                               COURT OF APPEALS OF VIRGINIA


Present: Judges Haley, Petty and Powell
Argued at Salem, Virginia


EARL LAMONT BOXLEY, SR.
                                                               MEMORANDUM OPINION * BY
v.     Record No. 0342-08-3                                      JUDGE CLEO E. POWELL
                                                                    MARCH 10, 2009
COMMONWEALTH OF VIRGINIA


                 FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG
                              Mosby G. Perrow, III, Judge

                 Keith Orgera, Assistant Public Defender (Office of the Public
                 Defender, on brief), for appellant.

                 Donald E. Jeffrey, III, Senior Assistant Attorney General (Robert F.
                 McDonnell, Attorney General, on brief), for appellee.


       Earl Lamont Boxley, Sr., appellant, was convicted of possession of cocaine, in violation of

Code § 18.2-250, possession of an imitation Schedule I or II drug with the intent to distribute, in

violation of Code § 18.2-248, and obstruction of justice, in violation of Code § 18.2-460. On

appeal, he argues that the trial court erred in denying appellant’s motion to suppress because the

police did not have probable cause to arrest him. Appellant further contends that even if the trial

court did not err in denying his motion to suppress, the evidence was insufficient to support a

conviction for possession of cocaine because the Commonwealth failed to prove that he knew the

nature and character of the substance and because the nexus between him and the recovered item

was inadequate. He also argues that the evidence was not sufficient to convict him of possession

of an imitation Schedule I or II controlled substance with the intent to distribute because the

Commonwealth’s evidence failed to prove that he intended to distribute the imitation drugs.

       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
Finally, appellant asserts that the evidence was insufficient to prove obstruction of justice

because he merely made the task more difficult for officers attempting to arrest him. We

disagree with appellant’s arguments and affirm his convictions.

                                        I. BACKGROUND

       During the afternoon on May 17, 2007, Captain H.W. Duff, an officer with fifteen years

experience and five years as a vice narcotics officer working undercover purchasing drugs,

responded to a report of a fight at a residence in Lynchburg. After responding initially, Captain

Duff left the scene and drove one block south and then walked to a spot approximately one to

two hundred feet from the residence. From his vantage point across the street hidden behind a

car, Captain Duff had an unobstructed view. Based on his experience, Captain Duff knew this

area “to be [an] open-air drug market area[], plus there are several drug houses in the area as well

where people come to purchase illicit narcotics.”

       After the uniformed officers left the area, Captain Duff saw Earl Lamont Boxley,

appellant, and an unidentified man moving furniture and bags of trash on the front porch of the

residence. Boxley left the front porch and searched in bushes in front of and to the left of the

porch. Captain Duff observed the unidentified man, who was on the porch, hand Boxley

“something that appeared to be white.” The captain could not tell what the small item was.

Boxley took the item from the unknown man, examined it briefly, and put it in his “right front

shorts pocket.” The men then stopped searching.

       Captain Duff then saw a Ford F150 pickup truck pull in front of the residence and saw

Boxley approach the passenger’s side. Captain Duff could not hear the conversation. He saw

Boxley reach into the truck and then remove his hand. The captain did not observe any

transaction. Boxley was at the truck for no more than two minutes.




                                                -2-
       After the truck left, Captain Duff saw Boxley remove “what appeared to be a rolling

paper from his right front pants pocket.” He saw Boxley crumble a substance between his index

finger and his thumb into the rolling paper. Boxley then rolled a “hand-rolled cigarette, [] licked

it,” and then smoked it. Captain Duff could not tell what the substance was, but he believed

from his experience that Boxley rolled a marijuana cigarette. He believed this because

“marijuana is typically clumped up plant material; and by crumbling it[,] it makes it smoother

and it fits into the rolling paper better. Those actions that I observed from him were consistent

with actions I’ve seen with people rolling marijuana cigarettes in the past.” Also, the captain had

previous encounters with Boxley and knew Boxley had a history with narcotics and firearms.

       Captain Duff called a fellow officer, Tim Clements, and told him what he saw. Captain

Duff told Officer Clements “that based on what [he] had seen [he] believed that [Boxley] was in

possession of cocaine and marijuana, and [he] called the officers to come up and investigate [his]

observations.” Officer Martin estimated that he and Officer Clements arrived on scene

approximately thirty seconds after receiving the information from Captain Duff.

       When the officers arrived, they saw a couple of men standing on the residence’s front

porch. Boxley was smoking a cigarette on the public sidewalk, just to the left of the porch. As

soon as the officers began to exit their car, Boxley ran to the porch. Officer Martin commanded

Boxley to stop. He was trying to open the door and enter the house when the officers detained

him. When Boxley ran to the porch, he had not yet tossed the cigarette, but he no longer had it

when he tried to open the front door with both hands.

       Captain Duff joined the struggle that ensued between Boxley and the arresting officers.

Boxley kicked his legs and appeared to be trying to roll over. He repeatedly tried to put his

hands in his pockets. During the incident, Officer Martin was cut.




                                               -3-
        After the officers restrained Boxley and stood him up, Captain Duff recovered a

hand-rolled cigarette lying on the porch right beside where Boxley was taken into custody.

When analyzed the cigarette was tobacco laced with cocaine. Captain Duff then searched

Boxley and removed a plastic bag containing several pieces of a white substance from Boxley’s

pocket. 1

        When Officer Martin removed the item from Boxley’s pocket, Boxley said, “[i]t’s fake,

it’s not real.” Boxley told the officers that he found the drugs on the porch and believed it

belonged to another man who was asleep inside the house. Boxley said that he planned to return

the bag to him. Later he said he intended to throw the bag away. Boxley denied selling drugs or

imitation drugs.

                                          II. ANALYSIS

                       A. DENIAL OF BOXLEY’S MOTION TO SUPPRESS

        When an appellant challenges the trial court’s denial of his motion to suppress, this Court

applies a de novo review to determinations of reasonable suspicion and probable cause. Ornelas

v. United States, 517 U.S. 690, 699 (1996). Boxley must demonstrate that the trial court’s denial

of his motion to suppress is reversible error when the evidence is viewed in the light most

favorable to the Commonwealth. McGee v. Commonwealth, 25 Va. App. 193, 197, 487 S.E.2d

259, 261 (1997) (en banc) (quoting Fore v. Commonwealth, 220 Va. 1007, 1010, 265 S.E.2d

729, 731 (1980)).

        “Probable cause does not require ‘an actual showing,’ but, rather, ‘only a probability or

substantial chance of criminal activity.’” Purdie v. Commonwealth, 36 Va. App. 178, 185, 549

S.E.2d 33, 37 (2001) (quoting Illinois v. Gates, 462 U.S. 213, 243 n.13 (1983)). We review the

“totality of the circumstances” to determine whether officers had probable cause to arrest.


        1
            The officers did not know how much the bag weighed.
                                               -4-
Yancey v. Commonwealth, 30 Va. App. 510, 516, 518 S.E.2d 325, 328 (1999). “Probable cause

exists when ‘there is a fair probability that contraband or evidence of a crime will be found in a

particular place.’” United States v. Grubbs, 547 U.S. 90, 95 (2006) (quoting Gates, 462 U.S. at

238).

        Here, officers encountered appellant in an area where people were known to buy and sell

drugs and Captain Duff knew that Boxley had a history with narcotics. The captain’s experience

led him to believe that appellant rolled a marijuana cigarette because he observed the appellant

remove “what appeared to be a rolling paper from his right front pants pocket” and crumble a

substance between his forefinger and thumb into the paper, which he rolled into a “hand-rolled

cigarette, [] licked it,” and smoked it. Captain Duff elaborated,

               Granted there are many people who smoke tobacco in rolling
               papers, they roll their own cigarettes; however, I have actually
               observed people hand-roll marijuana cigarettes.

                       The marijuana is typically clumped up plant material; and
               by crumbling it[,] it makes it smoother and it fits into the rolling
               paper better. Those actions that I observed from him were
               consistent with actions I’ve seen with people rolling marijuana
               cigarettes in the past.

Moreover, when the officers excited their vehicle, appellant ran. When they apprehended him on

the porch, he no longer had the cigarette.

        Recently, the Supreme Court of Virginia reiterated that the observation of a hand-rolled

cigarette is insufficient to provide probable cause to arrest. Buhrman v. Commonwealth, 275 Va.

501, 507-08, 659 S.E.2d 325, 329 (2008); see also Brown v. Commonwealth, 270 Va. 414,

420-21, 620 S.E.2d 760, 763 (2005). In Buhrman, an officer encountered the defendant in a

convenience store in a “high-drug” area. 275 Va. at 503, 659 S.E.2d at 326. The defendant

appeared to fall asleep while operating the frozen drink machine and while walking. Id. at

503-04, 659 S.E.2d at 326. The officer approached defendant and asked her for identification.

                                               -5-
Id. at 504, 659 S.E.2d at 326. The defendant complied and while she was getting the information

for the officer, the officer saw hand-rolled cigarettes in the door handle of defendant’s car. Id.

The officer believed the cigarettes contained marijuana and arrested defendant based on this

belief. Id. The Supreme Court of Virginia reversed defendant’s conviction and held that, in light

of the totality of the circumstances, the officer did not have probable cause. Id. at 507-08, 659

S.E.2d at 329.

       In Brown, an officer on patrol spotted Brown’s car parked in an alley in such a way that

emergency vehicles would be unable to pass. 270 Va. at 417, 620 S.E.2d at 761. As the officer

approached the vehicle, four men dispersed in different directions. Id. The officer found Brown

asleep in the car holding a “partially-burned, hand-rolled cigarette in one hand and a lighter in

the other.” Id. Boxley’s case differs significantly from Brown’s. In Brown, the only evidence

the officer had to rely on in support of probable cause was his experience with controlled

substances and his observation of a “partially-burned, hand-rolled cigarette” in Brown’s hand.

Id. at 419-20, 620 S.E.2d at 762-63.

       Notably, in Brown, the Supreme Court explained that

                 We have found that the requisite probable cause for a warrantless
                 search of a vehicle existed based on the police officer’s belief that
                 a hand-rolled cigarette held by a passenger contained marijuana
                 combined with the passenger’s actions in attempting to hide or get
                 rid of the hand-rolled cigarette. Hollis [v. Commonwealth], 216
                 Va. [874,] 877, 223 S.E.2d [887,] 889 [(1976)]. In Lawson v.
                 Commonwealth, 217 Va. 354, 355, 228 S.E.2d 685, 686 (1976),
                 the officer testified that he observed a yellow bag that “looked like
                 a ‘nickel bag of marijuana.’” We concluded that the totality of the
                 circumstances supported a finding of probable cause to arrest a
                 passenger in a vehicle because officers observed the driver and
                 passenger repeatedly pass the yellow bag between them and the
                 passenger locked the car door as the officers approached the car.
                 Id. at 357-58, 228 S.E.2d at 687.

270 Va. at 420, 620 S.E.2d at 763.



                                                 -6-
               These cases show that for the last 25 years, this Court has
               consistently declined to find that probable cause can be established
               solely on the observation of material which can be used for
               legitimate purposes, even though the experience of an officer
               indicates that such material is often used for illegitimate purposes.
               To support a finding of probable cause, such observations must be
               combined with some other circumstance indicating criminal
               activity. This requirement is consistent with that of many other
               jurisdictions that have considered the issue.

Id. at 420-21, 620 S.E.2d at 763.

       In this case, the officers observed much more than the officers had in either Buhrman or

Brown. Here, the officer actually observed Boxley crumble a plant material consistent with what

he had observed people do when rolling marijuana cigarettes. Importantly, here, not only did

Captain Duff observe Boxley forming the hand-rolled cigarette from what he believed to be

marijuana, but similar to the defendant in Hollis, throwing the cigarette on the floor and the

defendant in Lawson, locking the door and throwing the envelope on the floor. Boxley ran when

officers approached him and discarded the cigarette. In addition, Captain Duff was familiar with

Boxley and knew he had a history with narcotics. Here, therefore, consistent with our Supreme

Court’s decisions in Hollis, 216 Va. at 878, 223 S.E.2d at 890, and Lawson, 217 Va. at 358-59,

228 S.E.2d at 688, viewing the totality of the circumstances in the light most favorable to the

Commonwealth, the evidence was sufficient to arrest Boxley for possession of a controlled

substance, and all evidence subsequently recovered was properly admitted.

                             B. SUFFICIENCY OF THE EVIDENCE

       Upon an appellant’s challenge to the sufficiency of the evidence, we review the evidence

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

flow therefrom. Welch v. Commonwealth, 271 Va. 561, 558, 628 S.E.2d 340, 341 (2006). We

will affirm the trial court’s ruling unless it is plainly wrong or without evidence to support it.




                                                 -7-
Jordan v. Commonwealth, 273 Va. 639, 645, 643 S.E.2d 166, 169-70 (2007) (citing Code

§ 8.01-680).

                                1. OBSTRUCTION OF JUSTICE

                       “To constitute obstruction of justice of an officer in the
               performance of his duty, it is not necessary that there be an actual
               or technical assault upon the officer, but there must be acts clearly
               indicating an intention on the part of the accused to prevent the
               officer from performing his duty, as to ‘obstruct’ ordinarily implies
               opposition or resistance by direct action and forcible or threatened
               means. It means to obstruct the officer himself not merely to
               oppose or impede the process with which the officer is armed.” 2

Id. at 648, 643 S.E.2d at 171 (quoting Jones v. Commonwealth, 141 Va. 471, 478-79, 126 S.E.

74, 77 (1925)). “[O]bstruction of justice does not occur when a person fails to cooperate fully

with an officer or when the person’s conduct merely renders the officer’s task more difficult but

does not impede or prevent the officer from performing that task.” Ruckman v. Commonwealth,

28 Va. App. 428, 429, 505 S.E.2d 388, 389 (1998).

       Here, Boxley ran from the officers. He twisted away from officers and repeatedly tried to

put his hands in his pockets. Boxley also kicked his legs as officers tried to arrest him. His

kicking motions, combined with his other actions to avoid arrest, constituted more than “fail[ure]

to cooperate fully” or “render[ing] the officer’s task more difficult.” Id. Boxley’s actions clearly

impeded the officers’ efforts to arrest him. Thus, the evidence was sufficient to support his

conviction for obstruction of justice.




       2
         Though Boxley’s sentencing order does not indicate under which subsection of Code
§ 18.2-460 he was convicted, his indictment indicates that he was charged with violating Code
§ 18.2-460(C), and therefore we will consider his arguments and the evidence as it pertains to
that subsection.


                                               -8-
                     2. POSSESSION OF A CONTROLLED SUBSTANCE

       Constructive possession may be demonstrated by showing that the illegal substance was

known to the accused and was subject to his dominion and control. Eckhart v. Commonwealth,

222 Va. 447, 450, 281 S.E.2d 853, 855 (1981). “Knowledge of the presence and character of the

controlled substance may be shown by evidence of acts, statements, or conduct of the accused.”

Id. “Other circumstantial evidence may also support a finding of a defendant’s knowledge of the

nature and character of the substance in his possession, such as the drug’s distinctive odor or

appearance, or statements or conduct of others in his presence that would tend to identify it.”

Young v. Commonwealth, 275 Va. 587, 591, 659 S.E.2d 308, 310 (2008).

       Appellant first argues that the evidence is insufficient to support his conviction for

possession of a controlled substance because the Commonwealth failed to establish a sufficient

nexus between him and the illegal drugs. Though mere proximity cannot establish possession, it

is a factor to be considered by the fact finder. Lane v. Commonwealth, 223 Va. 713, 716, 292

S.E.2d 358, 360 (1982). Here, Boxley stood on the sidewalk smoking a hand-rolled cigarette.

As officers approached him, he ran to the nearby porch. When he reached the front door, he no

longer had the cigarette. An officer found the cigarette nearby on the porch. Though other men

stood on the porch, the officers did not see any of them smoking anything. Thus, the evidence

was sufficient to prove that the illegal substances in the hand-rolled cigarette were subject to

Boxley’s dominion and control.

       Boxley further contends that there is no evidence that he was aware of the nature and

character of the illegal drugs in the hand-rolled cigarette. “‘The Commonwealth must also

establish that the defendant intentionally and consciously possessed it with knowledge of its

nature and character.’ That knowledge is an essential element of the crime.” Young, 275 Va. at

591, 659 S.E.2d at 310 (citations omitted). The evidence proved that Captain Duff observed

                                                -9-
Boxley remove plant material from his pants pocket, crumble it up, roll it into a hand-rolled

cigarette, and smoke it. Further, after the officers recovered the imitation crack cocaine from

Boxley, he explained to the officers that he knew the imitation drug was “fake” when he tasted it,

because it did not “numb [his] tongue.” Therefore, Boxley was obviously aware of the effect

cocaine has on one’s tongue. His spontaneous statement belies his claim that he was unaware of

the nature and character of the illegal drugs in the hand-rolled cigarette that he was smoking as

that cigarette contained cocaine. From that statement and the contents of the hand-rolled

cigarette, the fact finder could reasonably conclude Boxley knew the cigarette that he hand rolled

contained cocaine. Moreover, when officers approached him as he smoked this cigarette, he

fled. This evidence enabled the fact finder to conclude that Boxley was aware of the illegal

nature and character of the substance that he smoked, and, therefore, the evidence was sufficient

to support Boxley’s conviction.

            3. POSSESSION OF AN IMITIATION CONTROLLED SUBSTANCE
                        WITH THE INTENT TO DISTRIBUTE

       Boxley also challenges the sufficiency of the evidence to support his conviction for

possession of an imitation controlled substance with the intent to distribute. A court may

consider several factors as probative evidence of intent to distribute a controlled substance,

including “the quantity of the drugs seized, the manner in which they are packaged, and the

presence of an unusual amount of cash, equipment related to drug distribution, or firearms.”

McCain v. Commonwealth, 261 Va. 483, 493, 545 S.E.2d 541, 547 (2001). The Commonwealth

may rely on circumstantial evidence to prove that a defendant intended to distribute illegal drugs

while simultaneously possessing them. Christian v. Commonwealth, 33 Va. App. 704, 716, 536

S.E.2d 477, 483 (2000). “The Commonwealth need only exclude those hypotheses of innocence

that flow from the evidence, not those that spring from the imagination of the defendant.”



                                               - 10 -
        Here, Boxley admitted that he knew that the drugs seized from his pocket were not real.

He denied selling narcotics and claimed that he planned to return the imitation drugs to their

rightful owner. Later, he stated that he intended to throw the imitation drugs away. Boxley

could not explain, however, why he had not already returned or otherwise disposed of the illegal

drugs, despite knowing that they were not real. “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 v. Commonwealth, 26 Va. App. 763, 774, 497 S.E.2d 150, 155 (1998)

(citations omitted). In convicting Boxley of possession of an imitation controlled substance with

the intent to distribute, the trial court, acting as the fact finder, disregarded Boxley’s claim that

he was going to return the imitation drugs or throw them away. His continued possession of the

imitation drugs after learning they were not real and having had opportunities to dispose of them

supports the trial court’s finding that Boxley intended to distribute the imitation drugs and,

therefore, the evidence is sufficient to support his conviction.

                                         III. CONCLUSION

        For the foregoing reasons, we find that the police had probable cause to arrest Boxley for

possession of a controlled substance and, therefore, the trial court did not err in denying his motion

to suppress. We also find that the evidence was sufficient to prove that he possessed a controlled

substance, possessed an imitation controlled substance with the intent to distribute, and obstructed

justice. Therefore, we affirm each of Boxley’s convictions.

                                                                                             Affirmed.




                                                 - 11 -
