                               COURT OF APPEALS OF VIRGINIA


Present: Judges Frank, McClanahan and Senior Judge Coleman
Argued at Richmond, Virginia


ROBERT LEE WILLIAMS, JR.
                                                           MEMORANDUM OPINION∗ BY
v.     Record No. 1842-02-2                             JUDGE ELIZABETH A. McCLANAHAN
                                                               DECEMBER 30, 2003
COMMONWEALTH OF VIRGINIA


                FROM THE CIRCUIT COURT OF THE CITY OF PETERSBURG
                              Pamela S. Baskervill, Judge

                 Mary K. Martin (Eliades & Eliades, on brief), for appellant.

                 Leah A. Darron, Assistant Attorney General (Jerry W. Kilgore,
                 Attorney General, on brief), for appellee.


       Robert Lee Williams, Jr. (Williams) appeals convictions for possession with intent to

distribute marijuana and conspiracy to distribute more than one-half ounce, but less than five

pounds of marijuana, in violation of Code §§ 18.2-248.1 and 18.2-256. Williams contends that

the trial court erred in (1) denying a motion to suppress the evidence, and (2) finding that the

evidence was sufficient to sustain convictions for possession with intent to distribute marijuana

and conspiracy to distribute marijuana. For the reasons that follow, we affirm the trial court.

                                           I. Background

       On October 19, 2001, City of Petersburg police conducted a narcotics surveillance

operation at 1235 Halifax Street in Petersburg, the home of Williams’ father. Williams did not

live at the house, but was a frequent guest. Williams and codefendant Baron Brown (Brown)

were observed outside the residence along with five or six other people.



       ∗
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
       From a distance of approximately twenty-five feet, a detective watched Williams walk

from the front of the house to the porch at the side of the house. Williams was then observed

sitting on the side porch with a brown paper bag that he had removed from inside a tin container.

He was removing marijuana from the paper bag, and placing it into several (nine to ten), smaller,

clear plastic bags. After filling the small plastic bags, Williams was seen placing them into a

small paper bag, which he enclosed in the tin container along with the larger paper bag filled

with marijuana. Williams then placed the tin container into a city trash can that was located near

the porch, entered the house through the rear door, and re-emerged on the front porch.

       During and after the time Williams was dividing the marijuana on the side porch, Brown

was observed in front of the residence, engaging in hand-to-hand transactions with passersby that

the detectives testified, based on their experience and training, were drug sales. Brown was then

observed walking to the side porch, opening the same trash can, retrieving the same tin container

with the paper bag of marijuana, and bagging the marijuana into smaller clear plastic bags, in the

same manner as Williams. Williams was not observed engaging in any hand-to-hand

transactions.

       Brown walked to the front yard with the large paper bag containing the marijuana and

showed it to Williams, who then was sitting in the passenger seat of a vehicle. Williams and

Brown were observed conversing. Brown then walked back to the side of the house and replaced

the bag in the trash can. Williams left in the vehicle.

       At that point, three detectives moved toward the house and detained Brown and the other

five or six people present at the residence. While they conducted a protective sweep of the area,

two of the police pursued Williams, and one pursued Williams’ father, who had left the residence

while it was under surveillance. Another officer was dispatched to obtain a search warrant.

Testimony at trial revealed that the events proceeded very quickly. Two of the people at the

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residence fled inside the house, while one was seen standing next to the trash can, smoking a

marijuana cigarette. One of the detectives went to the side of the house, arrested the person

standing there and seized the evidence in the trash can. The detective then locked the evidence

in his car. Very shortly thereafter, the two persons who had entered the residence were caught

running out the rear door.

       Subsequently, Williams was arrested and advised of his Miranda rights. He admitted to

police that he had bagged at least nine bags of marijuana and put them in the trash can. Williams

also told the detective that the marijuana in the trash can was not his.

       Williams moved to suppress the marijuana evidence, contending that it was illegally

seized without a warrant. The trial court denied the motion. It found that events transpired very

quickly, that exigent circumstances supported a warrantless seizure, and that Williams did not

have standing to challenge the search because he relinquished, disclaimed and abandoned the

property and had no expectation of privacy in the city trash can at his father’s residence.

       At trial, Williams argued that the evidence was insufficient to prove intent or conspiracy

to distribute the marijuana. The trial court found that the totality of the circumstances and

evidence supported a conviction of guilt with respect to intent and conspiracy to distribute.

                                            II. Analysis

                                      A. Motion to Suppress

       On appeal from a denial of a suppression motion, we examine the evidence in the light

most favorable to the Commonwealth, giving it the benefit of any reasonable inferences. Bass v.

Commonwealth, 259 Va. 470, 475, 525 S.E.2d 921, 924 (2000); Sabo v. Commonwealth, 38

Va. App. 63, 69, 561 S.E.2d 761, 764 (2002). In reviewing a trial court’s denial of a motion to

suppress, the burden is upon the appellant to show that the ruling constituted reversible error.

McGee v. Commonwealth, 25 Va. App. 193, 197, 487 S.E.2d 259, 261 (1997) (en banc) (citing

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Ornelas v. United States, 517 U.S. 690, 699 (1996)). “‘Ultimate questions of reasonable

suspicion and probable cause to make a warrantless search’ involve questions of both law and

fact and are reviewed de novo on appeal.” Id. (quoting Ornelas, 517 U.S. at 691). However, “we

are bound by the trial court’s findings of historical fact unless ‘plainly wrong’ or without

evidence to support them and we give due weight to the inferences drawn from those facts by

resident judges and local law enforcement officers.” McGee, 25 Va. App. at 198, 487 S.E.2d at

261 (citing Ornelas, 517 U.S. at 699). Here, accepting the facts as found by the trial judge, we

hold that the evidence was lawfully seized.

       The Fourth Amendment provides against unreasonable searches and seizures. It “does

not proscribe all seizures, only those that are ‘unreasonable.’” Hodnett v. Commonwealth, 32

Va. App. 684, 690, 530 S.E.2d 433, 436 (2000) (quoting Welshman v. Commonwealth, 28

Va. App. 20, 30, 502 S.E.2d 122, 126-27 (1998) (en banc)); see also Hamlin v. Commonwealth,

33 Va. App. 494, 499, 534 S.E.2d 363, 365 (2000). From a public street, approximately

twenty-five feet from the residence, the officer saw Williams and Brown separately package

marijuana. An officer’s observation of what is taking place in public view “generally involves

no Fourth Amendment search . . . .” Texas v. Brown, 460 U.S. 730, 739 (1983). Under the

Fourth Amendment, police do not need justification to access property when it is left in a public

place. Id. at 738 n.4. Thus, the initial observation of the defendant’s public activities did not

intrude upon any protected right of privacy under the Fourth Amendment.

       As to the warrantless seizure of marijuana, we find no violation of Williams’ Fourth

Amendment rights. During and after the time Williams was dividing the marijuana on the side

porch, Brown was observed in front of the residence, engaging in hand-to-hand transactions with

passersby that the detectives testified, based on their experience and training, were drug sales.

Brown was then observed walking to the side porch, opening the same trash can, retrieving the

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same tin container with the paper bag of marijuana, and bagging the marijuana into smaller clear

plastic bags, in the same manner as Williams. Testimony at trial revealed that when the police

moved in to stop the drug sales and arrest Williams and Brown, the events proceeded very

quickly. Two of the people at the residence fled inside the house, while one was seen standing

next to the trash can, smoking a marijuana cigarette. One of the detectives went to the side of the

house, arrested the person standing there and seized the evidence in the trash can. The detective

then locked the evidence in his car. Very shortly thereafter, the two persons who entered the

residence were caught running out the rear door.

       Under these facts, the officers were armed with probable cause to arrest defendant and

seize the marijuana. There was no need to obtain an arrest or search warrant because the police

faced exigent circumstances such that the person standing next to the trash can or the two

persons fleeing out the back door could have attempted to destroy the marijuana. Exigent

circumstances justify a warrantless search or seizure when “the police have probable cause to

obtain a search warrant but, due to the nature of the situation, are precluded from doing so.”

Servis v. Commonwealth, 6 Va. App. 507, 514-15, 371 S.E.2d 156, 159 (1988). Seizing and

securing the marijuana at this point was not only constitutionally permissible, it was proper

police procedure. Accordingly, we affirm the trial court’s ruling on the motion to suppress.

                                 B. Sufficiency of the Evidence

       When the sufficiency of the evidence is challenged on appeal, we review the evidence “in

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

deducible therefrom.” Bright v. Commonwealth, 4 Va. App. 248, 250, 356 S.E.2d 443, 444

(1987). “‘In so doing, we must discard the evidence of the accused in conflict with that of the

Commonwealth, and 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,

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348, 494 S.E.2d 859, 866 (1998) (quoting Cirios v. Commonwealth, 7 Va. App. 292, 295, 373

S.E.2d 164, 165 (1988)).

        When considering on appeal the sufficiency of the evidence presented below, we

“presume the judgment of the trial court to be correct” and reverse only if the trial court’s

decision is “plainly wrong or without evidence to support it.” Davis v. Commonwealth, 39

Va. App. 96, 99, 570 S.E.2d 875, 876-77 (2002) (citations omitted); see also McGee, 25 Va. App

at 197-98, 487 S.E.2d at 261. Thus, we do not “substitute our judgment for that of the trier of

fact.” Wactor v. Commonwealth, 38 Va. App. 375, 380, 564 S.E.2d 160, 162 (2002). “Instead,

the relevant question is whether, after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). “This familiar

standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the

testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate

facts.” Id.

        Code § 18.2-248.1 provides that “it shall be unlawful for any person to sell, give,

distribute or possess with intent to sell, give or distribute marijuana.” To prove possession with

intent to distribute where a case is lacking direct evidence of drug distribution, intent must be

shown by circumstantial evidence. Servis, 6 Va. App. at 524, 371 S.E.2d at 165.

“Circumstantial proof of a defendant’s intent includes the quantity of the drugs discovered, the

packaging of the drugs, and the presence or absence of drug paraphernalia.” Shackleford v.

Commonwealth, 32 Va. App. 307, 327, 528 S.E.2d 123, 133 (2000) (citations omitted), aff’d,

262 Va. 196, 547 S.E.2d 899 (2001).

        “Circumstantial evidence is not viewed in isolation.” Commonwealth v. Hudson, 265

Va. 505, 514, 578 S.E.2d 781, 786 (2003); see also Stamper v. Commonwealth, 220 Va. 260,

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273, 257 S.E.2d 808, 818 (1979); Karnes v. Commonwealth, 125 Va. 758, 764, 99 S.E. 562, 564

(1919); Pease v. Commonwealth, 39 Va. App. 342, 360, 573 S.E.2d 272, 280 (2002) (citing Derr

v. Commonwealth, 242 Va. 413, 425, 410 S.E.2d 662, 669 (1991)). “‘While no single piece of

evidence may be sufficient, the “combined force of many concurrent and related circumstances,

each insufficient in itself, may lead a reasonable mind irresistibly to a conclusion.”’” Id. at 360,

573 S.E.2d at 280-81 (quoting Derr, 242 Va. at 425, 410 S.E.2d at 669). On this basis, and

viewing the evidence in the light most favorable to the Commonwealth, we find no error in the

trial court’s determination that the Commonwealth’s evidence proved the essential elements of

the crimes at issue beyond a reasonable doubt.

       Here, Williams was observed packaging marijuana from a large bag into numerous

smaller clear bags. Brown was also seen repackaging marijuana from the same source in a

similar manner and selling it to passersby. Williams was present during the observed sales. He

also admitted to repackaging the marijuana. Even though he claimed that the marijuana in the

trash can was not his, the trial court was entitled to reject that evidence as an attempt to conceal

guilt. Carter v. Commonwealth, 223 Va. 528, 532, 290 S.E.2d 865, 867 (1982) (citing Black v.

Commonwealth, 222 Va. 838, 842, 284 S.E.2d 608, 610 (1981)). Accordingly, we find that the

evidence was sufficient to support the trial court’s determination of guilt beyond a reasonable

doubt that Williams possessed marijuana with the intent to distribute it.

       Conspiracy to distribute marijuana based on Code § 18.2-256 requires “‘an agreement

between two or more persons by some concerted action to commit an offense.’” Wright v.

Commonwealth, 224 Va. 502, 505, 297 S.E.2d 711, 713 (1982) (quoting Falden v.

Commonwealth, 167 Va. 542, 544, 189 S.E. 326, 327 (1937)). Proof of the agreement may be

made by circumstantial evidence. Id. “[A] common purpose and plan may be inferred from a

‘development and collocation of circumstances.’” United States v. Godel, 361 F.2d 21, 23 (4th

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Cir. 1966) (quoting Glasser v. United States, 315 U.S. 60, 80 (1942)); see also McQuinn v

Commonwealth, 19 Va. App. 418, 425, 451 S.E.2d 704, 708 (1994) aff’d en banc, 20 Va. App.

753, 460 S.E.2d 624 (1995). In fact, conspiracy “often may be established only by indirect and

circumstantial evidence.” Floyd v. Commonwealth, 219 Va. 575, 580, 249 S.E.2d 171, 174

(1978).

                          Where, as here, it has been shown that the defendants “by
                 their acts pursued the same object, one performing one part and the
                 others performing another part so as to complete it or with a view
                 to its attainment, the [fact finder] will be justified in concluding
                 that they were engaged in a conspiracy to effect that object.”

Brown v. Commonwealth, 10 Va. App. 73, 78, 390 S.E.2d 386, 388 (1990) (quoting Amato v.

Commonwealth, 3 Va. App. 544, 552, 352 S.E.2d 4, 9 (1987)). Williams and Brown were each

observed, within minutes of each other, packaging marijuana from the same bag into similar

small clear bags. Williams was present while Brown conducted hand-to-hand sales of drugs at

the front of the residence. Williams and Brown were also observed conversing while Brown

showed Williams the bag of marijuana from which they had both been seen packaging quantities

into small bags. Accordingly, we find that the evidence was sufficient to support the trial court’s

determination of guilt beyond a reasonable doubt that Williams conspired with Brown to

distribute marijuana.

                                           III. Conclusion

          We conclude that the trial court did not err in denying Williams’ motion to suppress the

evidence, and did not err in finding that the evidence was sufficient to sustain convictions for

both possession with intent to distribute marijuana and conspiracy to distribute marijuana.

Therefore, we affirm the convictions.

                                                                                         Affirmed.




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