Present: Hassell, C.J., Keenan, Koontz, Kinser, Lemons,
and Agee, JJ., and Russell, S.J.
RALPH LEE JORDAN
v. Record No. 061211 OPINION BY JUSTICE CYNTHIA D. KINSER
April 20, 2007
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
Ralph Lee Jordan was convicted of possession with the
intent to distribute a Schedule I controlled substance in
violation of Code § 18.2-248, and felonious obstruction of
justice in violation of Code § 18.2-460(C). On appeal,
Jordan claims that the evidence was insufficient to sustain
both convictions. We agree and will therefore reverse the
judgment of the Court of Appeals of Virginia.
RELEVANT FACTS AND PROCEEDINGS
The relevant facts are not in dispute, as Jordan
introduced no evidence at his bench trial in the Circuit
Court of Henrico County on the charges at issue.1 On April
24, 2004 at approximately 4:10 a.m., a Henrico County
police officer, F.P. Kern, stopped an automobile driven by
Jordan after Officer Kern observed the vehicle crossing
over and striking the double yellow line in the center of
1
Jordan was tried jointly with Curtis Wright, III,
who was also charged with possession with the intent to
distribute a Schedule I controlled substance. At trial,
Wright likewise presented no evidence.
the roadway several times. Officer Kern stopped his police
vehicle behind Jordan’s automobile and illuminated its
interior with both his headlights and his spotlight. As
Officer Kern approached the driver’s side of Jordan’s
vehicle, he observed a passenger, later identified as
Curtis Wright, III, lean over, use his left hand to open
the front passenger door approximately two to three inches,
and then drop a cylindrical object out of his hand onto the
ground. Upon reaching the driver’s side of the vehicle,
Officer Kern detected the odor of alcohol on Jordan’s
breath and noticed that Jordan had “glassy eyes.”
Officer Kern then approached the passenger side of the
vehicle and found a small prescription bottle lying on the
wet gravel just under the “rocker panel” of the front
passenger door. The prescription bottle was dry, although
the road was wet from a recent rain. Considering the
bottle’s location on the ground, Officer Kern believed the
tires of Jordan’s vehicle would have crushed it if the
bottle had been there previously. Officer Kern opened the
bottle and found “thirty tablets with nine pieces and
powder.” According to Officer Kern, the intact tablets
“were marked on either side, with a flower or a wagon wheel
type design.” Based on his training and experience,
Officer Kern suspected the tablets were a controlled
2
substance commonly known as “ecstasy.” Subsequent testing
by the Division of Forensic Science confirmed that the
tablets were “3,4-Methylenedioxyamphetamine,” i.e.,
ecstasy. Officer Kern asked Wright if he knew anything
about the bottle. Wright responded that he did not, but
admitted that he had just come from “a club.”
After Jordan failed a variety of field sobriety tests,
Officer Kern arrested Jordan for driving under the
influence of alcohol. He arrested Wright for possession
with the intent to distribute ecstasy. Incident to the
arrests, Officer Kern searched Jordan’s vehicle and found
in the glove compartment what Officer Kern described as “a
roll of money . . . rolled sequentially [in] fives, tens,
twenties, and hundreds” and “held in place by a rubber
band.” The roll of cash contained a total of $3,400. When
Officer Kern asked Jordan about the money, Jordan admitted
that it belonged to him, but claimed “that he had his
automobile dealer[’]s license” and used the money to
“purchase and deal automobiles.” Officer Kern testified
that he told Jordan the roll of money was evidence linking
Jordan to the distribution of ecstasy.
Officer Kern placed the roll of money that he had
recovered in between the two front seats of his police
vehicle. With Jordan sitting in the front passenger seat,
3
handcuffed, and restrained by a seatbelt, Officer Kern then
transported Jordan to the magistrate’s office. Upon
arriving at the magistrate’s office, Officer Kern went
inside to lock up his weapon and, while doing so, left
Jordan alone in the vehicle. After Officer Kern removed
Jordan from the vehicle and took him before the magistrate,
the roll of cash fell from Jordan’s pants. Jordan admitted
taking the money from the police vehicle and told Officer
Kern that he did so because he believed that the officer
was going to steal the money.
Deciding to use more caution with Jordan, Officer Kern
again handcuffed him.2 According to Officer Kern, Jordan
“stiffen[ed] his arms and began pulling away . . . any
time[] that he had the opportunity.” Officer Kern
testified that he had to “forcefully put [Jordan’s] arms
behind his back, after pinning [Jordan] to the counter.”
While walking to the probable cause hearing and to his bond
hearing, Jordan walked slowly and pulled away, requiring
Officer Kern to pin Jordan against a door or wall several
times. On the way out of the magistrate’s office after the
probable cause determination, Jordan stopped repeatedly,
causing Officer Kern to bump into him. Officer Kern
2
The record is not clear as to when Officer Kern had
removed the handcuffs.
4
testified that, when he removed the handcuffs so that
Jordan could be fingerprinted and photographed, Jordan put
his hands “down the front of his pants and began playing
with his genitalia.” After Jordan refused three requests
to remove his hands, Officer Kern forcibly did so. During
the intake process, Jordan also refused to answer questions
in a timely fashion, instead answering a question after
three or four other questions had been asked.
The Commonwealth’s only other evidence came from
Michael J. Barren, an investigator with the Narcotics Unit
of the Henrico County Police Department, who testified as
an expert witness regarding ecstasy and how it is packaged
and sold. Barren stated that ecstasy is “commonly referred
to as club drugs” and is generally used in clubs that have
dancing all night. According to Barren, a pill of ecstasy
typically sells for approximately $20 to $25. Barren also
testified that the bottle recovered by Officer Kern was
approximately one-quarter full and that the quantity of
pills in the bottle was not consistent with personal use.
Finally, Barren opined the $3,400 in cash recovered by
Officer Kern was representative of the sale of
approximately 130 to 170 pills of ecstasy.
At the close of the evidence, Jordan moved to strike
the evidence on both charges. The trial court denied the
5
motion and found Jordan guilty of possession of ecstasy
with the intent to distribute and obstruction of justice.
With regard to the latter offense, the trial court found
that Jordan had impeded Officer Kern by taking the roll of
money after Officer Kern had seized it. The trial court
also denied Jordan’s post-trial motion to dismiss the
charges.
Jordan appealed his convictions to the Court of
Appeals of Virginia. A three-judge panel of the Court of
Appeals denied Jordan’s petition for appeal for the reasons
stated in its prior unpublished per curiam order. Jordan
v. Commonwealth, Record No. 1642-05-2 (May 16, 2006). In
that per curiam order, the Court of Appeals concluded that
the fact-finder could reasonably have inferred from the
evidence that the $3,400 represented proceeds from the sale
of the ecstasy pills that were no longer in the bottle that
Officer Kern recovered and that, consequently, Jordan and
Wright jointly possessed the ecstasy. Jordan v.
Commonwealth, Record No. 1642-05-2, slip op. at 3 (Feb. 15,
2006). The Court of Appeals also concluded that Jordan
impeded Officer Kern by removing the $3,400 from the police
vehicle and “by using force” to prevent Officer Kern from
performing his duties and handcuffing Jordan. Id. Jordan
appeals from the judgment of the Court of Appeals.
6
ANALYSIS
On appeal, Jordan challenges the sufficiency of the
evidence to sustain each of his convictions. He first
asserts that the evidence was insufficient to establish
that he jointly possessed the ecstasy actually found in
Wright’s possession. Next, Jordan claims the evidence was
insufficient to establish that he either threatened Officer
Kern with bodily harm or used any force to impede the
officer. We will address the issues in that order.
When the sufficiency of the evidence in a criminal
case is challenged on appeal, this Court must view the
evidence in the light most favorable to the Commonwealth
and accord to it the benefit of all reasonable inferences
fairly deducible from the evidence. Welch v. Commonwealth,
271 Va. 558, 561, 628 S.E.2d 340, 341 (2006); Walton v.
Commonwealth, 255 Va. 422, 425–26, 497 S.E.2d 869, 871
(1998). We will not disturb a trial court’s judgment on
appeal unless it is plainly wrong or without evidence to
support it. Code § 8.01-680; Walton, 255 Va. at 426, 497
S.E.2d at 871. However, “it is just as obligatory upon the
appellate court, to set aside . . . the judgment of a
court, when it is, in its opinion, contrary to the law and
evidence, and therefore plainly wrong, as it is to sustain
it when the reverse is true.” Bland v. Commonwealth, 177
7
Va. 819, 821, 13 S.E.2d 317, 317 (1941); accord Tarpley v.
Commonwealth, 261 Va. 251, 256, 542 S.E.2d 761, 763 (2001);
Hickson v. Commonwealth, 258 Va. 383, 387, 520 S.E.2d 643,
645 (1999).
To convict Jordan of possession of ecstasy with the
intent to distribute, the Commonwealth had to prove
beyond a reasonable doubt that Jordan was aware of the
presence and character of the drug and that he
consciously possessed it. See Walton, 255 Va. at 426,
497 S.E.2d at 871; Andrews v. Commonwealth, 216 Va. 179,
182, 217 S.E.2d 812, 814 (1975). “An accused’s mere
proximity to an illicit drug, however, is not sufficient
to prove possession.” Walton, 255 Va. at 426, 497 S.E.2d
at 872; accord Wilson v. Commonwealth, 272 Va. 19, 27,
630 S.E.2d 326, 330 (2006); Drew v. Commonwealth, 230 Va.
471, 473, 338 S.E.2d 844, 845 (1986). Nor does an
accused’s ownership or occupancy of the premises or
vehicle where an illegal drug is found create a
presumption of possession. Walton, 255 Va. at 426, 497
S.E.2d at 872; Garland v. Commonwealth, 225 Va. 182, 184,
300 S.E.2d 783, 784 (1983).
The Commonwealth did not, however, have to establish
that Jordan actually possessed the ecstasy; proof of
constructive possession is sufficient. See Wilson, 272
8
Va. at 26–27, 630 S.E.2d at 330; Walton, 255 Va. at 426,
497 S.E.2d at 872. 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.’” Drew, 230 Va. at 473, 338
S.E.2d at 845 (quoting Powers v. Commonwealth, 227 Va.
474, 476, 316 S.E.2d 739, 740 (1984)). That an accused
occupied or owned the premises or vehicle where a
controlled substance was found is one circumstance that
can be considered along with the other evidence in
determining whether the accused constructively possessed
the illegal drug. Lane v. Commonwealth, 223 Va. 713,
716, 292 S.E.2d 358, 360 (1982); Gillis v. Commonwealth,
215 Va. 298, 301, 208 S.E.2d 768, 770–71 (1974). When,
as here, a conviction is based on circumstantial
evidence, the issue before us is not whether there was
some evidence to support Jordan’s hypotheses of
innocence, but whether a reasonable fact-finder, upon
consideration of all the evidence, could have rejected
Jordan’s theories in his defense and found him guilty
beyond a reasonable doubt. See Hudson v. Commonwealth,
265 Va. 505, 513, 578 S.E.2d 781, 785 (2003).
9
The Commonwealth argues that there was sufficient
circumstantial evidence from which a reasonable fact-
finder could infer that Jordan was aware of the presence
and character of the ecstasy and that the ecstasy was
subject to his dominion and control. In support of this
argument, the Commonwealth relies primarily on the $3,400
in cash found in the glove compartment of Jordan’s
vehicle, the manner in which the money was rolled,
Jordan’s acknowledgement that the money belonged to him,
his subsequent taking of the money from the police
vehicle after being informed it was evidence against him
on the drug charge, Jordan’s close proximity to the
bottle of ecstasy when Wright opened the vehicle’s door
and dropped the bottle on the ground, Wright’s admission
that he had just come from “a club,” and Barren’s
testimony about how ecstasy is packaged and sold and that
it is “commonly referred to as club drugs.” We do not
agree with the Commonwealth’s position.
The evidence did not establish either that Jordan
was aware of the character and presence of the ecstasy or
that the ecstasy was under Jordan’s dominion and control.
When Officer Kern stopped the vehicle, he observed only
Wright making furtive movements. Wright admitted that he
had been to “a club,” but he did not indicate that Jordan
10
accompanied him to the club. Other than the roll of
money, the search of the vehicle and of Jordan’s person
did not reveal any other contraband or items associated
with the distribution of controlled substances. Even
though Jordan admitted the cash belonged to him, it was
rolled sequentially according to denominations rather
than in amounts corresponding to the price of an ecstasy
pill. See Archer v. Commonwealth, 225 Va. 416, 417, 303
S.E.2d 863, 863 (1983) (“currency was grouped in amounts
corresponding to the street price of a Preludin pill”).
The Commonwealth argues on brief that the roll of
cash was in denominations commonly used in drug
transactions, but the record contains no such evidence.
Admittedly, Jordan removed the money from the police
vehicle, but he did so after Officer Kern told him the
cash was evidence that would link him to the distribution
of ecstasy. Thus, as the Commonwealth recognizes on
brief, Jordan could have stolen the roll of cash in order
to hamper the prosecution of the drug charge against him
irrespective of whether the money represented proceeds
from the sale of ecstasy.
In sum, we conclude that the circumstantial evidence
“at most, create[d] a mere suspicion. ‘Suspicion,
however, no matter how strong, is insufficient to sustain
11
a criminal conviction.’” Garland, 225 Va. at 184, 300
S.E.2d at 785 (quoting Stover v. Commonwealth, 222 Va.
618, 624, 283 S.E.2d 194, 197 (1981)). Thus, we hold
that the evidence was insufficient, as a matter of law,
to prove constructive possession of the ecstasy by
Jordan. Upon consideration of all the evidence, a
reasonable fact-finder could not have found Jordan guilty
beyond a reasonable doubt. See Hudson, 265 Va. at 513,
578 S.E.2d at 785.
Turning now to Jordan’s conviction for obstructing
justice, we again conclude that the evidence was
insufficient to sustain the conviction under Code § 18.2-
460(C). Jordan was indicted for using threats of bodily
harm or force knowingly to attempt to intimidate or
impede a law-enforcement officer in the discharge of his
duty “relating to a violation of or conspiracy to violate
[Code] § 18.2-248 or [Code] § 18.2-248.1 (a)(3), (b) or
(c) or any violent felony offense listed in subsection C
of [Code] § 17.2-805.” See Washington v. Commonwealth,
273 Va. ___, ___ S.E.2d ___ (this day decided)
(discussing the elements of the offense set forth in Code
§ 18.2-460(C)). We disagree with the Court of Appeals’
conclusion that Jordan’s act of removing the roll of cash
from the police vehicle and his conduct in the
12
magistrate’s office and during the intake process
amounted to the use of force knowingly to attempt to
impede Officer Kern in the discharge of his duties.
In Ruckman v. Commonwealth, 28 Va. App. 428, 505
S.E.2d 388 (1998), the Court of Appeals stated that
“obstruction 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.” Id. at 429, 505 S.E.2d at 389.
That statement undermines the Court of Appeals’ decision
in this case but is consistent with our explanation of
what constitutes obstruction of justice:
To constitute obstruction 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.
Jones v. Commonwealth, 141 Va. 471, 478–79, 126 S.E. 74,
77 (1925) (citation and internal quotation marks
omitted).
13
Contrary to the Commonwealth’s argument, Jordan did
not violate Code § 18.2-460(C) by removing the roll of
cash from the police vehicle. Regardless of whether that
action impeded Officer Kern in the discharge of his
duties, it did not involve the use of force. The mere
act of removing the roll of cash from its location
between the seats in the police vehicle was not the type
of “force” contemplated by Code § 18.2-460(C). See
Black’s Law Dictionary 673 (8th ed. 2004) (defining the
term “force” as “[p]ower, violence, or pressure directed
against a person or thing”).
Similarly, we reject the Commonwealth’s argument
that the evidence concerning Jordan’s conduct in the
magistrate’s office and during the intake process was
sufficient to sustain his conviction for obstructing
justice. Unquestionably, Jordan was less than
cooperative and his conduct rendered Officer Kern’s
discharge of his duties more difficult, but Jordan’s
conduct again did not involve the use of force.
Furthermore, it did not impede or prevent Officer Kern
from performing his tasks. See Jones, 141 Va. at 479,
126 S.E. at 77 (throwing a bag of barley into a road in
front of an officer’s vehicle did not obstruct the
14
officer himself); Ruckman, 28 Va. App. at 429, 505 S.E.2d
at 389.
Thus, we conclude that the evidence was
insufficient, as a matter of law, to prove that Jordan
obstructed justice in violation of Code § 18.2-460(C).3
CONCLUSION
For these reasons, we will reverse the judgment of
the Court of Appeals and dismiss the indictments.
Reversed and dismissed.
3
In contrast to the situation in Washington v.
Commonwealth, 273 Va. at ___, ___ S.E.2d at ___, there was
evidence in this case that Officer Kern was discharging his
duties “relating to a violation of [Code] § 18.2-248.”
Code § 18.2-460(C). At the time Jordan allegedly
obstructed justice, he had been charged with possession
with the intent to distribute a Schedule I controlled
substance.
15