                                  COURT OF APPEALS OF VIRGINIA


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


SHARRIEFF MUHAMMAD
                                                               MEMORANDUM OPINION* BY
v.        Record No. 2879-04-1                               JUDGE JEAN HARRISON CLEMENTS
                                                                     MARCH 28, 2006
COMMONWEALTH OF VIRGINIA


                   FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
                                  Johnny E. Morrison, Judge

                    Dianne G. Ringer (Bierowicz & Ringer, P.C., on brief), for
                    appellant.

                    (Judith Williams Jagdmann, Attorney General; Rosemary V. Bourne,
                    Assistant Attorney General, on brief), for appellee.


          Sharrieff Muhammad (appellant) was convicted in a bench trial of possession with intent to

distribute heroin, in violation of Code § 18.2-248. On appeal, he contends that the evidence was

insufficient to sustain his conviction, arguing that the Commonwealth failed to prove the elements

of possession and intent to distribute. For the reasons stated herein, we affirm appellant’s

conviction.

          As the parties are fully conversant with the record in this case and because this

memorandum opinion carries no precedential value, this opinion recites only those facts and

incidents of the proceedings as are necessary to the parties’ understanding of the disposition of this

appeal.




          *
              Pursuant to Code § 17.1-413, this opinion is not designated for publication.
                                         I. BACKGROUND

          “Under familiar principles of appellate review, we view the evidence and all reasonable

inferences fairly deducible from that evidence in the light most favorable to the Commonwealth, the

party that prevailed below.” Banks v. Commonwealth, 41 Va. App. 539, 543, 586 S.E.2d 876, 877

(2003).

          So viewed, the uncontroverted evidence presented by the Commonwealth at trial proved that

on March 25, 2004, at approximately 5:50 p.m., Detective T. McAndrew of the Portsmouth Police

Department received information from a confidential and reliable informant that a man, known to

the informant as “Yoshi,” would be standing on the corner of Turnpike Road and Howard Street

selling heroin. The informant provided a detailed physical description of Yoshi, and disclosed that

Yoshi possessed heroin in the rear of his jeans.

          Based on this information, Detective McAndrew and Detective P. Lipscomb responded to

the intersection of Turnpike Road and Howard Street and, upon arrival at 6:04 p.m., observed

appellant standing on the corner with two other males. Because he matched the description

provided by the informant, the detectives exited the police vehicle, walked up to appellant, and

placed him in custody. Detective McAndrew cuffed appellant’s hands securely behind his back and

seated him in the front passenger seat of the police vehicle. He then asked appellant for his street

name, and appellant responded, “Yoshi.”

          Having placed appellant in the police vehicle, Detective McAndrew informed him that he

was being taken into custody for the suspected possession of heroin. He advised appellant that he

knew the heroin was concealed in the rear of his jeans, and warned him not to remove the heroin in

order to drop it inside the vehicle.

          Detective McAndrew then left the police vehicle and engaged Detective Lipscomb in

conversation. As the detectives conversed in front of the vehicle, Detective McAndrew looked

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toward the windshield and observed the cuffed appellant “moving around” and shifting his

shoulders from “side to side.” Detective Lipscomb also observed appellant “making movements”

and “wiggling.” Having observed this conduct, Detective McAndrew walked over to the passenger

side of the police vehicle, looked through the rear window, and noticed a clear plastic baggie on the

rear floorboard “directly behind” where appellant was seated. The baggie contained 16 individual

capsules of suspected heroin.

       Appellant was the sole occupant of the police vehicle at the time of his arrest. The vehicle

had been assigned to Detective Lipscomb. Detectives Lipscomb and McAndrew had arrived at the

scene together in that vehicle, Detective Lipscomb driving and Detective McAndrew as the front

seat passenger. On the day before appellant’s arrest, Detective Lipscomb had cleaned out and

vacuumed the interior of the vehicle. He observed no clear plastic baggie of suspected heroin in the

vehicle at that time. Immediately prior to appellant’s arrest, Detective McAndrew had inspected the

passenger area and also observed no such baggie inside the vehicle. No person, save Detectives

Lipscomb and McAndrew, had access to the interior of the vehicle prior to appellant’s arrest, and

appellant was the first person placed in the vehicle since it had been cleaned and vacuumed.

       Subsequent laboratory analysis confirmed that the 16 individual capsules discovered in

Detective Lipscomb’s vehicle contained a total amount of 1.262 grams of heroin. The

Commonwealth presented, as a witness, Detective R.M. Holly, who testified as an expert in the use,

packaging, and distribution of narcotics. Having nine years of experience as a narcotics detective,

Detective Holly opined that the evidence was inconsistent with the personal use of heroin. He

explained that, “a[n] [individual] user is not going to carry [16] capsules [of heroin] around with

him” for personal use. Detective Holly testified that the street value of the heroin was

approximately $10 per capsule.




                                                 -3-
       Appellant made a motion to strike at the close of the Commonwealth’s evidence, arguing

that the Commonwealth had failed to prove the elements of possession and intent to distribute.1 The

trial court denied appellant’s motion, and convicted him of possession with intent to distribute

heroin, in violation of Code § 18.2-248.

       This appeal followed.

                                           II. ANALYSIS

       Appellant contends that the Commonwealth’s evidence was insufficient to sustain his

conviction for two reasons. First, he argues that the evidence was insufficient to prove that he

possessed the heroin found in Detective Lipscomb’s vehicle. Second, appellant argues that, even

assuming the Commonwealth proved that he possessed the heroin, the evidence was still

insufficient to prove that he intended to distribute it. We disagree.

       When a defendant challenges the sufficiency of the evidence on appeal, “we examine the

evidence in the light most favorable to the Commonwealth, granting to it all reasonable

inferences fairly deducible therefrom.” Jones v. Commonwealth, 23 Va. App. 93, 99, 474 S.E.2d

825, 828 (1996). “‘In so doing, we must . . . regard as true all the credible evidence favorable to

the Commonwealth and all fair inferences that may be drawn therefrom.’” Watkins v.

Commonwealth, 26 Va. App. 335, 348, 494 S.E.2d 859, 866 (1998) (quoting Cirios v.

Commonwealth, 7 Va. App. 292, 295, 373 S.E.2d 164, 165 (1988)). “The judgment of a trial

court sitting without a jury is entitled to the same weight as a jury verdict and will not be set

aside unless it appears from the evidence that the judgment is plainly wrong or without evidence

to support it.” Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987).

Furthermore, “the credibility of the witnesses and the weight accorded the evidence are matters


       1
         Specifically, appellant stated he intended to present no evidence at trial and, in making
his motion to strike, declared that the motion represented his first motion to strike, second
motion to strike, and closing argument “all wrapped up into one.”
                                                -4-
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).

       We first address appellant’s argument that the evidence was insufficient to prove that he

possessed the heroin found in Detective Lipscomb’s vehicle. In support of this argument, he

asserts that it “defies credulity” to infer from the evidence that he, while cuffed with his hands

behind his back and seated in the police vehicle, could remove heroin from the rear of his jeans

and toss it onto the floorboard directly behind his seat.

       “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). “The Commonwealth need not prove actual possession,

however.” Williams v. Commonwealth, 42 Va. App. 723, 735, 594 S.E.2d 305, 311 (2004).

Rather, the Commonwealth may prove constructive possession of an illicit substance. Maye v.

Commonwealth, 44 Va. App. 463, 483, 605 S.E.2d 353, 363 (2004).

       To support a conviction based on 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 or control.” Powers v. Commonwealth, 227

Va. 474, 476, 316 S.E.2d 739, 740 (1984). The defendant’s proximity to a controlled substance

is one factor that may be considered in determining constructive possession. Walton, 255 Va. at

426, 497 S.E.2d at 871-72. Constructive possession may be established by circumstantial

evidence provided that such evidence excludes every reasonable hypothesis of innocence that

flows from the evidence. See Tucker v. Commonwealth, 18 Va. App. 141, 143, 442 S.E.2d 419,




                                                -5-
420 (1994). “To resolve the issue, the Court must consider the totality of the circumstances

established by the evidence.” Williams, 42 Va. App. at 735, 594 S.E.2d at 311.

       Viewed in the light most favorable to the Commonwealth, the circumstantial evidence

presented by the Commonwealth proved that appellant was arrested after he was observed to

match a reliable informant’s description of a man possessing heroin in the rear of his jeans. He

was then cuffed with his hands behind his back, placed in the front passenger seat area of

Detective Lipscomb’s police vehicle, and warned not to discard the heroin from the rear of his

pants into the vehicle. The vehicle in which appellant was seated contained no heroin. Indeed,

the vehicle had been cleaned and vacuumed the day before by Detective Lipscomb, and he

observed no heroin at that time. Nor did Detective McAndrew observe heroin in the vehicle

upon his inspection immediately prior to appellant’s arrest. Appellant was the first person placed

in the vehicle since it had been cleaned, and the sole occupant of the vehicle at the time of his

arrest. No police personnel, save Detectives Lipscomb and McAndrew, had access to the interior

of the vehicle since it had been cleaned and vacuumed. Following appellant’s placement in the

vehicle, the detectives observed appellant moving his shoulders from side to side, “wiggling,”

and making other “movements.” Having made this observation, Detective McAndrew

immediately returned to the vehicle and discovered a clear plastic baggie of heroin. The baggie

was in plain view and “directly behind” appellant’s seat.

       Considering the totality of the circumstances, the trial court could fairly infer that

appellant was aware of the nature and presence of the heroin, that he exercised dominion and

control over the heroin, and that he was exclusively responsible for its presence in the rear of the

vehicle. The uncontroverted evidence excluded all reasonable hypotheses of his innocence, and,

therefore, we conclude that the evidence was sufficient to prove beyond a reasonable doubt that

appellant constructively possessed the heroin discovered in Detective Lipscomb’s vehicle.

                                                -6-
       We next address appellant’s claim that the evidence was insufficient to prove he intended

to distribute the heroin that he constructively possessed. To convict a defendant of possession

with intent to distribute an illegal substance, the Commonwealth must prove beyond a reasonable

doubt that the defendant intended to distribute the substance that he possessed. See Williams, 42

Va. App. at 737, 594 S.E.2d at 312. “Possession with intent to distribute is a crime which

requires ‘an act coupled with a specific intent.’” Dunbar v. Commonwealth, 29 Va. App. 387,

393, 512 S.E.2d 823, 826 (1999) (quoting Stanley v. Commonwealth, 12 Va. App. 867, 869, 407

S.E.2d 13, 15 (1991)). “Because direct proof of intent is often impossible, it must be shown by

circumstantial evidence.” Servis v. Commonwealth, 6 Va. App. 507, 524, 371 S.E.2d 156, 165

(1988). Circumstantial evidence of an accused’s intent includes “the quantity of the drugs

discovered [and] the packaging of the drugs.” Shackleford v. Commonwealth, 32 Va. App. 307,

327, 528 S.E.2d 123, 133 (2000), aff’d, 262 Va. 196, 547 S.E.2d 899 (2001). Possession of an

illegal substance in an amount exceeding that which is ordinarily possessed for personal use may

sufficiently establish a defendant’s intent to distribute that substance. Iglesias v.

Commonwealth, 7 Va. App. 93, 110, 372 S.E.2d 170, 180 (1988) (en banc). Expert testimonial

evidence may be considered in determining whether a defendant intended to distribute an illegal

substance. Davis v. Commonwealth, 12 Va. App. 728, 733, 406 S.E.2d 922, 925 (1991). “The

quantum of evidence necessary to prove an intent to distribute depends on the facts and

circumstances of each case.” Askew v. Commonwealth, 40 Va. App. 104, 110, 578 S.E.2d 58,

61 (2003).

       Viewed in the light most favorable to the Commonwealth, the circumstantial evidence

presented at trial proved that the police received a tip from an informant that a man was selling

heroin on the corner of Turnpike Road and Howard Street. The informant provided a description

of the man and disclosed that the man’s street name was “Yoshi.” Detectives Lipscomb and

                                                 -7-
McAndrew went to the intersection of Turnpike Road and Howard Street, observed appellant on

the corner matching the description of the seller given by the informant, and arrested him.

Appellant informed the detectives that his street name was “Yoshi.” Following the arrest, the

detectives discovered 1.262 grams of heroin in his constructive possession. The heroin consisted

of 16 individual capsules, valued at $10 per capsule, for a total value of $160. Detective Holly

testified at trial as an expert in the use, packaging, and distribution of narcotics, and opined that

appellant’s case was inconsistent with the personal use of heroin because “a[n] [individual] user is

not going to carry [16] capsules [of heroin] around with him” for personal use.

        We conclude that the trial court could fairly infer from this evidence that appellant intended

to distribute the unusual amount of capsules in his constructive possession.

                                         III. CONCLUSION

        Therefore, we hold that the evidence was sufficient to sustain appellant’s conviction of

possession with the intent to distribute heroin, in violation of Code § 18.2-248. Accordingly, we

affirm his conviction.

                                                                                               Affirmed.




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