                               COURT OF APPEALS OF VIRGINIA


Present: Judges Beales, Alston and Senior Judge Annunziata
Argued at Alexandria, Virginia


KEITH RENDELL COLBERT
                                                             MEMORANDUM OPINION * BY
v.     Record No. 0496-09-4                                JUDGE ROSEMARIE ANNUNZIATA
                                                                  FEBRUARY 9, 2010
COMMONWEALTH OF VIRGINIA


                      FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
                                  Randy I. Bellows, Judge

                 Kate A. Garretson (The Garretson Law Firm, P.C., on brief), for
                 appellant.

                 John W. Blanton, Assistant Attorney General (William C. Mims,
                 Attorney General, on brief), for appellee.


       Appellant was convicted of possession of cocaine with the intent to distribute. On

appeal, he maintains the evidence was insufficient to support his conviction because it failed to

prove he possessed cocaine. 1 We disagree and affirm the conviction.

                                             Background

       “On appeal, ‘we review the evidence in the light most favorable to the Commonwealth,

granting to it all reasonable inferences fairly deducible therefrom.’” Archer v. Commonwealth,

26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997) (quoting Martin v. Commonwealth, 4 Va. App.

438, 443, 358 S.E.2d 415, 418 (1987)).




       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
       1
         Whether the evidence was insufficient to prove appellant’s intent to distribute is not
before us, as that issue was procedurally defaulted pursuant to Rule 5A:18.
       On February 21, 2008, Officer Robin Wyatt drove his unmarked police car into the

parking lot of a mall and noticed a car parked approximately twenty spaces away from the other

cars. The driver and the front seat passenger were inside the car. Wyatt continued his

observation for a period of time and grew suspicious when no one exited the vehicle. Finally,

the passenger stepped out of the car, and as he was walking away, the driver called him back.

       Wyatt, dressed in police uniform, walked toward the passenger. The passenger had

almost reached the car when the driver and passenger noticed Wyatt’s approach. The passenger,

Ron Reynolds, was unsteady on his feet and appeared intoxicated. As Wyatt drew closer, he

smelled no alcohol on Reynolds but, as Wyatt spoke with Reynolds, he concluded Reynolds was

under the influence of “some narcotic.”

       Reynolds placed his left hand in his pocket and turned away from Wyatt. Despite

Wyatt’s repeated commands to Reynolds to remove his hand, Reynolds continued to place his

left hand in his pocket. When Wyatt escorted Reynolds to the car, the driver “started getting

very defensive . . . [t]elling me, why was I bothering them . . . harassing them.” Wyatt testified

appellant “was moving around in the driver’s seat . . . . [I]t appeared that he was moving stuff in

the vehicle or hiding something in the vehicle.” Wyatt instructed appellant to stop moving and

to place his hands in his lap, commands that appellant ignored. Appellant continued moving,

telling Wyatt he was harassing them. Wyatt called for backup assistance.

       When other officers arrived, Wyatt patted down Reynolds and recovered two baggies

containing marijuana, one baggie containing cocaine, and two glass tubes which appeared to be

crack pipes. Wyatt and the other officers also searched the area outside the car. On the

passenger side near where Reynolds and Wyatt had been standing, an officer found another

baggie of cocaine on the ground.




                                               -2-
       After asking appellant to exit the car, Wyatt searched him and found approximately

$1,000 cash, primarily in $20 denominations. Suspicious that appellant had hidden something in

the car, Wyatt opened the driver’s door and “did a quick search of the driver’s area.” As he did

so, Wyatt noticed a duffel bag in the center of the backseat. A Tupperware container was

protruding from the unzipped bag, and a CD case was next to it. With his flashlight Wyatt could

see razor blades, scissors, and pill bottles inside the Tupperware container. The CD case

contained a digital scale bearing cocaine residue. Appellant’s wallet, containing $700 cash, was

recovered from the center console.

       After the police removed the duffel bag and Tupperware container, a drug dog searched

the vehicle. The drug dog, trained to alert at the smell of marijuana, cocaine, crack, heroin,

methamphetamine, ecstasy, and “MDMA,” circled the car and alerted to the driver’s door. An

officer opened the car door and allowed the dog to search the interior. The dog alerted to the

driver’s seat area, specifically the carpeted area beneath the seat. When the officers searched the

car, they found marijuana residue beneath the driver’s seat.

       At trial, Detective Michael Riccio testified as an expert on drug distribution and

packaging. In Riccio’s opinion, the bags of cocaine recovered from the scene had a “street

value” of approximately $20 per bag. Riccio also stated that in the CD case found in appellant’s

car was a digital scale used to weigh drugs and that scissors such as those found in the

Tupperware container were used to cut plastic baggies to package the cocaine. Riccio explained

that drug dealers who possessed a “higher quality” of cocaine in “chunk form” divided it with a

razor blade. After cutting the cocaine, a dealer would measure the amount to be sold by

weighing it on a digital scale such as the one recovered from appellant’s car. Riccio noted that,

in arresting drug dealers, “You might catch them with a little product and little cash or a lot of

cash and [a] little product.”

                                                -3-
       Appellant acknowledged he owned the vehicle in which the duffel bag was found, but

denied the duffel bag was his and denied knowledge of the items recovered by police from the

backseat. Appellant stated that his girlfriend had driven his car earlier in the day, but he did not

recall seeing anything on the backseat when she turned the car over to him. He also testified

that, when he picked up Reynolds, Reynolds “had a couple of things with him,” but that he did

not see Reynolds place anything on the backseat when he opened the back door before getting

into the front passenger seat. When asked if there was anything other than the duffel bag in the

backseat at the time of his arrest, appellant answered, “That’s what the officer said.” Appellant

denied moving his hands around during his encounter with Wyatt and denied turning around so

that he could see the duffel bag. He stated he kept his hands on the steering wheel while Wyatt

asked him repeatedly, “What are you doing?” Appellant explained that his grandmother had

given him $1,200 in cash to help him pay his bills because he was unemployed.

       Appellant’s girlfriend, Emma Tyrell, denied that a duffel bag was in the car when she

turned the car over to appellant. However, she acknowledged that she and appellant had left an

empty Tupperware container in the back of the car. Tyrell identified the Tupperware container

found by police on top of the duffel bag as the one she and appellant had used to take soup to his

cousin’s house.

                                              Analysis

       “To establish possession of a controlled substance, it generally is necessary to show that

the defendant was aware of the presence and character of the particular substance and was

intentionally and consciously in possession of it.” Gillis v. Commonwealth, 215 Va. 298, 301,

208 S.E.2d 768, 771 (1974). However, “suspicion or even probability of guilt is not sufficient.

There must be an unbroken chain of circumstances ‘proving the guilt of the accused to the

exclusion of any other rational hypothesis and to a moral certainty.’” Gordon v. Commonwealth,

                                                -4-
212 Va. 298, 300, 183 S.E.2d 735, 736 (1971) (quoting Brown v. Commonwealth, 211 Va. 252,

255, 176 S.E.2d 813, 815 (1970)).

       “Constructive ‘possession may be proved by evidence of acts, declarations or conduct of the

accused from which the inference may be fairly drawn that he knew of the existence of narcotics at

the place where they were found.’” Hardy v. Commonwealth, 17 Va. App. 677, 682, 440 S.E.2d

434, 437 (1994) (quoting Andrews v. Commonwealth, 216 Va. 179, 182, 217 S.E.2d 812, 814

(1975)). Moreover, the substance in question must be “‘subject to his dominion and control.’”

Glasco v. Commonwealth, 26 Va. App. 763, 774, 497 S.E.2d 150, 155 (1998) (quoting Powers v.

Commonwealth, 227 Va. 474, 476, 316 S.E.2d 739, 740 (1984)). “In resolving this issue, the court

must consider ‘the totality of the circumstances disclosed by the evidence.’” Id. (quoting Womack

v. Commonwealth, 220 Va. 5, 8, 255 S.E.2d 351, 353 (1979)).

               Circumstantial evidence may establish the elements of a crime,
               provided it excludes every reasonable hypothesis of innocence.
               “The statement that circumstantial evidence must exclude every
               reasonable theory of innocence is simply another way of stating
               that the Commonwealth has the burden of proof beyond a
               reasonable doubt.” Commonwealth v. Hudson, 265 Va. 505, 513,
               578 S.E.2d 781, 785 (2003). This Court must determine not
               whether there is some evidence to support [appellant’s] hypothesis
               of innocence but, rather, whether a reasonable fact finder, upon
               consideration of all the evidence, could have rejected appellant’s
               theories and found him guilty beyond a reasonable doubt. Whether
               a hypothesis of innocence is reasonable is a question of fact.

Corbin v. Commonwealth, 44 Va. App. 196, 202-03, 604 S.E.2d 111, 114 (2004) (some citations

omitted).

       We cannot say that the fact finder’s rejection of appellant’s hypothesis of innocence was

unreasonable. Examining the “totality of the circumstances,” the fact finder could reasonably

conclude that appellant was aware of the cocaine residue on the scale and that it was subject to his

dominion and control.



                                                 -5-
        “Although mere proximity to drugs is insufficient to establish possession, it is a

circumstance which may be probative in determining whether an accused possessed such drugs.”

Glasco, 26 Va. App. at 774, 497 S.E.2d at 155. And, while “[o]ccupancy of a vehicle where

[contraband is] found is insufficient, standing alone, to support an inference of possession, . . . it is a

circumstance which the fact finder may consider along with other evidence when determining

whether a person knowingly possessed drugs.” Hardy, 17 Va. App. at 682, 440 S.E.2d at 437

(citations omitted). Here, the CD case in which the cocaine was found was in appellant’s car,

within appellant’s reach immediately next to appellant’s Tupperware container, and was in open

view. While appellant denied the duffel bag and the items on top of it were his, the fact finder was

not compelled to accept his testimony. His girlfriend directly contradicted him, identifying the

Tupperware container in which distribution paraphernalia was found as one she and appellant had

used and noting that she had placed the empty container in the backseat earlier that day. The

Tupperware container, the paraphernalia inside, and the CD case containing the cocaine residue

were visible from the driver’s seat. Furthermore, contrary to the suggestion that the duffel bag

belonged to his passenger, Reynolds left the car without the duffel bag. The fact finder was entitled

to infer that Reynolds took his belongings with him and that he left the bag in the car because it did

not belong to him.

        The evidence further shows that, when a uniformed officer approached, appellant responded

by moving about in the car. To the officer, appellant appeared to be “moving . . . or hiding stuff in

the vehicle.” Appellant continued this furtive movement despite Wyatt’s orders to keep his hands

on the steering wheel. While not conclusive, such furtive behavior was indicative of appellant’s

guilty state of mind. See Washington v. Commonwealth, 29 Va. App. 5, 13, 509 S.E.2d 512, 516

(1999) (“Deliberately furtive actions and flight at the approach of strangers or law officers are

strong indicia of mens rea[.]”). Moreover, from the evidence of the dog’s alert to the driver’s side

                                                   -6-
of the vehicle, the fact finder could reasonably infer that appellant had handled the drugs and was

aware of the nature and presence of the cocaine in the vehicle.

        Finally, the fact finder was not required to accept appellant’s explanation for the unusually

large amount of cash in his possession at the time the cocaine was found. See Marable v.

Commonwealth, 27 Va. App. 505, 509-10, 500 S.E.2d 233, 235 (1998). Rather, the fact finder

could rationally conclude that the cash, mostly in denominations consistent with cocaine

distribution, was an additional factor tending to prove appellant was aware of the cocaine residue

on the scale and that it was subject to his dominion and control. 2

        The evidence, when viewed as a whole, was sufficient to establish beyond a reasonable

doubt that appellant possessed the cocaine.

                                                                                       Affirmed.




        2
          Appellant relies on the Virginia Supreme Court’s decision in Powers in support of his
argument that the evidence was insufficient to establish his guilt beyond a reasonable doubt. His
reliance is misplaced. In Powers the Supreme Court of Virginia overturned the defendant’s
conviction because the only evidence of his awareness of the nature and presence of the drugs
was his occupancy of the premises. Powers, 227 Va. at 475, 316 S.E.2d at 740 (“Proof that the
LSD was found in premises or a vehicle owned or occupied by the defendant is insufficient,
standing alone, to prove constructive possession. Code § 18.2-250.” (emphasis added)).
                                                -7-
