.2d 677, 678 (1997).

The trial court's judgment will not be set aside unless plainly

wrong or without evidence to support it.     Hunley v.

Commonwealth, 30 Va. App. 556, 559, 518 S.E.2d 347, 349 (1999).

       The evidence established that Trooper Jeff Kandler was

working undercover at the bus station in Richmond "screening

[arriving] passengers."   Kandler observed appellant get off a

bus from Washington D.C. with a heavy green bag.    They made eye

contact, and appellant quickly walked away and entered the

bathroom.   Kandler waited outside the bathroom and saw appellant

exit the bathroom with the green bag.    Appellant again made eye

contact with Kandler and abruptly went into the cafeteria where

he bought a drink and french fries.     Kandler then lost sight of

him.   Two other officers, Detective Tunstall and Investigator

Simpson, joined Kandler and the three waited for appellant to

leave the cafeteria.   Appellant walked out of the cafeteria

without the bag.   Kandler stated "approximately sixty seconds

elapsed" between the time he lost sight of appellant and

appellant's exit from the cafeteria.

       Tunstall and Simpson followed appellant, and Kandler

entered the cafeteria to search for the green bag.       Kandler

"noticed the soft drink, the french fries on the table and the

green bag underneath the table."   An unidentified female sat at

a table to the right of the bag.   Kandler did not touch or move



                                - 2 -
the bag.   He left the bag in the cafeteria and returned to the

main station area.

       Kandler approached appellant and identified himself as a

police officer.   Appellant accompanied the three officers to a

nearby office.    Kandler asked appellant if he had arrived on a

bus; if so, where the bus originated; and if appellant had a

bag.   Appellant stated he got off a bus from Washington D.C. but

denied carrying a bag.    Kandler sent Tunstall and Simpson to the

cafeteria to recover the green bag.      Simpson retrieved the green

bag from the floor in the far right corner of the cafeteria next

to a table that held a soft drink and fries.     An unidentified

Hispanic male sat at the table but denied ownership of the bag.

Neatly folded clothing, a water bottle with "Omar" written on it

and a seven pound brick of marijuana with a value of $8,400

wholesale were inside the bag.    Four to five minutes elapsed

between the time the detectives entered the office with

appellant and the detectives recovered the green bag.

                  II.   SUFFICIENCY OF THE EVIDENCE

                 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
            character of the substance and that it was
            subject to his dominion and control.

Langston v. Commonwealth, 28 Va. App. 276, 285, 504 S.E.2d 380,

384 (1998).


                                 - 3 -
           "[I]f the proof relied upon by the
           Commonwealth is wholly circumstantial . . .
           to establish guilt beyond a reasonable doubt
           all necessary circumstances proved must be
           consistent with guilt and inconsistent with
           innocence. . . . To accomplish that, the
           chain of necessary circumstances must be
           unbroken and the evidence as a whole must
           satisfy the guarded judgment that both the
           corpus delicti and the criminal agency of
           the accused have been proved to the
           exclusion of any other rational hypothesis
           and to a moral certainty. . . ."

Clodfelter v. Commonwealth, 218 Va. 619, 623, 238 S.E.2d 820,

822 (1977) (quoting LaPrade v. Commmonwealth, 191 Va. 410, 418,

61 S.E.2d 313, 316 (1950)).   The evidence must be taken as a

whole and in sequence to determine whether appellant

constructively possessed the marijuana in the green bag.

      Appellant contends the evidence was insufficient to convict

him of possessing the marijuana because the Commonwealth failed

to:   (1) establish he knew the green bag contained marijuana and

(2) there was a break in the chain of evidence when the green

bag was out of the police officers' sight.   We disagree.

      Kandler testified appellant got off the bus with the green

bag and carried it to the cafeteria.   Appellant denied the bag

was his.   The items recovered from the bag included a water

bottle with "Omar" written on it and his personal belongings.

The evidence clearly establishes the bag as his.   See Shurbaji

v. Commonwealth, 18 Va. App. 415, 424, 444 S.E.2d 553, 554

(1994); Albert v. Commonwealth, 2 Va. App. 734, 742, 347 S.E.2d

536, 538-39 (1986).   Additionally, his denial of ownership

                               - 4 -
allowed the trial court to "infer guilty knowledge on the part

of [appellant] upon finding his testimony untruthful . . . and

upon consideration of his conduct prior to and during [the

incident]."   Speight v. Commonwealth, 4 Va. App. 83, 89, 354

S.E.2d 95, 99 (1987).

     Next, appellant argues that because the bag was left

unguarded in a public place while the officers were questioning

him, some other person may have tampered with it and placed the

seven pound brick of marijuana inside.

     "Where circumstantial evidence is sufficient to exclude

every reasonable hypothesis of innocence, it is sufficient to

support a conviction.   The hypotheses which must be thus

excluded are those which flow from the evidence itself, and not

from the imaginations of defense counsel."   Cook v.

Commonwealth, 226 Va. 427, 433, 309 S.E.2d 325, 329 (1983)

(citing Turner v. Commonwealth, 218 Va. 141, 148-49, 235 S.E.2d

357, 361 (1977)).

     No evidence indicated that anyone else touched the bag

during the brief period it was out of the officers' view.    The

marijuana was placed under neatly folded clothing with no

evidence of disturbance, and the bag was in the same location as

when appellant set it down.   The fact that other people were in

the immediate area, without more, does not require a contrary

finding.



                               - 5 -
      Thus, we hold that the evidence was sufficient to prove

appellant possessed both the bag and the drugs located within

it.

                      II.    INTENT TO DISTRIBUTE

      Appellant next contends that even assuming the drugs

belonged to him, the evidence did not establish that he intended

to distribute them.

                Where an offense consists of an act
           combined with a particular intent, proof of
           the intent is essential to the conviction.
           Because direct proof of intent is often
           impossible, it must be shown by
           circumstantial evidence. But "[w]here . . .
           the Commonwealth's evidence of intent to
           distribute is wholly circumstantial, 'all
           necessary circumstances proved must be
           consistent with guilt and inconsistent with
           innocence and exclude every reasonable
           hypothesis of innocence.'"

Servis v. Commonwealth, 6 Va. App. 507, 524, 371 S.E.2d 156, 165

(1998) (internal citations omitted).

      Appellant possessed over seven pounds of marijuana with a

wholesale value of $8,400.     The trial court found that the

marijuana "[w]as compressed for the purpose of transporting.     It

does not appear that any of it . . . you don't have a hunk out

of it.   I have no indication that he had been using it.     It's a

tremendous amount.    I haven't seen that much marijuana in this

Court in a long time."      Officer Moore's testimony that

ordinarily such a large amount is inconsistent with personal use

allows the trial court to infer these drugs were for


                                  - 6 -
distribution.    See Glenn v. Commonwealth, 10 Va. App. 150, 155,

390 S.E.2d 505, 508 (1990) (holding jury could reasonably

conclude that possession of over four pounds of marijuana was

inconsistent with personal use and consistent with

distribution); Gregory v. Commonwealth, 22 Va. App. 100, 110,

468 S.E.2d 117, 122-23 (1996) (holding evidence sufficient in

view of quantity of cocaine, even though expert admitted it was

conceivable a user with a "serious drug addiction" could consume

that amount of cocaine).

     Lastly, nothing in the record indicates that appellant had

the brick of marijuana for his personal use.   No drug

paraphernalia or other indicia of personal use was in his bag or

on his person.    See Clark v. Commonwealth, 32 Va. App. 286,

304-05, 527 S.E.2d 484, 493 (2000) (noting a factor from which

one can infer intent to distribute was that no paraphernalia for

smoking was found); Glasco v. Commonwealth, 26 Va. App. 763, 497

S.E.2d 150 (1998), aff'd, 257 Va. 433, 513 S.E.2d 137 (1999).

     Therefore, we hold the evidence sufficient to support a

finding that appellant intended to distribute the drugs found in

the green bag.

     For the foregoing reasons, we affirm.

                                                         Affirmed.




                                - 7 -
