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COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Benton and Clements
Argued at Alexandria, Virginia
Record No. 2578-02-4
JESSE LIGHTNER PARK
COMMONWEALTH OF VIRGINIA
BY CHIEF JUDGE JOHANNA L. FITZPATRICK
DECEMBER 2, 2003
FROM THE CIRCUIT COURT OF STAFFORD COUNTY
James W. Haley, Jr., Judge
Marvin D. Miller (Terri J. Harris; Law Offices of Marvin D.
Miller, on briefs), for appellant.
Kathleen B. Martin, Assistant Attorney General (Jerry W.
Attorney General, on brief), for appellee.
Jesse Lightner Park (appellant) appeals his conviction for
possession with intent to distribute
marijuana in violation of Code ? 18.2-248.1. Appellant contends
that the circumstantial evidence
used to convict him did not exclude every reasonable hypothesis
of innocence. He further
contends that the trial court imposed an invalid sentence by
sentencing him to an indefinite
period of probation. For the following reasons, we affirm.
On appeal the evidence and all reasonable inferences flowing
therefrom must be viewed
in the light most favorable to the prevailing party below, the
Commonwealth. Derr v.
Commonwealth, 242 Va. 413, 424, 410 S.E.2d 662, 668 (1991);
Archer v. Commonwealth, 26
Va. App. 1, 11, 492 S.E.2d 826, 831 (1997).
At trial, appellant conceded that
he was in possession of the marijuana and was in possession of
approximately three thousand dollars and we are not contesting
stop . . . . What we are asking your Honor to do is to make one
three decisions . . . either he was in possession with intent to
distribute less than one to ten, as charged in the indictment,
was in simple possession, or he was in possession with intent to
distribute as an accommodation.
The amount of marijuana seized was 11.58 ounces. Appellant also
stipulated to the
admissibility of a cell phone, the lab report, an "owe
sheet," currency, and baggies.
Additionally, Sheriff McDowell (McDowell) found $1,102 in
appellant’s wallet which was in the
passenger seat of the vehicle, and $2,204 in his front left
Appellant stipulated that Detective Eric Jesse (Jesse) would
testify that possession of one
ounce or less of marijuana suggests personal use and that
possession of a pound is inconsistent
with personal use. However, "he has on occasion seen
marijuana in that amount" for personal
use. Appellant also stipulated that Jesse would testify that the
value of the 11.58 ounces of
marijuana that appellant possessed had a value of between $1,200
and $4,000, depending on the
market. The marijuana, money, cell phone, baggies, and papers
were admitted into evidence, but
the Commonwealth presented no additional testimony connecting
these items to the process of
Appellant called one witness, William Spinks (Spinks), who
testified that he had known
appellant for about 15 years and that he used to smoke
marijuana, but had quit since his daughter
was born. Spinks further testified that when he did smoke
marijuana, he smoked an ounce in
about four days, and purchased both pounds and ounces for
personal use. Spinks testified that he
purchased a Yamaha four-wheeler from appellant on September 17,
2001, the same day
appellant was arrested, and paid him $3,000 in cash. On
cross-examination, Spinks testified that
he did not remember the denominations of bills he gave appellant
when purchasing the
four-wheeler. He also testified that he did not notice what
appellant did with the money after
Spinks gave it to him. Spinks had no bill of sale for the
Appellant argued at trial that the evidence was insufficient to
convict him of possession
with intent to distribute the marijuana because the Commonwealth
failed to connect the
stipulated evidence to the intent to distribute and that
quantity alone was insufficient to establish
intent to distribute.
The trial court found appellant guilty of possession with intent
to distribute, and noted
that the evidence established that appellant had over $3,000 in
cash separated from his pocket
and wallet, and the amount of marijuana found was 11.58 ounces.
The trial court also found that
Spinks’ testimony regarding the four-wheeler sale was not
credible. The trial court found
appellant guilty and sentenced him to ten years in prison, and
suspended seven years of the
sentence conditioned upon good behavior for twenty years. The
court sentenced appellant to
supervised probation "for an indefinite period, or unless
sooner released by the court or by the
II. SUFFICIENCY OF EVIDENCE
"When the sufficiency of the evidence is challenged on
appeal, we determine whether the
evidence, viewed in the light most favorable to the prevailing
party, the Commonwealth, and the
reasonable inferences fairly deducible from that evidence
support each and every element of the
charged offense." Haskins v. Commonwealth, 31 Va. App. 145,
149-50, 521 S.E.2d 777, 779
(1999). "In so doing, we must discard the evidence of the
accused in conflict with that of the
Commonwealth, and regard as true all the credible evidence
favorable to the Commonwealth and
all fair inferences that may be drawn therefrom." Watkins
v. Commonwealth, 26 Va. App. 335,
348, 494 S.E.2d 859, 866 (1998).
Circumstantial evidence may establish the elements of a crime,
provided it excludes
every reasonable hypothesis of innocence. See, e.g., Tucker v.
Commonwealth, 18 Va. App.
141, 143, 442 S.E.2d 419, 420 (1994). "The statement that
circumstantial evidence must exclude
every reasonable theory of innocence is simply another way of
stating that the Commonwealth
has the burden of proof beyond a reasonable doubt."
Commonwealth v. Hudson, 265 Va. 505,
513, 578 S.E.2d 781, 785 (2003). This Court must determine
"not whether ‘there is some
evidence to support’" appellant’s hypothesis of
innocence, but, rather, "whether a reasonable
[fact finder], upon consideration of all the evidence, could
have rejected [appellant’s] theories
. . . and found him guilty . . . beyond a reasonable
doubt." Id. Whether a hypothesis of
innocence is reasonable is a question of fact, see Cantrell v.
Commonwealth, 7 Va. App. 269,
290, 373 S.E.2d 328, 339 (1988), and a finding by the trial
court is binding on appeal unless
plainly wrong, see Glasco v. Commonwealth, 26 Va. App. 763, 774,
497 S.E.2d 150, 155 (1998).
"Circumstances relevant to proof of an intent to distribute
include the quantity of drugs
and cash possessed, the method of packaging, and whether
[defendant] himself used drugs."
Jones v. Commonwealth, 23 Va. App. 93, 100, 474 S.E.2d 825, 828
(1996) (internal quotations
and citation omitted). Appellant contends that the
circumstantial evidence used to convict him
did not exclude every reasonable hypothesis of innocence. We
Appellant stipulated that he was in possession of nearly a pound
of marijuana and that
this amount was ordinarily inconsistent with personal use.
"Possession of a quantity greater than
that ordinarily possessed for one’s personal use may be
sufficient to establish an intent to
distribute." Gregory v. Commonwealth, 22 Va. App. 100, 110,
468 S.E.2d 117, 122 (1996).
Although Detective Jesse testified that he has, on occasion,
seen nearly a pound of marijuana
designated for personal use, this is generally not the case.
However, no paraphernalia to smoke
the marijuana was found. See Askew v. Commonwealth, 40 Va. App.
104, 108, 578 S.E.2d 58,
60 (2003) (absence of paraphernalia is "regularly
recognized" as a factor indicating intent to
distribute); Glasco, 26 Va. App. at 775, 497 S.E.2d at 156.
Additionally, appellant had over $3,000 in cash divided between
$1,102 found in his
wallet on the passenger seat of the vehicle, and $2,204 found in
his front left pocket. See id.
(possession of a large sum of money ($650) "regularly
recognized as [a factor] indicating an
intent to distribute"); Christian v. Commonwealth, 33 Va.
App. 704, 716, 536 S.E.2d 477, 483
(2000) ($935). The only evidence appellant offered to explain
the presence of such a large
amount of cash was the testimony of William Spinks, who claimed
that he had given appellant
over $3,000 to purchase a "four-wheeler." The trial
court found Spinks’ testimony not to be
credible. See id. Thus, the trial court reasonably inferred that
the presence of $3,000 in cash
supported its finding that appellant intended to distribute the
marijuana in his possession. Even
assuming the Commonwealth failed to present evidence that the
stipulated "owe sheet" was a
drug "owe sheet," a reasonable fact finder upon
consideration of all the evidence could find him
guilty beyond a reasonable doubt.
Appellant also contends that he was sentenced to an improper
period of probation. The
Commonwealth argues that the appellant’s assignment of error
is procedurally barred because he
failed to timely object to the sentence. Because appellant did
not preserve this issue at trial, it is
"No ruling of the trial court will be considered as a basis
for reversal unless the objection
was stated together with the grounds therefor at the time of the
ruling, except for good cause
shown or to enable the Court of Appeals to attain the ends of
justice." Rule 5A:18. See Jacques
v. Commonwealth, 12 Va. App. 591, 593, 405 S.E.2d 630, 631
(1991) (citing Rule 5A:18).
Therefore, appellant’s argument on appeal is procedurally
barred by Rule 5A:18.
The ends of justice exception to Rule 5A:18 does not apply.
"The ends of justice
exception is narrow and is to be used sparingly." Brown v.
Commonwealth, 8 Va. App. 126,
132, 380 S.E.2d 8, 10 (1989). In order to avail oneself of the
exception, a defendant must
affirmatively show that a miscarriage of justice has occurred,
not that a miscarriage might have
occurred. Mounce v. Commonwealth, 4 Va. App. 433, 436, 357
S.E.2d 742, 744 (1987). The
trial error must be "clear, substantial and material."
Brown, 8 Va. App. at 132, 380 S.E.2d at 11;
Redman v. Commonwealth, 25 Va. App. 215, 221, 487 S.E.2d 269,
No miscarriage of justice has occurred in this case. The trial
court’s sentencing order
specifically limits the period of supervised probation to twenty
years or less, in accordance with
the specified length of the suspension period.
We therefore affirm the trial court.
Benton, J., dissenting.
At the guilt phase of the trial, the prosecutor submitted the
Commonwealth’s case for the
judge’s decision upon only a stipulation of evidence and
tangible exhibits. Jesse Lightner Park
stipulated that he possessed 11.58 ounces of marijuana when the
officer stopped him on
September 17, 2001 in an automobile and that the marijuana had a
value between $1,200 and
$4,000. He also stipulated that the arresting officer would
testify this amount is inconsistent with
personal use but that the officer additionally would testify he
"has on occasion seen marijuana in
that amount" for personal use. Park stipulated that the
officer found somewhere in his
automobile a cellular telephone, baggies, and two pieces of
paper, which the judge described as
[The officer found] . . . two pieces of paper, one of which
deals with income and assets and expenses paid, the second of
which is a piece of paper with a number of names on it — one,
three, four, five, six, seven, eight, nine, ten — ten names
various sums across from those names, from a larger or lesser
sum. . . .
These names, accordingly — your client’s friend, who had
known him for fifteen years, was not familiar with any of these
individuals or their names.
Park further stipulated that he had slightly in excess of $3,000
in his wallet and his
pocket. The evidence at the guilt phase of the trial did not
include any statements that Park may
have made to the arresting officer. Furthermore, the prosecutor
did not present testimony from
the arresting officer or any other witness.
Park’s witness testified that he had purchased a
"four-wheeler" Yamaha vehicle from
Park the day Park was arrested. He testified that he gave Park
$3,000 cash for the purchase of
the vehicle. Park’s witness also testified that, in the past,
he had purchased marijuana for his
own use in quantities of both "a pound or an ounce,
depending on how much [he] could afford."
Reflecting an obvious market reality and risk, he testified that
"if you buy it larger, as in the
pound, then its cheaper on you . . . and then you don’t have
to go back and buy it as many
"The Commonwealth had the burden to prove beyond a
reasonable doubt that [Park]
possessed the marijuana with intent to distribute." Dukes
v. Commonwealth, 227 Va. 119, 123,
313 S.E.2d 382, 384 (1984). Thus, the principle is well
established that when "the circumstantial
evidence of such intent, when viewed in the light most favorable
to the Commonwealth, fails to
‘exclude every reasonable hypothesis of innocence,’"
the Commonwealth has not met its burden
of proof. Id.
The Commonwealth asserts that the officer’s stipulated
testimony establishes the amount
of marijuana was inconsistent with personal use. The record,
however, establishes that the
stipulation rendered this issue in a state of equipoise because
the stipulation also contained the
officer’s view that, in his experience, this amount of
marijuana has been possessed for personal
use. Thus, "this is a case where the prosecution has
presented . . . two different accounts of the
essential facts relating to a crucial element of the
crime." Moore v. Commonwealth, 254 Va.
184, 189, 491 S.E.2d 739, 742 (1997). The principle has long
been established that "‘where a
fact is equally susceptible of two interpretations one of which
is consistent with the innocence of
the accused, [the trier of fact] cannot arbitrarily adopt that
interpretation which incriminates
him.’" Corbett v. Commonwealth, 210 Va. 304, 307, 171
S.E.2d 251, 253 (1969) (citation
omitted). The stipulated evidence, therefore, logically
established that the amount of marijuana
was not inconsistent with possession for personal use.
The other evidence in the record is equally deficient and fails
to satisfy the
Commonwealth’s burden to establish beyond a reasonable doubt
that Park intended to distribute
the marijuana. No evidence in the record established that the
papers bore any connection to the
marijuana or to Park’s intent to use the marijuana. The trial
judge’s observation about these
exhibits, that one related to "income and assets and
expenses" and that the other contained "ten
names with various sums across from those names," is
nothing more that a vague description of
the papers and discloses no relationship between the nature of
the writings and the fact to be
proved. One exhibit, which is a paper containing ten names and
some numbers, does not
establish money was owed to anyone. Even if the figures are
assumed to represent money, the
paper does not indicate how much money was owed to whom and for
what purpose. The other
exhibit is an 8×11 pad of lined paper with notations under items
designated "car insurance,"
"grocerys," "invest/bank," "paid
Buddy," "rent," "save," "mom paid,"
"started work," and "pay
date." Absent some connective evidence, the judge merely
engaged in "speculation and
conjecture" in concluding that these papers related to an
intent to distribute the marijuana.
Wright v. Commonwealth, 217 Va. 669, 670, 232 S.E.2d 733, 734
(1977). "Suspicion, no matter
how strong, is not enough. Convictions cannot rest upon
speculation and conjecture." Littlejohn
v. Commonwealth, 24 Va. App. 401, 415, 482 S.E.2d 853, 860
(1997) (citation omitted).
Likewise, proof that Park possessed $3,000 merely raises the
opportunity to speculate
about its origin or its intended use. The Commonwealth advanced
no evidence or argument to
tie the money to the marijuana Park possessed or to prove the
requisite element of intent. The
trial judge’s rejection of Park’s witness’ testimony that,
earlier on the day of Park’s arrest, he had
purchased a vehicle from Parks for $3,000 cash, does not provide
a factual basis for establishing
that the money was someway connected to an intent to distribute
the marijuana. See Tarpley v.
Commonwealth, 261 Va. 251, 256-57, 542 S.E.2d 761, 764 (2001).
Even on appeal, the
Commonwealth merely makes the assertion that "possession of
a large amount of cash — $3306
– was a further factor establishing intent to distribute."
Only by speculation could the trier of
fact conclude the cash somehow is related to the marijuana in
Park’s possession or Park’s intent.
In a similar vein, it seems almost too simplistic to say that in
the year 2003 the possession of a
cellular telephone proves nothing more than the fact that Park
uses it, as do an increasing number
of people, as a means of communication.
Simply put, the Commonwealth relies on suspicious circumstances
and leaps of logic to
make the connections needed to establish the necessary element
It is well settled in Virginia that to justify conviction of a
crime, it is not sufficient to create a suspicion or probability
guilt, but the evidence must establish the guilt of an accused
beyond a reasonable doubt. It must exclude every reasonable
hypothesis except that of guilt. The guilt of a party is not to
inferred because the facts are consistent with his guilt, but
must be inconsistent with his innocence.
Cameron v. Commonwealth, 211 Va. 108, 110-11, 175 S.E.2d 275,
276 (1970) (citations
omitted). At trial, the prosecutor presented stipulated facts of
circumstances that, while
interesting, do not tend to do more than present a hypothesis of
I would hold that the stipulated evidence was insufficient to
prove beyond a reasonable
doubt that Park had the intent to distribute the marijuana. The
evidence in this case is not
inconsistent with the hypothesis that Park possessed the
marijuana for his personal use.
Therefore, I would reverse the conviction for possession with
intent to distribute and remand to
the trial court.
Code ? 17.1-413, this opinion is not designated for publication.