                               COURT OF APPEALS OF VIRGINIA


Present: Judges Humphreys, Beales and Senior Judge Coleman
Argued at Chesapeake, Virginia


MICHAEL RASHIF KENTA GREEN
                                                              MEMORANDUM OPINION ∗ BY
v.     Record No. 0701-08-1                                   JUDGE SAM W. COLEMAN III
                                                                   MARCH 24, 2009
COMMONWEALTH OF VIRGINIA


                  FROM THE CIRCUIT COURT OF NORTHAMPTON COUNTY
                                  Glen A. Tyler, Judge

                 Andrew G. Wiggin for appellant.

                 Craig W. Stallard, Assistant Attorney General (Robert F. McDonnell,
                 Attorney General, on brief), for appellee.


       Michael Rashif Kenta Green was convicted following a bench trial of possession of

cocaine with the intent to distribute. On appeal, Green asserts the evidence was insufficient to

support his conviction. For the reasons that follow, we disagree and affirm the trial court’s

decision.

                                          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)).

       So viewed, the evidence proved that on February 28, 2007, Officer Frank Ulrich was

assisting another officer in a traffic stop on the Chesapeake Bay Bridge when he observed a car


       ∗
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
with heavily tinted windows that he believed to be in violation of Code § 46.2-1052. Ulrich

motioned for the car to stop. The driver first pulled the car to the shoulder, but then suddenly

accelerated and drove away. Ulrich pursued the car as it traveled at a high rate of speed. After

exiting one of the tunnels, the car veered towards the right side of the bridge and appellant, the

front seat passenger, threw “an object over the top of the bridge.” Ulrich described the object as

“some kind of a bag.” Ulrich succeeded in forcing the vehicle to stop. Appellant immediately

“jumped out of the vehicle and raised his hands” as the driver leaned out of sight. When the

driver exited the car, he “leaned up . . . in a pulling motion and . . . a bag came up and [burst and]

all of a sudden you see a white powder substance explode inside of the car, like a snowstorm.”

The driver attempted to throw the bag over the side of the bridge, but the empty bag blew back

into the roadway. “[B]ecause of the wind [‘the white powder substance’] was all over the

outside of the vehicle, all over the door, inside the door, the handles where [the driver] grabbed.”

       As the police searched appellant, three small chunks of an off-white powder fell from

inside his pants legs. Testing revealed that the objects from appellant’s pants and the powder in

the vehicle were cocaine.

       The powder cocaine recovered from the car weighed 157 grams. Special Agent Scott

Wade testified the amount of narcotics recovered was inconsistent with personal use and

consistent with cocaine trafficking.

       From the car, the police also recovered two traffic citations issued to appellant that day.

Both indicated he earlier was driving the car in which he was riding as a passenger at the time of

the stop. The first citation was issued in Delaware and the second in New Jersey. Also in the car

were receipts indicating the car passed through a Virginia toll gate, traveling north, at

approximately 3:40 a.m. The summonses were issued at approximately 8:30 a.m. and 9:20 a.m.,

and the car again passed through a Virginia toll gate, traveling south, at 5:11 p.m. Wade

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explained that the apparent route appellant and his companion traveled is a “route routinely used

by individuals trafficking narcotics into the Tidewater area . . . .”

                                             ANALYSIS

       Appellant concedes that “the evidence was sufficient [to prove] that whoever possessed

the amount of cocaine” in the bag recovered from the car “possessed it with the intent to

distribute it.” He argues that the Commonwealth failed to demonstrate he possessed any of the

cocaine located in the car or on his person.

       “The Commonwealth may prove possession of a controlled substance by showing either

actual or constructive possession.” Barlow v. Commonwealth, 26 Va. App. 421, 429, 494 S.E.2d

901, 904 (1998).

               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)). “The Commonwealth is not

required to prove that there is no possibility that someone else may have planted, discarded,

abandoned or placed the drugs . . . .” Brown v. Commonwealth, 15 Va. App. 1, 10, 421 S.E.2d

877, 883 (1992) (en banc).

       Appellant and his companion shared the driving of the car during a fourteen-hour trip

traversing a known drug trafficking route. Both men claimed they did not know who owned the

vehicle. Instead of stopping for Ulrich, the driver and appellant attempted to flee the scene.

Appellant discarded a bag over the side of the bridge during the chase, and the driver attempted

to discard another after the stop. The driver’s bag contained a significant amount of cocaine.

Although the evidence indicated the bag had been placed near or in a vent on the driver’s side of
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the center console, it was in close proximity to where appellant sat in the front passenger seat.

Appellant initially refused to obey Ulrich’s orders to get to the ground, thus distracting the

officer as the driver attempted to discard the other package. The car’s driver swerved towards

the side of the bridge allowing appellant to discard a bag, further indicating the two were

working together and in concert with one another. Finally, appellant was in actual possession of

a small quantity of cocaine which fell from his pants leg during the search, demonstrating his

familiarity with the drugs and further supporting the court’s conclusion that he jointly possessed

the larger amount along with the driver.

                      In determining whether a defendant constructively
               possessed drugs, the defendant’s proximity to the drugs and his
               occupancy of the vehicle must also be considered. Although mere
               proximity to the drugs is insufficient to establish possession, and
               occupancy of the vehicle does not give rise to a presumption of
               possession, [see] Code § 18.2-250, both are factors which may be
               considered in determining whether a defendant possessed drugs.

Josephs v. Commonwealth, 10 Va. App. 87, 100, 390 S.E.2d 491, 498 (1990) (en banc).

“Moreover, ‘the possession need not be exclusive. The defendant may share [drugs] with one or

more.’” Barlow v. Commonwealth, 26 Va. App. 421, 429, 494 S.E.2d 901, 905 (1998) (quoting

Ritter v. Commonwealth, 210 Va. 732, 741, 173 S.E.2d 799, 805-06 (1970)).

       The trial court believed the Commonwealth’s evidence and rejected appellant’s version

of the events. “The credibility of the witnesses and the weight accorded the evidence are matters

solely for the fact finder who has the opportunity to see and hear that evidence as it is presented.”

Sandoval v. Commonwealth, 20 Va. App. 133, 138, 455 S.E.2d 730, 732 (1995).

       Appellant’s proximity to the drugs, his occupancy of the vehicle, and his possession of

the cocaine found on his person, combined with the fact that he participated in driving the car on

a one-day roundtrip through Delaware and New Jersey, over a known drug trafficking route,

along with the other evidence (including the car’s flight from Ulrich and appellant’s throwing


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another bag over the side of the bridge as the car sped away from the police), provided the trial

court with sufficient evidence to conclude appellant knowingly and jointly possessed the

narcotics with the requisite intent.

        The Commonwealth’s evidence was competent, was not inherently incredible, and was

sufficient to prove beyond a reasonable doubt that appellant was guilty of possession of cocaine

with the intent to distribute.

                                                                                 Affirmed.




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