Jeffery Newkirk, s/k/a Jeffrey Newkirk v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: February 17, 2026
• Docket: 2045241
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Beales, Malveaux and Frucci UNPUBLISHED

JEFFERY NEWKIRK, SOMETIMES KNOWN AS JEFFREY NEWKIRK MEMORANDUM OPINION* v. Record No. 2045-24-1 PER CURIAM FEBRUARY 17, 2026 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK Joseph C. Lindsey, Judge

(G. Anthony Yancey; Law Offices of G. Anthony Yancey, on brief), for appellant.

(Jason S. Miyares,1 Attorney General; J. Brady Hess, Assistant Attorney General, on brief), for appellee.

Following a bench trial, the Circuit Court of the City of Norfolk convicted Jeffery

Newkirk of possession with intent to distribute a Schedule I or II narcotic.2 Newkirk asserts that

the evidence was insufficient to prove he knowingly and intelligently possessed the drugs. For

the following reasons, we affirm the circuit court’s judgment and remand to correct the clerical

error in the final order.3

* This opinion is not designated for publication. See Code § 17.1-413(A). 1 Jay C. Jones succeeded Jason S. Miyares as Attorney General on January 17, 2026. 2 The final order reflects that the circuit court case number was CR240000047-00, but the indictment, conviction order, and notice of appeal reflect the circuit court case number as CR24000047-00. Thus, it appears that there was an extra “0” in the circuit court case number on the final order. We remand to the circuit court to correct the clerical error in the final order. See Code § 8.01-428(B). 3 After examining the briefs and record in this case, the panel unanimously holds that oral argument is unnecessary because “the appeal is wholly without merit.” Code § 17.1‑403(ii)(a); Rule 5A:27(a). BACKGROUND4

Norfolk Police Officer Jackson stopped a “Honda Pilot or a CRV” that had been reported

stolen and approached the driver, later identified as Newkirk. There was another individual in

the passenger seat. Officer Jackson asked both men to step out of the vehicle, and he placed

Newkirk in his police cruiser while other officers searched the stolen car. Officer Jackson

testified that Newkirk “kept on wanting to talk to [him]” and ultimately stated, “[l]ook, you’re

going to find something in the vehicle.” When Officer Jackson asked what they would find,

Newkirk responded, “I’m not trying to be a snitch, . . . but you’re going to find something in the

glove box area.” Officer Jackson alerted other officers on scene to the glove box area where they

eventually found suspected narcotics. The drugs were not in plain view but just “behind the

glove box.”

Norfolk Police Officer Halapin performed the search. He testified that the glove box was

“set up in a way that it runs on a rail system” and “[w]hen you open the latch, the glove box

when it rolls out . . . [i]t goes in and out like a kitchen drawer.” Officer Halapin pinched the

sides of the rail “because it’s just a piece of plastic,” and pulled the glove box out. He found the

narcotics in the space behind the glove box. In the vehicle’s center console, in plain view, were

“several empty baggies of a size that would be consistent with distributing a narcotic” and an

electronic scale.

Norfolk Police Detective Lutrell responded to the scene and collected the suspected

narcotics, the baggies, and the scale. He sent the substance to the Department of Forensic

4 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)). In doing so, we discard any evidence that conflicts with the Commonwealth’s evidence, and regard as true all the credible evidence favorable to the Commonwealth and all inferences that can be fairly drawn from that evidence. Cady, 300 Va. at 329. -2- Science for analysis and later received a certificate of analysis confirming that the substance

contained 26.41 grams of cocaine. Detective Lutrell qualified as an expert in narcotics

distribution, packaging, and use. He testified that the quantity of cocaine, together with the

baggies and the scale, were inconsistent with personal use. He added that the driver of the

vehicle would be able to reach the glove compartment.

After the Commonwealth rested, Newkirk moved to strike the evidence arguing that there

was no nexus between Newkirk and “the drugs that are hidden apparently behind the glove box

out of sight, out of plain view beyond what he can see with regard to his knowledge.” He

argued, “[t]here’s no other evidence to indicate that he actually knew what was there,” and

asserted that the evidence failed to prove the element of possession. The circuit court denied the

motion to strike.

Newkirk’s sister, Kimberly Brown, testified that her brother’s friend “Poochie” usually

drove the car and that on the day of the offense, he picked Newkirk up to go to a job interview.

Brown testified that she “happened to come across the traffic stop” when she was returning from

a doctor’s appointment and saw the familiar vehicle.

Newkirk testified that he and “Poochie” knew each other because they were both in the

same line of work. Newkirk explained that he needed to purchase a vehicle and that “Poochie”

brought the Honda over for him to consider buying. He testified that he drove the car for the first

time on the day of the traffic stop, when he and “Poochie” were on a “test drive.” He stated they

had been out driving for about 45 minutes and were on their way to Food Lion to “buy some

chicken” before the traffic stop. Newkirk said that after he was stopped, he stepped out of the

vehicle before Officer Jackson approached the car and that “Poochie” then locked the car from

the inside and would not allow the officers access to the vehicle. Newkirk testified that as he sat

in Officer Jackson’s police vehicle, he could see through the windshield that “Poochie” was

-3- “stuffing” something into the glove box and wondered what he was doing. After the officers got

“Poochie” out of the car and spoke with him, they told Newkirk that he would be charged with

“everything” related to the stolen vehicle, and that’s when Newkirk told Officer Jackson that

they needed to go back and “check that car again.” Newkirk testified he did not know that there

were illegal narcotics in the vehicle and upon a second query said that he was only in the Honda

for about five minutes before it got stopped.

In rebuttal, Officer Jackson denied that Newkirk exited the vehicle of his own accord, nor

did he recall that “Poochie” had locked the car doors.

In closing, Newkirk again argued that the evidence failed to prove he knowingly

possessed the cocaine that was found behind the glove compartment and asked the circuit court

to dismiss the indictment. The circuit court took the matter under advisement to review

Newkirk’s videotaped interrogation by police. When the parties returned for the court’s ruling,

Newkirk reiterated his assertion that the evidence failed to prove he possessed the narcotics. The

circuit court replied that it had adjourned the proceeding because although Newkirk’s version of

the events was “incredible” and “strained common belief,” the court wanted to “err on the side of

caution” and watch the video.

The circuit court noted that while there was no objection in the prior proceeding to the

video being introduced, Newkirk’s “[c]ounsel . . . now . . . d[id] not want the [c]ourt to look at

the video [and] [t]hat is fine.” The circuit court opined that even without viewing the video

“there was an abundant amount of evidence that spoke to [Newkirk’s] guilt” and thus found the

evidence sufficient to prove that Newkirk possessed the cocaine with the intent to distribute it.

Newkirk appeals.

-4- ANALYSIS

“When an appellate court reviews the sufficiency of the evidence underlying a criminal

conviction, its role is a limited one.” Commonwealth v. Garrick, 303 Va. 176, 182 (2024). “The

judgment of the trial court is presumed correct and will not be disturbed unless it is ‘plainly

wrong or without evidence to support it.’” Pijor v. Commonwealth, 294 Va. 502, 512 (2017)

(quoting Code § 8.01-680). “Thus, ‘it is not for this [C]ourt to say that the evidence does or does

not establish [the defendant’s] guilt beyond a reasonable doubt because as an original proposition

it might have reached a different conclusion.’” Commonwealth v. Barney, 302 Va. 84, 97 (2023)

(alterations in original) (quoting Cobb v. Commonwealth, 152 Va. 941, 953 (1929)).

On appeal, Newkirk argues that the evidence was insufficient to prove he possessed the

cocaine located behind the glove compartment of the stolen Honda, but he does not claim that the

evidence failed to prove an intent to distribute. Thus, the sole issue before us is whether the

evidence presented at trial was sufficient to establish that Newkirk knowingly and intentionally

possessed the contraband found in the car.

The only relevant question for this Court on review “is, after reviewing the evidence in the

light most favorable to the prosecution, whether any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.” Id. (quoting Sullivan v.

Commonwealth, 280 Va. 672, 676 (2010)). “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 conclusions reached by the finder of fact at the trial.’” McGowan v. Commonwealth, 72

Va. App. 513, 521 (2020) (quoting Chavez v. Commonwealth, 69 Va. App. 149, 161 (2018)).

“To convict an individual of possession of a controlled substance, ‘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.’” Merritt v. Commonwealth, 55 Va. App. 719, 733

-5- (2010) (quoting Castaneda v. Commonwealth, 7 Va. App. 574, 583 (1989)). Criminal drug

possession “may be actual or constructive.” Bagley v. Commonwealth, 73 Va. App. 1, 27 (2021).

“It may also be either sole or joint.” 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.’” Id. (alteration in original) (quoting Wilson v. Commonwealth, 272 Va. 19,

27 (2006)). “Furthermore, proof that a person is in close proximity to contraband is a relevant fact

that, depending on the circumstances, may tend to show that, as an owner or occupant . . . of a

vehicle, the person necessarily knows of the presence, nature and character of a substance that is

found there.” Burchette v. Commonwealth, 15 Va. App. 432, 435 (1992).

The evidence here, viewed in totality and considering all reasonable inferences arising from

it, supported the circuit court’s finding that Newkirk possessed the cocaine. Newkirk was pulled

over for driving a stolen vehicle bearing stolen tags. “Poochie” was in the passenger seat. While

sitting in Officer Jackson’s patrol vehicle waiting for the Honda to be searched, Newkirk,

unsolicited, told Officer Jackson that the officers would find “something” in the vehicle and when

Officer Jackson inquired as to what that “something” might be, Newkirk said, “I’m not trying to be

a snitch,5 but you’re going to find something in the glove box area.” Thereafter, Officer Halapin

recovered a large quantity of cocaine from behind the glove box. Baggies and a digital scale

commonly used for distributing narcotics were in the center console in plain view. “Poochie” was a

regular visitor to Newkirk’s house and the two had on several occasions ridden around together,

first in “Poochie’s” red Cadillac and more recently in the Honda. In other words, they were not

strangers; they were associates. And Detective Lutrell testified that the driver of the vehicle would

5 To “snitch” means “to give incriminating evidence against someone, esp. an associate.” Webster’s Third New International Dictionary 2157 (1981) (emphases added). We presume Newkirk understands the meanings of the words he uses. -6- be able to reach the glove compartment. A reasonable fact finder could easily conclude from these

facts that Newkirk was aware of the presence and character of the cocaine and that it was subject to

his dominion and control.

Newkirk’s testimony to the contrary does not alter our analysis. Newkirk was impeached

and his testimony was inconsistent on several key points. Indeed, although he initially stated that he

was in the Honda for “[a] good 45 minutes,” before he was stopped by police, he later claimed he

was only in the vehicle for “[a]bout five minutes” before the traffic stop. On the day of the offense,

he told his sister that he and “Poochie” were going on a job interview, but at trial he testified that

they were on their way to the Food Lion to “buy some chicken.” He also said this was a “test

drive.” His claim that he voluntarily exited the vehicle and could not get back in it because

“Poochie” had locked the doors was inconsistent with Officer Jackson’s testimony that Newkirk

was removed from the car and was not locked out. Officer Halapin arrived right after the vehicle

was stopped and observed both men exiting the Honda. And Newkirk admitted he was a convicted

felon and had a misdemeanor conviction from having “stole[n] from . . . a Wal-Mart years ago.”6

The circuit court believed the testimony of the Commonwealth’s witnesses and rejected

Newkirk’s testimony. “‘[P]otential inconsistencies in testimony are resolved by the fact finder,’ not

the appellate court.” Kelley v. Commonwealth, 69 Va. App. 617, 626 (2019) (quoting Towler v.

Commonwealth, 59 Va. App. 284, 292 (2011)). “The finding of the trial judge as to the credibility

of witnesses and the weight to be given their testimony stands on the same footing as the verdict of

a jury, and will not be disturbed unless it is plainly wrong or without evidence to support it.” Lanier

v. Commonwealth, 10 Va. App. 541, 549 (1990). Moreover, it is well-settled that “[i]n its role of

judging witness credibility, the fact finder is entitled to disbelieve the self-serving testimony of the

6 “Virginia statutory provisions and common law allow the Commonwealth to impeach the credibility of a testifying criminal defendant by asking if he has been convicted of a felony or a misdemeanor involving moral turpitude.” Shifflett v. Commonwealth, 289 Va. 10, 11 (2015). -7- accused and to conclude that the accused is lying to conceal his guilt.” Marable v. Commonwealth,

27 Va. App. 505, 509-10 (1998).

Finally, “[b]y finding the defendant guilty . . . the factfinder ‘has found by a process of

elimination that the evidence does not contain a reasonable theory of innocence.’” James v.

Commonwealth, 53 Va. App. 671, 681 (2009) (quoting Haskins v. Commonwealth, 44 Va. App. 1, 9

(2004)). That conclusion “is itself a ‘question of fact,’ subject to deferential appellate review.” Id.

(quoting Haskins, 44 Va. App. at 9). Of course, a factfinder “cannot ‘arbitrarily’ choose, as between

two equally plausible interpretations, one that incriminates the defendant.” Id. at 681-82 (quoting

Haskins, 44 Va. App. at 9). “The choice becomes arbitrary, however, only when ‘no rational

factfinder’ could believe the incriminating inferences and disbelieve the exculpatory inferences.”

Id. at 682 (emphasis omitted) (quoting Haskins, 44 Va. App. at 9). In this case, the circuit court

rejected Newkirk’s assertion that he was framed by “Poochie” as “incredible” and found that his

version of events “strained common belief.” We accept that finding as we must since “[t]he sole

responsibility to determine the credibility of witnesses, the weight to be given to their testimony,

and the inferences to be drawn from proven facts lies with the fact finder.” Blankenship v.

Commonwealth, 71 Va. App. 608, 619 (2020) (quoting Ragland v. Commonwealth, 67 Va. App.

519, 529-30 (2017)).

CONCLUSION

The evidence presented at trial sufficiently established that Newkirk possessed the

cocaine that was found behind the glove compartment in the Honda. Thus, we affirm his

conviction and remand to correct the clerical error in the final order.

Affirmed and remanded.

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