COURT OF APPEALS OF VIRGINIA
Present: Judges Russell, Ortiz and Raphael
UNPUBLISHED
Argued at Richmond, Virginia
ANTOINE L. DEAN, S/K/A
ANTWON DEAN
MEMORANDUM OPINION * BY
v. Record No. 0764-21-2 JUDGE STUART A. RAPHAEL
MAY 24, 2022
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF PETERSBURG
Joseph M. Teefey, Jr., Judge
Todd M. Ritter (Hill & Rainey, on brief), for appellant.
Craig W. Stallard, Senior Assistant Attorney General (Jason S.
Miyares, Attorney General, on brief), for appellee.
Following a bench trial, appellant was convicted of two counts of driving with a
suspended license, two counts of possession with intent to distribute a controlled substance, one
count of assault and battery of a law-enforcement officer, and one count of possession of a
controlled substance. 1 The court sentenced appellant to a prison term of fifty years and twelve
months, with forty-five years, sixteen months, and forty days suspended. Appellant claims that
the evidence was insufficient to sustain two of the drug convictions. We disagree and affirm the
trial court’s judgment.
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
1
We refer to Mr. Dean as “appellant” because he is a different “Dean” from Detective
David Dean, who arrested appellant in connection with the December 2018 incident at issue in
this case.
BACKGROUND
The drug charges here arise from separate incidents five months apart. We recite the
facts “in the ‘light most favorable’ to the Commonwealth, the prevailing party in the trial court.”
Hammer v. Commonwealth, 74 Va. App. 225, 231 (2022) (quoting Commonwealth v. Cady, 300
Va. 325, 329 (2021)).
A. The July 2018 Incident
On the evening of July 19, 2018, Officer J.J. Robertson of the Petersburg Bureau of
Police observed appellant’s vehicle speeding on Farmer Street in the City of Petersburg.
Robertson initiated a traffic stop and walked up to the driver’s side of the vehicle. Appellant
opened the door, saying that the window would not roll down. Robertson observed a
“see-through” white baggy on the driver’s side floorboard with a white residue that he suspected
to be narcotics. As Robertson explained the reason for the stop, appellant tried to pull the door
closed, but Robertson held it open. Appellant then “came” at Robertson like a “football player
attempting to rush somebody,” but Robertson successfully subdued him while awaiting backup.
Other officers arrived to assist less than a minute later, and appellant and his passenger were
placed in handcuffs.
Robertson searched the vehicle and was able to “confirm that [the white residue in the
bag] was actually what appeared to be an illegal substance.” Also on the driver’s side
floorboard, Robertson found appellant’s Virginia identification card and a “zip-up style”
lunchbox. The lunchbox contained more than a hundred clear plastic bags, fifty lottery tickets,
white inositol powder, white inositol tablets, latex gloves, BC powder, and two burnt pens.
Robertson found two digital scales and two plastic spoons in the compartment of the driver’s
side door.
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Robertson also found a bag in the center console “in plain view” that contained a large
quantity of a “rock-like and powder-like substance.” The Department of Forensic Science later
determined that the bag contained 19.20 grams of powder cocaine. That was the only item from
the vehicle that tested positive for cocaine.
When Robertson questioned him, appellant waived his rights under Miranda v. Arizona,
384 U.S. 436 (1966), denied any knowledge of the substances, and claimed that he had not been
speeding. Appellant admitted that the car was registered to him. He said that the lunchbox was
his and that he used the inositol tablets and powder to control his weight. Appellant also
admitted that one of the scales was his and that he used it to weigh the dietary supplements. He
said the spoons in the door were there when he bought the car. He claimed to know nothing
about the large bag of white powder in the center console.
Appellant was charged with driving on a suspended license, subsequent offense,
possession with intent to distribute a controlled substance, and assault and battery of a
law-enforcement officer. Appellant pleaded guilty to the assault-and-battery charge and not
guilty to the rest. At trial, he was convicted of the driving-on-a-suspended-license charge.
As for the possession-with-intent-to-distribute charge, appellant said he never saw the
plastic baggy on the driver’s side floorboard or the bag of cocaine in the center console. He
claims to have been giving his passenger a ride to an ATM machine when he stopped for gas.
Contrary to what he first told Robertson—that the spoons were in the car when he bought
it—appellant testified at trial that the spoons were his. And while Robertson testified that
inositol power is typically used to cut cocaine, appellant said he used the spoons to put the
powder on a lottery ticket to weigh it on his digital scale before mixing it with water as a
weight-loss measure. Appellant said he used the plastic bags in the lunchbox to “bag candy up”
for his kids.
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In closing, appellant’s counsel argued that “the bag of cocaine found in a conspicuous
place between two individuals [was not] his, and that the evidence certainly could suggest that
the other person, upon encounter with the police, discarded those items from his person.” The
trial court rejected that theory and found appellant guilty of possession with intent to distribute a
controlled substance.
B. The December 2018 Incident
On December 17, 2018, Detective David Dean of the Petersburg Bureau of Police
observed a light blue Audi traveling on South Jones Street in the City of Petersburg. After the
driver spotted Detective Dean, the Audi came to a stop and remained stopped for “an extremely
long amount of time.” After circling the block, Detective Dean found appellant sitting in the
driver’s seat of his vehicle, alone, parked in front of a residence. As Detective Dean approached,
appellant exited the vehicle, locked the doors, and began yelling that Detective Dean was
harassing him.
Detective Dean performed a records search and discovered that appellant had been
driving on a suspended license, which appellant admitted. Detective Dean requested the car keys
and appellant’s license. Appellant said his license was inside the residence, and Detective Dean
allowed him to go inside to get it. After appellant entered the residence, however, a barking dog
drew Detective Dean’s attention to the backyard, where he spotted appellant jumping over the
back fence. Detective Dean knocked on the door of the residence, and the young woman who
answered said she did not know appellant.
Detective Dean conducted an inventory search of appellant’s vehicle before impounding
it. He found a clear baggy on the passenger seat containing what was later confirmed to be
1.2016 grams of cocaine. The bag of cocaine was sitting on top of a summons with appellant’s
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name on it. Detective Dean also found appellant’s cell phone in the vehicle. Appellant was
charged with driving on a suspended license and possession of a controlled substance.
At trial, appellant testified that he had been talking with someone on his phone “for a
couple [of] hours” and listening to a police scanner on a separate phone when he discovered that
his phone battery was low. Appellant said he had been charging his phone inside the car for ten
to fifteen minutes when Detective Dean appeared. Seeing Detective Dean approach, appellant
“g[o]t out of the car and lock[ed] the door” and walked toward the house. Appellant said he did
not want to give Detective Dean his license because he wasn’t “suspected of committing a
crime.” Appellant denied having fled from the residence, claiming that he had been inside all
along, including while his car was being towed.
In closing, appellant argued that the evidence did not show that he had dominion or
control over the cocaine. But the trial judge found appellant guilty of possession of a controlled
substance. The judge specifically found appellant “not credible” and the testimony of Detective
Dean “credible.” The court pondered, “why would you leave your cell phone and a . . .
summons that you need to pay . . . and just stay in the house and just say forget it? . . . Well,
because there is cocaine sitting . . . underneath that uniform summons.” 2
ANALYSIS
“In general, when reviewing a challenge to the sufficiency of the evidence to support a
conviction, an appellate court . . . reverses the judgment of the trial court only when its decision
is plainly wrong or without evidence to support it.” Marshall v. Commonwealth, 69 Va. App.
648, 652-53 (2019). “If there is evidentiary support for the conviction, ‘the reviewing court is
not permitted to substitute its own judgment, even if its opinion might differ from the
2
The trial court also found appellant guilty of driving with a suspended license.
Appellant has not challenged that conviction.
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conclusions reached by the finder of fact at the trial.’” Chavez v. Commonwealth, 69 Va. App.
149, 161 (2018) (quoting Banks v. Commonwealth, 67 Va. App. 273, 288 (2017)).
“To convict a person of possessing illegal drugs, ‘the Commonwealth must prove that the
defendant was aware of the presence and character of the drugs and that he intentionally and
consciously possessed them.’” Watts v. Commonwealth, 57 Va. App. 217, 232 (2010) (quoting
Andrews v. Commonwealth, 216 Va. 179, 182 (1975)). “Possession of a controlled substance
may be actual or constructive.” Id. “Constructive possession of drugs can be shown by ‘acts,
statements, or conduct of the accused or other facts or circumstances which tend to show that
[he] was aware of both the presence and character of the substance and that it was subject to his
dominion and control.’” Bagley v. Commonwealth, 73 Va. App. 1, 27 (2021) (quoting Wilson v.
Commonwealth, 272 Va. 19, 27 (2006)). The “‘ownership or occupancy of [a vehicle in which
drugs are] found’ is a factor that ‘may be considered in deciding whether an accused possessed
the drug[s].’” Id. (quoting Wilson, 272 Va. at 27).
A. The July 2018 Possession-with-Intent-to-Distribute Charge
Appellant argues that the evidence from the July 2018 incident failed to show that he
constructively possessed the bag of cocaine found in the center console of his vehicle. We are
not persuaded.
“Possession may be joint or several. Two or more persons may be in possession where
each has the power of control and intends to exercise control jointly.” Atkins v. Commonwealth,
57 Va. App. 2, 23 (2010) (quoting Burnette v. Commonwealth, 194 Va. 785, 792 (1953)); see
also Bagley, 73 Va. App. at 27. The Commonwealth was “not required to exclude the
‘possibility that someone else may have planted, discarded, abandoned or placed the drugs . . . in
the [car]’ in order to prove that appellant constructively possessed them.” Bagley, 73 Va. App. at
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27-28 (second alteration in original) (quoting Brown v. Commonwealth, 15 Va. App. 1, 10
(1992) (en banc)).
Here, appellant admitted to owning and driving the car in which 19.20 grams of cocaine
were found in a conspicuous location in the center console, within his reach. Appellant also
admitted to owning the lunchbox and everything in it, including the 100 clear plastic bags, fifty
unused lottery tickets, white inositol powder, white inositol tablets, latex gloves, BC powder, and
burnt pens. Robertson testified without objection that inositol is “typically” mixed into cocaine
“to cut it” and reduce the risk of the user suffering “major adverse responses.” Appellant also
acknowledged ownership of one scale and the spoons. Those items were clustered around the
driver’s seat, not the passenger’s.
To be sure, appellant denied knowing that the cocaine was sitting in the center console
next to him. But the trial court found appellant’s testimony “not credible.” Sitting as factfinder,
“the trial court was at liberty to discount [appellant]’s self-serving statements as little more than
lying to ‘conceal his guilt,’ and could treat such prevarications as ‘affirmative evidence of
guilt.’” Coleman v. Commonwealth, 52 Va. App. 19, 25 (2008) (first quoting Haskins v.
Commonwealth, 44 Va. App. 1, 10 (2004); then quoting Wright v. West, 505 U.S. 277, 296
(1992)).
The trial court also properly found that appellant’s attempt to flee evidenced his
consciousness of his guilt. For “it is today universally conceded that the fact of an accused’s
flight, escape from custody, resistance to arrest . . . and related conduct, are admissible as
evidence of consciousness of guilt, and thus of guilt itself.” Lambert v. Commonwealth, 70
Va. App. 740, 760 (2019) (quoting Langhorne v. Commonwealth, 13 Va. App. 97, 102 (1991)).
We disagree with appellant that this case is like Maxwell v. Commonwealth, 275 Va. 437
(2008), which his counsel identified at oral argument as appellant’s strongest authority. After
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Maxwell eluded police and was apprehended walking away from several stacks of plywood in a
lumberyard, the police found a bag of drugs near the stacks. Id. at 440. The Supreme Court
found that evidence insufficient to prove that Maxwell had possessed the drugs: “[a]ll the
Commonwealth [was] left with” was “evidence that the defendant was seen near the stacks of
plywood where the drugs were found.” Id. at 444.
By contrast, the drugs here were found in the center console of appellant’s own car, well
within his reach, and alongside items consistent with drug distribution, including the inositol
powder that appellant admitted was his. We therefore conclude that the trial court had sufficient
evidence to find the defendant guilty beyond a reasonable doubt of possession with intent to
distribute.
B. The December 2018 Possession Charge
Challenging his conviction for the December 2018 encounter, appellant argues that there
was no forensic evidence linking him to the bag of cocaine on the passenger seat of the car in
which he had been sitting. He also says that he made no incriminating statements about the
drugs.
But Detective Dean found the cocaine on the passenger seat of appellant’s vehicle on top
of a summons with appellant’s name on it. According to appellant’s own testimony, he had been
in the vehicle for about ten to fifteen minutes before Detective Dean appeared. There was no
evidence that any other person had been inside the vehicle.
Although “[p]ossession of a vehicle does not create a presumption of ‘knowing
possession’ of drugs found inside it,” the “finder of fact may infer from the value of [the] drugs
. . . that it is unlikely . . . a transient would leave [them] in a place not under his dominion and
control.” Bagley, 73 Va. App. at 27 (quoting Brown, 15 Va. App. at 9). Here, appellant’s
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proximity to the bag of cocaine, the placement of the bag on top of a summons issued to him, his
ownership of the vehicle, and the absence of any passenger supported the conviction.
What is more, as in the July 2018 incident, appellant fled the scene during the December
2018 incident. Appellant contends that his “flight cannot be attributed to consciousness of guilt
for the drugs but is plausibly explained by his desire to avoid arrest for [driving on a suspended
license], or simply, his desire to be free from his perception of police harassment.” But “while
appellant’s flight might have been attributable to several causes, ‘consciousness of guilt’ could
be inferred by the trial court if any one of those causes” related to the offense in question. Ricks
v. Commonwealth, 39 Va. App. 330, 337 (2002).
The court thus properly found it incriminating that appellant ran away from Detective
Dean after being permitted to go inside the residence, supposedly to retrieve his license. Under
his own version of the incident, appellant stayed inside the residence while his car was being
towed. But even that version posed credibility problems. The trial court noted that appellant left
his summons and phone in the vehicle, two “totally innocent items that a person would want to
retrieve from the car before it’s towed away.” The trial court reasoned that appellant left those
items in the car because of the presence of cocaine on the passenger seat.
Issues of witness credibility and the weight afforded a witness’s testimony “are matters
solely for the fact finder[,] who has the opportunity to see and hear that evidence as it is
presented.” Gerald v. Commonwealth, 295 Va. 469, 486 (2018) (quoting Elliott v.
Commonwealth, 277 Va. 457, 462 (2009)). We cannot say that the trial court’s determination in
this case was “plainly wrong or without evidence to support it.” Elliott, 277 Va. at 463.
CONCLUSION
We find no merit in either assignment of error.
Affirmed.
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