Clarke v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judges Willis and Annunziata
Argued at Chesapeake, Virginia

JAMAR DUANE CLARKE
OPINION BY
v. Record No. 0425-99-1 JUDGE ROSEMARIE ANNUNZIATA
APRIL 25, 2000
COMMONWEALTH OF VIRGINIA AND
CITY OF HAMPTON

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.
 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 detain 1

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.

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 For the reasons stated in this opinion, we affirm Clarke's

convictions.

Affirmed.

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