Jamar Duane Clarke v CW and City of Hampton

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COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Willis and Annunziata Argued at Chesapeake, Virginia
JAMAR DUANE CLARKE
v. Record No. 0425-99-1
COMMONWEALTH OF VIRGINIA AND CITY OF HAMPTON
OPINION BY JUDGE ROSEMARIE ANNUNZIATA APRIL 25, 2000
FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON Christopher W. Hutton, Judge
Charles E. Haden for appellant.
Michael T. Judge, Assistant Attorney General (Mark L. Earley, Attorney General, on brief) , for appellees.
The appellant, Jamar Duane Clarke, contends: 1) the trial court erred in denying his motions to suppress evidence concerning three distinct incidents; and 2) the trial court erred in finding the evidence sufficient to convict Clarke of the charged offenses arising from the March 12, 1998 and April 30, 1998 incidents. We find that the trial court correctly denied Clarke's motions to suppress, and we find the evidence sufficient to support his convictions. Accordingly, we affirm the decision of the trial court.

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INCIDENT OF SEPTEMBER 6, 1997
Facts
On September 6, 1997, at approximately 12:30 a.m., Officer
Christopher McIntire of the Hampton City Police encountered
Clarke while Officer McIntire was investigating loud music being
played in violation of a city ordinance. 	Officer McIntire, who
was on uniformed bicycle patrol, determined the source of the
music to be a van parked in the yard of a house located at the
intersection of Lombard Street and Shell Road. 	He observed
three men and one woman standing near the vehicle. 	When Officer
McIntire approached the intersection, the four individuals near
the van saw him and immediately separated and began to walk
away. 	One of the van's doors stood ajar. 	When Officer McIntire
approached it, he observed that the keys remained inside. 	The
music emanated from the van's radio. 	McIntire and other
officers on patrol with him decided to question the four
individuals in regard to the loud music and in order to
determine whether the van might be stolen. 	McIntire cited as
grounds for reasonable suspicion on the latter point the
careless manner in which the four persons abandoned the vehicle.
McIntire intercepted Clarke before Clarke was able to leave
the immediate vicinity of the van. 	McIntire identified himself
as a police officer and asked to speak to Clarke. 	McIntire
detected the odor of alcohol on Clarke's breath and person. 	He

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also noticed that Clarke's eyes were bloodshot and observed that
Clarke's voice rose and dropped in pitch and volume, leading him
to believe Clarke was intoxicated. 	When McIntire asked Clarke
to identify himself, Clarke gave a false name and refused to
provide an address. 	McIntire decided to place Clarke under
arrest for public drunkenness. 	When he reached for Clarke's
left arm to place a handcuff on it, Clarke began to yell loudly
and to physically resist the arrest. 	Sergeant Lewis, also of
the Hampton City Police, was on patrol with Officer McIntire.
When Lewis saw Clarke resisting arrest, he dismounted his
bicycle and came to McIntire's assistance. 	Together the two
officers subdued Clarke and placed him in handcuffs.
Upon cuffing Clarke, the officers searched Clarke incident
to arrest to check for weapons. 	They discovered a handgun
secreted in Clarke's clothing. 	Clarke again became disorderly,
and the officers ultimately decided to place him in leg
restraints, called "kick stops," to prevent Clarke from
attempting to kick windows out of the patrol car in which he was
placed.
Based on the above-stated course of events, Clarke was
charged with carrying a concealed weapon, second or subsequent
offense, and with resisting arrest. 	He was convicted of both
charges in a bench trial on November 12, 1998.

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Analysis
In appealing a denial of a motion to suppress evidence
deriving from an illegal search without a warrant, an appellant
must prove that the warrantless search violated his or her
Fourth Amendment rights. 	See Fore v. Commonwealth, 220 Va.
1007, 1010, 265 S.E.2d 729, 731, cert. denied, 449 U.S. 1017
(1980). 	Generally, an officer may make a warrantless arrest if
he or she has probable cause to believe that the arrestee has
committed a crime. 	See Thompson v. Commonwealth, 10 Va. App.
117, 121, 390 S.E.2d 198, 201 (1990) (citing United States v.
Watson, 423 U.S. 411, 423 (1976)). 	An officer may search the
arrestee incident to such lawful arrest. 	See DePriest v.
Commonwealth, 4 Va. App. 577, 583, 359 S.E.2d 540, 543 (1987)
(citing Illinois v. Lafayette, 462 U.S. 640, 646 (1983)). 	If
the officer lacked probable cause to arrest, however, any
evidence seized pursuant to the arrest will be excluded from
trial. 	See Lugar v. Commonwealth, 214 Va. 609, 611, 202 S.E.2d
894, 897 (1974).
In appropriate circumstances, an officer, lacking probable
cause to arrest, may nevertheless approach a person he or she
suspects of being engaged in criminal activity to investigate
such activity. 	See Baldwin v. Commonwealth, 243 Va. 191, 195,
413 S.E.2d 645, 647 (1992) (citing Terry v. Ohio, 392 U.S. 1
(1968)). 	An officer may detain a person in a "Terry stop" if

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the officer possesses articulable facts supporting a reasonable
suspicion that a person has committed a criminal offense, is
engaging in one, or is about to engage in one. 	See Terry, 392
U.S. at 22. 	In determining whether an officer had a
particularized and objective basis for suspecting a person of
criminal activity, a court must consider the totality of the
circumstances. 	See United States v. Cortez, 449 U.S. 411,
417-18 (1981); Ewell v. Commonwealth, 254 Va. 214, 217, 491
S.E.2d 721, 722-23 (1997). 	The test for reasonable suspicion
under Terry is less stringent than the test for probable cause.
Reasonable suspicion can be established with information
different in quantity or content than that required to establish
probable cause. 	Reasonable suspicion differs from probable
cause "also in the sense that reasonable suspicion can arise
from information that is less reliable than that required to
show probable cause." 	Washington v. Commonwealth, 29 Va. App.
5, 12, 509 S.E.2d 512, 515 (1999) (quoting Alabama v. White, 496
U.S. 325, 330 (1990)).
The subjective intent of a police officer in making a stop
is irrelevant. 	If the officer had probable cause to arrest or
reasonable suspicion to conduct a Terry stop, evidence of
criminal activity arising from the detention may be admitted
against the defendant. 	See Glasco v. Commonwealth, 257 Va. 433,

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448, 513 S.E.2d 137, 146 (1999) (citing Whren v. United States,
517 U.S. 806, 813 (1996)).
Officer McIntire testified that he heard loud music before
he observed Clarke and others standing near the van. 	Because
the Hampton ordinance makes the playing of loud music after
10:00 p.m. a misdemeanor offense, McIntire had reasonable
suspicion, if not probable cause, to believe that a crime was
being committed and that the four persons near the van were
involved. 	At a minimum, McIntire had lawful grounds to detain1
Clarke briefly while McIntire investigated the incident
involving the van. 	In the course of questioning Clarke
concerning the music and the van, McIntire detected the odor of
alcohol on Clarke, observed his bloodshot eyes, and noted his
erratic speech. 	These observations provided probable cause to
arrest Clarke for public drunkenness. 	During the struggle with
Clarke to subdue him, McIntire and another officer found a
concealed weapon secreted on Clarke's person. 	Because
"incriminating property lawfully seized during [a] warrantless
search incident to arrest may be introduced in evidence,"
Commonwealth v. Brunson, 248 Va. 347, 357, 448 S.E.2d 393, 399
(1994), we find no error and affirm Clarke's concealed weapon
conviction arising from the September 6, 1997 arrest. 	As Clarke
1 We assume, without deciding, that McIntire's initial
contact with Clarke constituted a Terry stop.

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physically resisted a lawful arrest, we likewise affirm his
conviction on that charge.
INCIDENT OF MARCH 12, 1998
Facts
At approximately 3:00 a.m. on March 12, 1998, Officer
Richard Sypher of the Hampton police was patrolling Shell Road
in the City of Hampton. 	He observed three persons standing in
the middle of the roadway, partly obscured by the shadow from a
tree. 	Although he testified that these persons were not
impeding traffic, Officer Sypher decided to investigate. 	When
he turned his patrol car around and approached the persons, they
separated. 	One of them, Clarke, got into a red two-door coupe
bearing temporary license tags. 	Officer Sypher testified that,
as he pulled up behind the vehicle, he thought the tags listed
"March 10, 1998" as their expiration date. 	Because that date
indicated they had expired, Sypher activated his emergency
lights and ordered the vehicle to stop. 	Clarke complied with
Officer Sypher's signal and stopped his car.
Officer Sypher parked his patrol car. 	As Sypher was
rummaging for his flashlight, Clarke debarked his vehicle,
turned, and faced Sypher's patrol car. 	As Sypher was about to
speak to him, Clarke turned again and fled on foot. 	Sypher
chased him some distance through a maze of residential privacy
fences in an area bounded by Powhatan Parkway and Teach Street.

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As Sypher chased Clarke across Powhatan Parkway, he observed
Clarke lifting his jacket and reaching for something secured in
his waistband. 	As the two men approached a six-foot high
privacy fence, Clarke threw the object he had removed from his
waistband over the fence. 	At that point, Sypher ordered Clarke
to lie flat upon the ground. 	Officer Sypher could only identify
the object he had seen Clarke throw as a bundle roughly eight
inches in length, "a fairly large object."
As in the incident of September 6, 1997, Clarke resisted
Officer Sypher's efforts to place him in custody. 	Two other
officers arrived on the scene and helped Sypher subdue Clarke.
Once Clarke was in custody, Officer Sypher investigated the
other side of the privacy fence. 	He found a loaded handgun
embedded in the soft, recently graded dirt on that side of the
fence, with no other objects or debris nearby. 	Although the
ground was covered with frost, there was none on the gun. 	The
gun was covered with fresh droplets of blood. 	When Sypher
returned to his patrol car, he found that Clarke had open cuts
on his fingers and knuckles.
Officer Sypher testified at trial that, soon after
apprehending Clarke, he noticed that the expiry date on Clarke's
license tags was actually March 16, 1998. 	He testified that the
"6" was written in such a manner that he had mistaken it for a
"0."

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Based on the course of events outlined above, Clarke was
charged with resisting arrest and possession of a concealed
weapon, third or subsequent offense. 	He was convicted of both
charges in a bench trial on November 12, 1998.
Analysis
We have previously stated the applicable standard of review
for an appeal of a denied motion to suppress, and the law
governing warrantless arrests and Terry stops. 	The facts of the
March 12, 1998 incident raise additional questions of law,
however.
The basis of Clarke's claim with respect to the events of
March 12, 1998, is that he was unlawfully seized and searched by
Officer Sypher because Sypher misread the date on the license
plate. 	As a consequence, Clarke contends the evidence of the
handgun should have been excluded from trial and all charges
against him dismissed. 	The Commonwealth contends that Clarke
was not seized within the meaning of the Fourth and Fourteenth
Amendments until Officer Sypher physically apprehended him. 	For
the reasons that follow, we affirm Clarke's convictions.
We have held that when a police officer signals a motorist
with his flashing lights, a reasonable motorist would conclude
that he must comply with the officer's authority and stop, and
such a stop constitutes a Fourth Amendment seizure. 	See Barrett
v. Commonwealth, 18 Va. App. 773, 775, 447 S.E.2d 243, 245

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(1994) (en banc), reversed on other grounds, 250 Va. 243, 462
S.E.2d 109 (1995). 	However, the United States Supreme Court has
held that a person's belief, following a police officer's show
of authority, that he is not free to leave the scene, does not
in itself render the person seized; he also must comply, or be
made to comply, with the show of authority before a seizure
occurs. 	See California v. Hodari D., 499 U.S. 621, 626 (1991).
"While we review de novo ultimate questions of reasonable
suspicion and probable cause, we 'review findings of historical
fact only for clear error . . . and give due weight to
inferences drawn from those facts by resident judges and local
law enforcement officers.'" 	Ramos v. Commonwealth, 30 Va. App.
365, 368, 516 S.E.2d 737, 739 (1999) (quoting Ornelas v. United
States, 517 U.S. 690, 699 (1996)). 	Officer Sypher ordered
Clarke to stop his car in order to investigate the date on
Clarke's license plate, which appeared to indicate the plates
had expired. 	We find no clear error in the trial court's
conclusion that Sypher ordered Clarke to stop based on his
observation of the plate, and we accordingly affirm that
finding. 	Additionally, we agree with the trial court that
Sypher's suspicion, based upon his observation, was reasonable.
It was based upon this reasonable suspicion that Sypher ordered
Clarke to pull over.

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Clarke responded to Officer Sypher's signal by stopping his
vehicle; consequently, Clarke was "seized" as a result of his
compliance with Officer Sypher's show of authority. 	See Hodari
D., 499 U.S. at 626; Barrett, 18 Va. App. at 775, 447 S.E.2d at
245. 	We have previously equated routine traffic stops with
Terry stops. 	See Stroud v. Commonwealth, 6 Va. App. 633, 637,
370 S.E.2d 721, 723 (1988) (citing Berkemer v. McCarty, 468 U.S.
420, 439-40 (1984)). 	"By its very nature . . . a Terry stop is
involuntary, and the suspect is not free to avoid it by flight."
United States v. Haye, 825 F.2d 32, 35 (4th Cir. 1987); cf. Code
§ 19.2-77 ("Whenever a person in the custody of an officer shall
escape . . . such officer, with or without a warrant, may pursue
such person anywhere in the Commonwealth and, when actually in
close pursuit, may arrest him wherever he is found."). 	Thus,
having complied with Officer Sypher's show of authority, Clarke
was not free to leave the scene until Sypher completed his
investigation of Clarke's license plate. 	Officer Sypher was,
therefore, authorized to pursue Clarke when Clarke fled, and to
arrest Clarke upon apprehending him. 	Moreover, Sypher's
observation of Clarke throwing an object over a fence during the
pursuit provided Sypher with reasonable suspicion to investigate
the object. 	The handgun Sypher found was, therefore, properly
admitted at Clarke's trial. 	Because Clarke physically resisted

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Officer Sypher's lawful attempt to arrest him, we affirm his
conviction on that charge.
Turning to Clarke's challenge to the sufficiency of the
evidence introduced against him on this concealed weapon charge,
we note that our standard of review is well established:
When considering the sufficiency of the
evidence on appeal of a criminal conviction,
we must view all the evidence in the light
most favorable to the Commonwealth and
accord to the evidence all reasonable
inferences fairly deducible therefrom. 	The
jury's verdict will not be disturbed on
appeal unless it is plainly wrong or without
evidence to support it.
Clark v. Commonwealth, 30 Va. App. 406, 409-10, 517 S.E.2d 260,
261 (1999) (quoting Traverso v. Commonwealth, 6 Va. App. 172,
176, 366 S.E.2d 719, 721 (1988)). 	"If there is evidence to
support the conviction, the reviewing court is not permitted to
substitute its judgment, even if its view of the evidence might
differ from the conclusions reached by the finder of fact at the
trial." 	Commonwealth v. Taylor, 256 Va. 514, 518, 506 S.E.2d
312, 314 (1998). 	A reviewing court must accord the judgment of
a trial court sitting without a jury the same weight as a jury
verdict. 	See Clay v. Commonwealth, 30 Va. App. 254, 258, 406
S.E.2d 684, 685 (1999).
Applying these standards to the evidence in the record, we
find no clear error in the trial court's verdict. 	Officer
Sypher testified that he did not see a weapon on Clarke's person

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when Clarke exited his vehicle, but, during the ensuing chase,
he saw Clarke lift up his jacket, remove an item, and throw it
over the fence. 	Clarke was wearing a "thigh-length black
leather jacket" that "was pulled tight around his body." 	The
court's inference, as fact finder, that the item concealed
beneath Clarke's jacket was the handgun recovered from the other
side of the fence is supported by the evidence presented and
could reasonably be drawn. 	"This Court does not substitute its
judgment for that of the trier of fact, and the trial court's
judgment will not be set aside unless plainly wrong or without
evidence to support it." 	Hunley v. Commonwealth, 30 Va. App.
556, 559, 518 S.E.2d 347, 349 (1999) (citations omitted). 	We
find the evidence sufficient beyond a reasonable doubt to
support Clarke's conviction for carrying a concealed weapon, and
we affirm it.
INCIDENT OF APRIL 30, 1998
Facts
At 8:24 p.m. on April 30, 1998, Hampton Police Officer
Christopher McIntire, the same officer involved in the September
6, 1997 incident, was patrolling Shell Road in a marked patrol
car. 	He observed an individual exit from a bronze-colored
Cadillac. 	This person turned, looked at McIntire's patrol car,
and then quickly turned around again and walked away from the
Cadillac. 	McIntire testified that he knew that a number of

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vehicles in the area had been stolen and that, because of the
conduct of the driver of the Cadillac, he decided to investigate
further. 	He requested dispatch to run a check on the car's tags
to determine if it had been stolen. 	Although the dispatcher
determined that the tags did not belong to a stolen vehicle,
McIntire, reasoning that an interval of time often exists
between a report of a stolen vehicle and its entry into the
police computer system, decided to approach the car "to see if
the ignition had been jimmied."
Officer McIntire parked his patrol car behind the Cadillac,
activated his "secondary" lights, visible only from the back,
and approached the Cadillac on foot. 	As McIntire approached the
vehicle, he observed the individual who had exited the Cadillac
walk down the street away from the car. 	He thus believed the
vehicle was unoccupied. 	McIntire could not see into the vehicle
as he approached, but when he walked to the driver's side of the
car he noticed a man sitting in the passenger's side front seat,
with one arm positioned behind his seat. 	McIntire asked him to
produce identification. 	When the individual offered his
identification, McIntire recognized him to be Clarke, whom he
had arrested previously. 	McIntire then radioed Officer Brian
Snyder, whom he knew to be nearby, to come to the scene "for
security reasons." 	McIntire asked Clarke what he was doing in
the car and who owned it. 	The name of the owner given by Clarke

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in response to McIntire's question matched the name found when
dispatch checked the vehicle's tags.
When Officer Snyder arrived, he approached the Cadillac
from the passenger's side and observed a handgun in a pocket
compartment in the fabric covering the back of the passenger's
seat. 	After Snyder alerted McIntire to the presence of a
weapon, McIntire instructed Clarke to exit the vehicle.
McIntire then placed Clarke in handcuffs. 	The officers
recovered a handgun from the compartment behind the passenger's
seat, as well as a small amount of marijuana.
Upon searching Clarke's clothes at the jail, McIntire found
a small rock of crack cocaine. 	He also found a small bag of
marijuana in Clarke's underwear. 	Additional amounts of crack
cocaine were found in the right pants leg of Clarke's sweatpants
and secreted between Clarke's buttocks.
Based on the above course of events, Clarke was charged
with possession of a concealed weapon, third or subsequent
offense, possession of cocaine with intent to distribute,
possession of marijuana, and possession of a firearm while being
in possession of cocaine with intent to distribute. 	He was
convicted of each charge, except possession of a concealed
weapon, third or subsequent offense, in a bench trial on
November 12, 1998.

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Analysis
Clarke contends he was illegally detained at the vehicle
site by McIntire, arguing he was seized when McIntire pulled up
behind the Cadillac and turned on his secondary lights. 	His
claim is without merit.
The officer's approach to a parked car on a public street
for investigative purposes does not constitute a seizure of
either the car or the individuals found in it. 	See Woodson v.
Commonwealth, 245 Va. 401, 407, 429 S.E.2d 27, 30 (1993) (Lacy,
J., concurring) (citing Florida v. Royer, 460 U.S. 491, 497
(1983)); Carson v. Commonwealth, 244 Va. 293, 294, 421 S.E.2d
415, 416 (1992); Baldwin v. Commonwealth, 243 Va. 191, 196-97,
413 S.E.2d 645, 648 (1992); Reittinger v. Commonwealth, 29
Va. App. 724, 730-31, 514 S.E.2d 775, 778 (1999). 	Although an
officer's activation of his cruiser's flashing lights before he
approaches a parked vehicle may be construed as a seizure for
Fourth Amendment purposes, see Lawson v. Maryland, 707 A.2d 947,
951 (Md. Ct. Spec. App. 1998); Oregon v. Walp, 672 P.2d 374 (Or.
Ct. App. 1983); Washington v. Stroud, 634 P.2d 316 (Wash. Ct.
App. 1981), we do not address such facts here, as McIntire
testified that he activated his "secondary" lights, visible only
from the rear of the cruiser. 	Because these lights were not
visible to Clarke, their activation could not alter his
perception of his freedom to leave, and thus could not effect a

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seizure. 	Furthermore, McIntire was permitted to ask Clarke
questions without violating his Fourth Amendment rights. 	See
Richmond v. Commonwealth, 22 Va. App. 257, 261 n.1, 468 S.E.2d
708, 709 n.1 (1996) (citing Royer, 460 U.S. at 497); see also
Richards v. Commonwealth, 8 Va. App. 612, 615, 383 S.E.2d 268,
270 (1989) (Fourth Amendment not implicated when police officers
approached defendant, who was standing outside an airport
terminal, and asked to see his airline ticket and
identification). 	McIntire's encounter with Clarke was therefore
consensual.
"[A] weapon is hidden from common view under Code
§ 18.2-308(A) when it is 'hidden from all except those with an
unusual or exceptional opportunity to view it.'" 	Winston v.
Commonwealth, 26 Va. App. 746, 756, 497 S.E.2d 141, 146 (1998)
(quoting Main v. Commonwealth, 20 Va. App. 370, 372-73, 457
S.E.2d 400, 402 (1995) (en banc)). 	The gun found in the pocket
of the vehicle seat in which Clarke was seated was concealed
from common view, and became visible to Officer Snyder only when
he approached the front passenger seat of the Cadillac close
enough for him to peer down into the seat's pocket compartment
from directly above. 	The discovery of Clarke's handgun provided
the officers with probable cause to arrest Clarke for possession
of a concealed weapon. 	Having arrested Clarke lawfully for
possession of a concealed weapon, his search at the police

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station was reasonable, see Illinois v. Lafayette, 462 U.S. 640
(1983), and the drug evidence produced as a result of that
search was properly admitted into evidence on the drug-related
charges for which Clarke was prosecuted. 	See Moss v.
Commonwealth, 29 Va. App. 219, 224, 516 S.E.2d 246, 248 (1999).
We next examine whether the evidence was sufficient to
convict Clarke on the charges of possession of cocaine with
intent to distribute, possession of marijuana, and possession of
a firearm while being in possession of cocaine with intent to
distribute. 	When an appellant challenges the sufficiency of the
evidence below, the appellate court must accord the judgment of
the trial court sitting without a jury the same weight as a jury
verdict. 	See Saunders v. Commonwealth, 242 Va. 107, 113, 406
S.E.2d 39, 42, cert. denied, 502 U.S. 944 (1991). 	The evidence
is viewed in the light most favorable to the Commonwealth,
granting it all reasonable inferences fairly deducible. 	See
Yancey v. Commonwealth, 30 Va. App. 510, 513, 518 S.E.2d 325,
326 (1999). 	The appellate court must examine the evidence
tending to support criminal convictions and allow them to stand
unless they are plainly wrong or without evidentiary support.
See id. 	Furthermore, appellate review is limited to specific
sufficiency arguments raised at trial. 	See George v.
Commonwealth, 242 Va. 264, 281 n.4, 411 S.E.2d 12, 22 n.4
(1991).

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"Possession with intent to distribute is a crime which
requires 'an act coupled with specific intent.'" 	Stanley v.
Commonwealth, 12 Va. App. 867, 869, 407 S.E.2d 13, 15 (1991).
Intent is the purpose formed in a person's mind which may be
inferred from the surrounding circumstances in a particular
case. 	See David v. Commonwealth, 2 Va. App. 1, 3, 340 S.E.2d
576, 577 (1986). 	Possession of a quantity greater than that
ordinarily possessed for one's personal use may be sufficient to
establish an intent to distribute it. 	See Hunter v.
Commonwealth, 213 Va. 569, 570, 193 S.E.2d 779, 780 (1973).
Additional evidence of intent to distribute includes the method
in which the drugs seized are packed. 	See Monroe v.
Commonwealth, 4 Va. App. 154, 156, 355 S.E.2d 336, 337 (1987).
Possession of a gun is also a factor which the trier of fact can
consider. 	See Burchette v. Commonwealth, 15 Va. App. 432, 436,
425 S.E.2d 81, 84 (1992).
In the case before us, Clarke had cocaine in three places
on his body, including between his buttocks. 	Expert testimony
in the case established that the amount of cocaine found on
Clarke was inconsistent with personal use and that users did not
hide drugs between their buttocks. 	No paraphernalia for smoking
the drugs was found, and a .45 pistol was found in Clarke's
possession. 	This evidence is sufficient to support Clarke's
conviction of possession of cocaine with intent to distribute.

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Clarke also was found in possession of a small bag containing
marijuana, which was sufficient to support his conviction for
possession of marijuana.
Finally, we find sufficient evidence to support Clarke's
conviction for possession of a firearm while in possession of
cocaine with intent to distribute.
To support a conviction based upon
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
[accused] was aware of both the presence and
character of the [item] and that it was
subject to his dominion and control."
Hancock v. Commonwealth, 21 Va. App. 466, 469, 465 S.E.2d 138,
140 (1995) (quoting Powers v. Commonwealth, 227 Va. 474, 476,
316 S.E.2d 739, 749 (1984)).
Clarke was the only occupant of the vehicle at the time he
was arrested, and his hand was seen reaching behind his seat,
toward the location of the gun, when McIntire first observed
him. 	From these facts, the court could properly infer that
Clarke was aware of the firearm's presence in the seat pocket of
the vehicle and that it was in his possession while he was in
possession of cocaine with the intent to distribute it. 	In
short, we find the evidence proves beyond a reasonable doubt
Clarke's guilt on this charge.

For the reasons stated in this opinion, we affirmClarke's
convictions.

Af firned.