                      COURT OF APPEALS OF VIRGINIA


Present: Judges Bray, Frank and Clements
Argued at Chesapeake, Virginia


ANTOINE MAURICE RICHARDSON
                                           MEMORANDUM OPINION * BY
v.   Record No. 2610-00-1                   JUDGE ROBERT P. FRANK
                                              NOVEMBER 13, 2001
COMMONWEALTH OF VIRGINIA


         FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
                      Randolph T. West, Judge

           Theophlise L. Twitty (Jones and Twitty, on
           brief), for appellant.

           Eugene Murphy, Assistant Attorney General
           (Randolph A. Beales, Attorney General, on
           brief), for appellee.


     Antoine Maurice Richardson (appellant) was convicted in a

bench trial of possession with the intent to distribute cocaine,

in violation of Code § 18.2-248.   On appeal, he contends the trial

court erred in finding the evidence was sufficient to convict.

Finding no error, we affirm the judgment of the trial court.

                             BACKGROUND

     On March 15, 2000, Newport News Police Detective D.L.

Williams was looking for a suspect who was wanted on an

outstanding felony warrant when he saw appellant coming out of a

house.   Williams could see appellant's back but not his face.   The


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
detective observed him get into a yellow cab parked in front of

the house.    Appellant was the only backseat passenger.     From the

rear, appellant fit the description of the suspect sought by

Williams.

     After the detective obtained backup, the police decided to

stop the cab.    Appellant had been riding in the middle of the

backseat "with his arm thrown around the rear of the left seat"

prior to the police activating their lights, but

             [w]hen he realized the cab was being stopped,
             [the detective] observed [appellant] put his
             arms down, lean forward, move to the left and
             he bent down to the left where his shoulder
             was bent below the rear window. Prior to
             that, [the detective] could see both of his
             shoulders. He then moved over to the right
             side of the cab.

He "scooted over" one to two feet to the right.

     Detective R.L. McArthur assisted in stopping the cab.          After

appellant got out of the vehicle, McArthur saw "in plain view on

the left-hand side, right as the seat back falls, if you follow

the line of the seat back, there was a plastic bag, a clear

plastic bag which contained what [he] believed to be crack

cocaine, suspected crack cocaine on the floorboard [of the cab] in

plain view."    Nothing obstructed his view of the item.     "The

cocaine was in the hump in the floorboard. . . . It wasn't

actually under the seat, but it was in line if you would follow

the back of the seat down."




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     Inside the 5- by 4-inch plastic bag were smaller bags, each

containing a number of separate glassine envelopes.    Several large

chunks of rock cocaine were in the bag, weighing a total of 19

grams and worth approximately $1,900.     At trial, appellant

stipulated that if he in fact possessed the drugs, the evidence

would be sufficient to show he did so with the intent to

distribute.   Appellant challenged only the sufficiency of the

evidence as to possession.

     In overruling the motion to strike the evidence, the trial

court found appellant's actions were sufficient to find him

guilty.

                               ANALYSIS

     When considering the issue of sufficiency on appeal, we view

the evidence in the light most 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).   "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 all fair inferences that may be drawn

therefrom."'"   Norman v. Commonwealth, 2 Va. App. 518, 520, 346

S.E.2d 44, 45 (1986) (quoting Parks v. Commonwealth, 221 Va. 492,

498, 270 S.E.2d 755, 759 (1980) (quoting Wright v. Commonwealth,

196 Va. 132, 137, 82 S.E.2d 603, 606 (1954))).    The trial court's

judgment will not be set aside unless plainly wrong or without

                                - 3 -
evidence to support it.   Josephs v. Commonwealth, 10 Va. App. 87,

99, 390 S.E.2d 491, 497 (1990) (en banc).

     Possession of a controlled substance may be actual or

constructive.   See Archer v. Commonwealth, 225 Va. 416, 418, 303

S.E.2d 863, 863 (1983).   "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.'"    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)).    See

Eckhart v. Commonwealth, 222 Va. 447, 450, 281 S.E.2d 853, 855

(1981); McGee v. Commonwealth, 4 Va. App. 317, 322, 357 S.E.2d

738, 740 (1987).

     Although mere proximity to drugs is insufficient to establish

possession, such a circumstance may be probative in determining

whether an accused possessed the drugs.   Lane v. Commonwealth, 223

Va. 713, 716, 292 S.E.2d 358, 360 (1982).    "Ownership or occupancy

of the vehicle in which the drugs are found is likewise a

circumstance probative of possession."    Glasco v. Commonwealth, 26

Va. App. 763, 774, 497 S.E.2d 150, 155 (1998) (citations omitted),

aff'd, 257 Va. 433, 513 S.E.2d 137 (1999).    Thus, in resolving

this issue, we must consider "the totality of the circumstances



                               - 4 -
disclosed by the evidence."    Womack v. Commonwealth, 220 Va. 5, 8,

255 S.E.2d 351, 353 (1979).

     Proof by circumstantial evidence "'is not sufficient . . . if

it engenders only a suspicion or even a probability of guilt.'"

Littlejohn v. Commonwealth, 24 Va. App. 401, 414, 482 S.E.2d 853,

859 (1997) (quoting Hyde v. Commonwealth, 217 Va. 950, 955, 234

S.E.2d 74, 78 (1977)).   "'"All necessary circumstances proved must

be consistent with guilt and inconsistent with innocence and

exclude every reasonable hypothesis of innocence."'"   Betancourt

v. Commonwealth, 26 Va. App. 363, 373, 494 S.E.2d 873, 878 (1998)

(quoting Stover v. Commonwealth, 222 Va. 618, 623, 283 S.E.2d 194,

196 (1981) (quoting Inge v. Commonwealth, 217 Va. 360, 366, 228

S.E.2d 563, 567 (1976))).   "When, from the circumstantial

evidence, 'it is just as likely, if not more likely,' that a

'reasonable hypothesis of innocence' explains the accused's

conduct, the evidence cannot be said to rise to the level of proof

beyond a reasonable doubt."    Littlejohn, 24 Va. App. at 414, 482

S.E.2d at 859 (quoting Haywood v. Commonwealth, 20 Va. App. 562,

567-68, 458 S.E.2d 606, 609 (1995)).    The Commonwealth need not

"'exclude every possible theory or surmise,'" but it must exclude

those hypotheses "'which flow from the evidence itself.'"

Cantrell v. Commonwealth, 7 Va. App. 269, 289-90, 373 S.E.2d 328,

338-39 (1988) (quoting Black v. Commonwealth, 222 Va. 838, 841,

284 S.E.2d 608, 609 (1981)).



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       Appellant argues Crisman v. Commonwealth, 197 Va. 17, 87

S.E.2d 796 (1955), controls review of this case.    We disagree.

The facts in Crisman are distinctly different.

       Crisman was riding in the backseat of a car when it was

stopped by the police.    Id. at 18, 87 S.E.2d at 797.   Three men

were in the front seat, and Crisman's brother was in the back with

him.   Id.   While searching the vehicle, the police

             discovered "a small quantity of white powder
             on the floor in front of the rear seat".
             This powder (which was exhibited before [the
             trial court]) was collected on paper and
             turned over to a chemist for the police
             department. The chemist testified that his
             analysis of the powder revealed that it
             contained .2364 grains of heroin.

Id. at 18-19, 87 S.E.2d at 797-98 (quoting the trial court).      The

owner of the car testified he had washed the car the previous day

and seen nothing on the rear floorboard of the car.      Id. at 19, 87

S.E.2d at 798.    He also testified that no one other than Crisman

and his brother, whom the owner had picked up earlier that day as

they were walking down the road, had been in the backseat of the

car since it was washed.    Id.

       The Supreme Court held the Commonwealth had not proven

Crisman possessed the heroin as any of the five men could have

placed the drug on the floor.     Id. at 20, 87 S.E.2d at 799.   The

Court noted the only evidence tying the drug to Crisman was

presence in the car.




                                  - 6 -
     Here, the drugs were found in plain view and within

appellant's reach.    These circumstances are probative of his

guilt.    See Brown v. Commonwealth, 5 Va. App. 489, 491-93, 364

S.E.2d 773, 774-75 (1988) (finding that the evidence was

sufficient to support a conviction for possession of cocaine found

in plain view and within an arm's reach of the accused, even

though others were present).   Unlike the heroin in Crisman, the

cocaine here was in large chunks, easily observable on the floor

of the cab and easily retrievable.

     Additionally, the cocaine found in the cab was valued at

$1,900.   In Collins v. Commonwealth, we acknowledged that such

amounts are "'something of significant value and not something

that one would likely have abandoned or carelessly left in the

area there.'"   13 Va. App. 177, 180, 409 S.E.2d 175, 176 (1991)

(quoting the trial court).    It is unlikely that someone other than

appellant left almost $2,000 worth of cocaine in plain view on the

floor of the cab.

     More importantly, when the police activated their emergency

equipment, appellant removed his left hand from the back of the

seat, "put his arm down, leaned forward, move[d] to the left and

he bent down to the left where his shoulder was bent down below

the rear window."    This furtive gesture, when viewed in the

totality of the circumstances, supports the trial court's finding

that appellant was aware of the presence and the character of the

drug and that the drug was subject to his dominion and control.

                                - 7 -
See Powell v. Commonwealth, 27 Va. App. 173, 178-79, 497 S.E.2d

899, 901 (1998).

     This Court previously has considered such gestures evidence

of possession.   In Powell, for example, Powell was sitting on a

low wall when he placed his clenched fist behind his back.    Id. at

176, 497 S.E.2d at 900.    When he brought his hand back in front,

the hand was unclenched.    Id.   Police found a small paper bag

containing cocaine lying on the ground directly below the spot

where Powell had been sitting.     Id.    We held:

           Appellant's suspicious hand movement and the
           fact that cocaine was found precisely where
           the appellant would have dropped an object
           from his left hand behind his back, support
           the inference that appellant possessed the
           bag of cocaine and discarded it on the ground
           behind him when the officers approached.

Id. at 178-79, 497 S.E.2d at 901.     See also Clarke v.

Commonwealth, 32 Va. App. 286, 305-06, 527 S.E.2d 484, 493-94

(2000) (affirming a conviction for possession of firearm while

intending to distribute drugs based in part on evidence that

appellant reached behind his seat toward a gun).

     More than mere presence proved appellant possessed the

cocaine.   From the evidence presented, the trial court could

properly conclude that appellant was guilty of possession with the

intent to distribute.   We affirm the conviction.

                                                      Affirmed.




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