                        COURT OF APPEALS OF VIRGINIA


Present: Judges Bumgardner, Humphreys and Clements
Argued at Richmond, Virginia


HERMAN RODNEY JACKSON
                                           MEMORANDUM OPINION * BY
v.   Record No. 2823-99-4                 JUDGE ROBERT J. HUMPHREYS
                                              NOVEMBER 14, 2000
COMMONWEALTH OF VIRGINIA


         FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA
              Wiley R. Wright, Jr., Judge Designate

          Kevin T. Gaynor, Assistant Public Defender,
          for appellant.

          Shelly R. James, Assistant Attorney General
          (Mark L. Earley, Attorney General, on brief),
          for appellee.


     Herman Rodney Jackson appeals his conviction, after a bench

trial, for possession of cocaine with intent to distribute, in

violation of Code § 18.2-248.    Specifically, Jackson argues that

the evidence was insufficient to support the conviction.

     "Where the sufficiency of the evidence is challenged after

conviction, it is our duty to consider it in the light most

favorable to the Commonwealth and give it all reasonable

inferences fairly deducible therefrom.     We should affirm the

judgment unless it appears from the evidence that the judgment

is plainly wrong or without evidence to support it.     Code


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
§ 8-491."    Higginbotham v. Commonwealth, 216 Va. 349, 352, 218

S.E.2d 534, 537 (1975).

       "In order to convict a person of illegal possession of an

illicit drug, the Commonwealth must prove beyond a reasonable

doubt that the accused was aware of the presence and character

of the drug and that the accused consciously possessed it."

Walton v. Commonwealth, 255 Va. 422, 426, 497 S.E.2d 869, 871

(1998).    "[P]roof of actual possession, [however,] is not

required; proof of constructive possession will suffice.

Constructive possession may be established when there are acts,

statements, or conduct of the accused or other facts or

circumstances which tend to show that the [accused] was aware of

both the presence and character of the substance and that it was

subject to his dominion and control."    Id. at 426, 497 S.E.2d at

872.

       Here, Jackson was a passenger in a black Volkswagen which

was pulled over in response to a radio dispatch stating that the

passengers in the Volkswagen had been observed smoking

marijuana.    The Volkswagen was stopped and blocked in, from the

front and back, by two Alexandria Police Department squad cars.

Investigator Jesse Meekins immediately removed Jackson from the

passenger side of the Volkswagen while the other three officers

dealt with the remaining three passengers.

       Meekins took Jackson by the hands, pulled him out of the

car, and led him to the rear of his squad car, which was parked

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behind the Volkswagen.   Meekins handcuffed Jackson and attempted

to search him.   However, Jackson struggled and moved around,

requiring Meekins to repeatedly order him to stop moving.

Officer Meekins lost sight of Jackson's hands for a brief moment

and noticed that Jackson was "messing with [the] waistline" to

his pants.   Meekins continued the search and observed that

Jackson was wearing two pairs of sweatpants.    From them, he

recovered a pipe and $103.00, which was made up of five

twenty-dollar bills and three one-dollar bills.

     A few moments later, Officer George approached the two to

see what the struggle was about.   When he did this, he saw "a

piece of clear plastic that was cylindrical and appeared to have

numerous rock-like objects in it that was sitting directly

behind the right rear tire of [Meekins'] vehicle[,] and about a

foot in front of [Jackson's] feet."    Although the package was

directly behind the tire of Meekins' squad car, it showed no

signs of having been run over by the tire.   Furthermore, no one

other than Meekins and Jackson had been standing in that area

since the squad car had stopped behind the Volkswagen.

     Officer George testified that the package contained "12

individually wrapped rocks of crack cocaine."   After Officer

George was established as an expert in the sale and distribution

of drugs, he testified that each rock sold on the street for

approximately $20, yielding a total street value of $240.00.      He

testified that the quantity and packaging of the cocaine was

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inconsistent with personal use.   Officer George also testified

that, in response to Meekins' question asking Jackson if he was

a narcotics user, Jackson said "no", then "said 'I s[m]oke

marijuana.'"

     Meekins testified that, while interviewing Jackson, he had

placed the recovered package of crack cocaine on the table and

asked Jackson, "You're not going to sell this while your brother

was in the car [sic]?"   Jackson replied "No."   Keeping his hand

on the package, Meekins then said, "This was for later, right?".

Jackson replied, "Yeah."   Jackson then stated, "No, I don't know

where that came from . . . I plead the fifth."

     "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 v. Commonwealth, 26 Va. App. 763, 774, 497

S.E.2d 150, 155 (1998) (citing Womack v. Commonwealth, 220 Va.

5, 8, 255 S.E.2d 351, 353 (1979)), aff'd, 257 Va. 433, 513

S.E.2d 137 (1999).

     In the present case, the "totality of the circumstances"

demonstrates that it was reasonable to conclude the drugs came

from Jackson's person.   First, Jackson admitted that he knew

about the drugs, before retracting his statement.   In addition,

there is simply no other plausible explanation to establish how

the drugs came to rest behind the rear tire of the squad car and

directly in front of Jackson's feet, other than to conclude that

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the drugs came from Jackson's person.     See Johnson v.

Commonwealth, 12 Va. App. 150, 153, 402 S.E.2d 502, 504

(1991)(where drugs were found in a relatively private area at

the very point where a chase initiated, and appellant made a

voluntary acknowledgment that the object found was a "bag of

drugs", the finder of fact could infer that the appellant had

sufficient familiarity with what was on the ground to infer that

he had it in his possession).

     It is well settled that "[c]ircumstantial evidence may

establish the elements of a crime, provided it excludes every

reasonable hypothesis of innocence.     However, the Commonwealth

need only exclude reasonable hypotheses of innocence that flow

from the evidence, not those that spring from the imagination of

the defendant.   Whether a hypothesis of innocence is reasonable

is a question of fact, and a finding by the trial court is

binding on appeal unless plainly wrong."     Glasco at 773-774, 497

S.E.2d at 155.

     Considering the evidence in the light most favorable to the

Commonwealth, we cannot hold that the trial court's conclusion

that Jackson constructively possessed the crack cocaine was

"plainly wrong".

     Finally, "[p]ossession with intent to distribute is a crime

which requires an act coupled with a specific intent.

[However,] [b]ecause direct proof of intent is often impossible

to produce, it may, and frequently must, be shown by

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circumstantial evidence."   Barlow v. Commonwealth, 26 Va. App.

421, 429-430, 494 S.E.2d 901, 905 (1998)(citations omitted).

     "In proving intent, various types of circumstantial

evidence may be appropriate -- evidence concerning the quantity

of drugs and cash possessed, the method of packaging, . . .

whether appellant himself used drugs, and the absence of

evidence suggestive of personal use."     See Poindexter v.

Commonwealth, 16 Va. App. 730, 734-735, 432 S.E.2d 527, 530

(1993); Colbert v. Commonwealth, 219 Va. 1, 4, 244 S.E.2d 748,

749 (1978).

     Here, Jackson possessed a quantity of drugs that Officer

George testified was inconsistent with personal use.    The drugs

were individually packaged, and Jackson had five twenty-dollar

bills on his person.   In addition, Jackson told Officer Meekins

that he didn't do cocaine, but admitted he smoked marijuana.

This admission was supported by the marijuana pipe which was

found on his person.   Finally, Jackson effectively admitted to

Officer Meekins that he intended to sell the cocaine "later,"

and then later retracted his statement.

     Based on this evidence, we hold that the trial court could

conclude beyond a reasonable doubt that Jackson intended to

distribute the crack cocaine.

                                                              Affirmed.




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