                       COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Fitzpatrick, Judges Elder and Humphreys
Argued at Alexandria, Virginia


JUSTIN THOMAS BROOKS
                                          MEMORANDUM OPINION * BY
v.   Record No. 0811-02-4                  JUDGE LARRY G. ELDER
                                               MARCH 4, 2003
COMMONWEALTH OF VIRGINIA


              FROM THE CIRCUIT COURT OF STAFFORD COUNTY
                  J. Peyton Farmer, Judge Designate

          Patricia Kelly (Woodbridge, Ventura & Kelly,
          P.C., on brief), for appellant.

          Jennifer R. Franklin, Assistant Attorney
          General (Jerry W. Kilgore, Attorney General,
          on brief), for appellee.


     Justin Thomas Brooks (appellant) appeals from his jury

trial conviction for possession of cocaine with intent to

distribute.   On appeal, he contends the evidence was

insufficient to prove both that he possessed the cocaine and

that he did so with the requisite intent.    We hold the evidence

was sufficient to support the conviction, and we affirm.

     On appellate review, we examine the evidence in the light

most favorable to the Commonwealth, and we may not disturb the

jury's verdict unless it is plainly wrong or without evidence to

support it.   Traverso v. Commonwealth, 6 Va. App. 172, 176, 366


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
S.E.2d 719, 721 (1988).    Any element of an offense may be proved

by circumstantial evidence, provided the evidence as a whole is

sufficiently convincing to exclude all reasonable hypotheses of

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

864, 876 (1983).

                                  I.

                              POSSESSION

        "To convict a person of possession of illegal drugs 'the

Commonwealth must prove that the defendant was aware of the

presence and character of the drugs and that he intentionally

and consciously possessed them.'"        Castaneda v. Commonwealth, 7

Va. App. 574, 583, 376 S.E.2d 82, 86 (1989) (en banc) (quoting

Andrews v. Commonwealth, 216 Va. 179, 182, 217 S.E.2d 812, 814

(1975)).    "Physical possession giving the defendant 'immediate

and exclusive control' is sufficient."        Gillis v. Commonwealth,

215 Va. 298, 301-02, 208 S.E.2d 768, 771 (1974).       Proximity to a

controlled substance, standing alone, is insufficient.        Wright

v. Commonwealth, 217 Va. 669, 670, 232 S.E.2d 733, 734 (1977).

        Here, the direct and circumstantial evidence supported a

finding that appellant had actual possession of the cocaine

Deputy C.W. Reed retrieved from the ground.       Appellant admitted

that he expected Deputy Reed to search him during the traffic

stop.    Deputy Reed testified, and the videotape confirmed, that

appellant appeared nervous while he waited at the rear of his

car and that he placed his hands in his pockets repeatedly.       The

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videotape showed appellant using several pulling motions to

remove an unidentified object from his right pants pocket.      The

videotape then showed appellant moving his hand off-camera to

the right and making a throwing motion with that hand before

placing both hands on the rear of the car.

     Within minutes, Deputy Reed retrieved an object from the

ground, five to seven feet from where appellant stood, and from

the same area toward which appellant appeared to have thrown the

object he removed from his pocket.      Before Deputy Reed

approached the object, he stood the same distance from the

object as appellant.   Although Deputy Reed could not tell what

the object was from that distance, appellant, who presumably had

no better opportunity to identify the object from that distance

than Deputy Reed did, said, "Oh, man, I guess you're going to

say that those are mine."    Thus, appellant indicated an

awareness of the presence and character of the drugs he had

discarded moments earlier.

     Although the store parking lot in which the stop occurred

was "fairly well traveled," was known as "a high drug traffic

area," and contained other parked cars, the store was closed,

"no one [other than Deputy Reed's back-up officers was] in the

area" during the time of the stop, and the plastic baggie

containing the cocaine did not appear to have been "walked

over[,] . . . driven upon or anything to that effect."       Further,

no evidence established that Deputy Reed found any other item on

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the ground in the area in which appellant had discarded the item

he pulled from his pocket.    Finally, the jury was entitled to

infer from the value of the drugs, which the evidence

established was about sixty dollars, that they had not been

randomly discarded by someone other than appellant.     Cf. Brown

v. Commonwealth, 15 Va. App. 1, 9, 421 S.E.2d 877, 883 (1992)

(en banc) ("[T]he finder of fact may infer from the value of

drugs found on premises owned or occupied by an individual that

it is unlikely anyone who is a transient would leave a thing of

great value in a place not under his dominion and control.").

     Thus, the only reasonable hypothesis flowing from the

evidence, viewed in the light most favorable to the

Commonwealth, was that appellant had actual possession of the

crack cocaine at the time of the stop, anticipated being

searched, and discarded the cocaine so that it would not be

found on his person.

                                 II.

                       INTENT TO DISTRIBUTE

     The intent of an accused to distribute drugs may be shown

by circumstantial evidence.    Wells v. Commonwealth, 2 Va. App.

549, 551, 347 S.E.2d 139, 140 (1986).   Circumstances that shed

light on the accused's specific intent regarding illegal drugs

in his possession include (1) the quantity and method of

packaging of the drugs possessed by him, (2) the presence or

absence of an unusual amount of money suggesting profit from

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sales, and (3) the presence or absence of drug paraphernalia.

See Servis v. Commonwealth, 6 Va. App. 507, 524-25, 371 S.E.2d

156, 165 (1988); see also Dukes v. Commonwealth, 227 Va. 119,

122, 313 S.E.2d 382, 383 (1984); Wells, 2 Va. App. at 551-52,

347 S.E.2d at 140.

     Here, the evidence established that appellant had in his

possession three twenty-dollar rocks of crack cocaine weighing a

total of 0.88 grams.   Although appellant also had the remains of

a marijuana cigarette in his pocket, indicating he may have been

a user of marijuana, no evidence established that he possessed a

device, either on his person or in his car, for ingesting the

cocaine.   Appellant had over four hundred dollars in cash,

including sixteen twenty-dollar bills, five one-dollar bills,

one ten-dollar bill and one hundred-dollar bill.   The bills

"were all crumpled individually and separate from each other."

     Sergeant Gil Kendall, qualified as an expert witness in the

field of illegal narcotics, testified that the quantity of

cocaine appellant possessed and the method of its packaging,

coupled with the quantity of loose and crumpled twenty-dollar

bills he possessed, was consistent with possession of cocaine

for sale 1 and caused him to conclude that appellant did not

possess the cocaine for personal use.   He testified that a user


     1
       Appellant did not allege at trial and does not contend on
appeal that Kendall's statement was improper testimony on an
ultimate issue in the case. Thus, we do not consider this
issue.

                               - 5 -
of crack cocaine ordinarily would not have bought the three

twenty-dollar rocks of crack cocaine that appellant had in his

possession.   The rocks weighed 0.88 grams, and Sergeant Kendall

testified that a typical user would have purchased an uncut gram

of cocaine because he could have obtained it for a lower price.

Sergeant Kendall also noted the rocks of crack cocaine appellant

possessed ordinarily sold for twenty or twenty-five dollars each

and, for this reason, that appellant's possession of a quantity

of crumpled twenty-dollar bills was significant.   He explained

that drug sales usually occur with "exact change" because, in

"transactions between [a] buyer and [a] seller, nobody trust[s]

anybody."   He also noted that the condition of the money was

"inconsistent with someone just getting money from the bank or

cashing a check or someone giving it to you because most people

keep their money in a standard way."

     Thus, although Kendall admitted the quantity of cocaine

appellant possessed was not unusually large, evidence of the

method of cutting and packaging of the cocaine as twenty-dollar

rocks, coupled with the quantity of cash and crumpled

twenty-dollar bills and the absence of a smoking device or other

evidence that he possessed the drugs for personal use, supported

the finding that he possessed the cocaine with an intent to

distribute it.




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     For these reasons, we hold the evidence is sufficient to

support appellant's conviction, and we affirm.

                                                        Affirmed.




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