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the Virginia Court of Appeals.
COURT OF APPEALS OF VIRGINIA
Present: Judges Annunziata, Clements and Kelsey
Argued at Salem, Virginia
Record No. 2594-02-3
ALBERT WAYNE SAMPLE
COMMONWEALTH OF VIRGINIA
BY JUDGE D. ARTHUR KELSEY
DECEMBER 9, 2003
FROM THE CIRCUIT COURT OF GRAYSON COUNTY
J. Colin Campbell, Judge
R. Christopher Munique (Lacy, Campbell & Associates, on
Kathleen B. Martin, Assistant Attorney General (Jerry W.
Attorney General, on brief), for appellee.
A jury found Albert Wayne Sample guilty of possession of
Oxycodone, a Schedule II
controlled substance, with intent to distribute in violation of
Code ? 18.2-248(C). On appeal,
Sample contends that the evidence fails, as a matter of law, to
prove his intent to distribute beyond a
reasonable doubt. Finding no such error in the verdict, we
When examining a challenge to the sufficiency of the evidence on
appeal, "the evidence
and all reasonable inferences flowing therefrom must be viewed
in the light most favorable to the
prevailing party in the trial court." Commonwealth v.
Hudson, 265 Va. 505, 514, 578 S.E.2d
781, 786 (2003) (citations omitted). That principle requires us
to "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." Craddock
v. Commonwealth, 40 Va. App. 539, 542, 580 S.E.2d 454, 456
(2003) (citations omitted).
On April 22, 2003, a confidential informant told Glenn D. Hyatt,
chief investigator for
the Grayson County Sheriff’s Department, that a car had been
stolen in Maryland and would be
in the Grayson County area. The informant described the car as a
blue Ford Mustang, gave
Hyatt three specific locations where he might find it, and
stated that the car would contain two
bags of Oxycontin.
The next morning, Hyatt spotted a gray Mustang parked at the
residence of Mark Martin
Spicer, one of the locations provided by the informant. The
vehicle had Maryland tags. Hyatt,
who was off duty at the time, obtained the license plate number,
contacted the sheriff
department’s dispatcher by cell phone, and asked the
dispatcher to run the tags. Based on
information on the license plate number, the dispatcher advised
Hyatt that the vehicle had been
Hyatt and three deputies approached the residence and verified
the Mustang’s VIN.
Hyatt testified that "you could tell that the vehicle had
been primered" with gray paint. The
officers knocked on the door of the residence a number of times
with no response. Hyatt then
looked inside the vehicle’s passenger compartment and found an
unmarked, white envelope in
the console containing 8 "OC/80" pills and 51
"Percocet/7.5" pills. At this point, Sample came
out of the front door of the residence. Sample stated that he
had been driving the vehicle and
gave Hyatt the keys. Hyatt then placed Sample under arrest for
possession of stolen property.
On the way to Hyatt’s car, Sample spontaneously stated that
all of the property inside the
vehicle belonged to him. Hyatt drove Sample to the sheriff’s
department while the three deputies
conducted an inventory search of the vehicle and waited for a
tow truck to remove the vehicle
from the residence. During the inventory, the deputies found a
blue, plastic bag in the trunk that
contained an unmarked, white envelope with 21 "OC/80"
pills and 115 "Percocet/7.5" pills.
Sample went to trial before a jury on an indictment alleging
possession of Oxycodone, a
Schedule II controlled substance, with intent to distribute in
violation of Code ? 18.2-248(C). At
trial, the Commonwealth presented a certificate of analysis from
the state forensics laboratory
demonstrating that all but four of the pills contained
Oxycodone. Testifying as an expert
witness, Hyatt explained that Oxycodone is a "major abused
drug" in the illegal narcotics trade,
with the Percocet tablets selling for $10 per pill and the
Oxycontin "OC/80" tablets selling for
$80 a pill. The total street value of the Oxycodone pills found
in the Mustang, Hyatt estimated,
totaled $3,980. Hyatt also testified that he read Sample his
Miranda rights and took a statement
from him. In it, Sample specifically denied possessing any of
the narcotic tablets in the
Mustang. When presented with a written statement incorporating
his answers, however, Sample
refused to sign it.
In addition, the Commonwealth presented the testimony of Troy
Schroeder, who stated
that on April 22 Sample and two other men had visited him. They
arrived in a dark colored
Mustang driven by Sample. During the visit, the men put the car
in Schroeder’s garage and
painted it primer gray. Schroeder assumed the vehicle was Sample’s.
After the trial court denied Sample’s motion to strike the
PWID charge, Sample presented
testimony from Spicer, the owner of the residence. Spicer
confirmed that he accompanied
Sample to Schroeder’s house in a blue Mustang and that they
painted the car gray. He stated that
Sample drove the vehicle, Spicer sat in the passenger seat and
Spicer’s brother sat in the back
seat. Spicer claimed that his cousin, Ronald Jones, may have had
access to the stolen car during
the early morning hours of April 23. According to Spicer, Sample
stayed at the residence with
him on the night of April 22 and parked the Mustang in his
driveway that night. Spicer
hypothesized that his cousin, Ronald Jones, who sometimes visits
in the middle of the night,
might have gotten drunk and slept in the Mustang. Spicer thought
he had heard a car door shut
during the early morning hours, but he never saw Jones in the
In closing argument, Sample’s counsel argued that the
defendant did not possess the
drugs. "I submit to you," counsel argued, "those
drugs could have been put there by Mr. Jones."
Sample, his counsel argued, "didn’t know there was [sic] drugs in that car." Sample’s counsel
also contended that no evidence suggested that whoever possessed
the drugs did so with an intent
to distribute. Finding neither argument persuasive, the jury
found Sample guilty of possession
with intent to distribute.
During the sentencing phase of the bifurcated trial, Sample took
the stand in his own
defense. He claimed he possessed all of the pills lawfully,
having been prescribed them for a
back injury. "I was on prescription pain medications,"
Sample testified, "until I was arrested for
this crime." He relied on the medicines solely for
"pain management," he explained, not as a
means to "get high or to have fun or to sell and make
money." Sample, however, produced no
copies of the prescriptions; nor did he provide any testimony
from any physician corroborating
his claim. The jury recommended, and the trial judge imposed, a
twenty-year prison sentence
and a $250,000 fine. Sample now appeals to this Court, claiming
only that the
intent-to-distribute element of his conviction lacks a
sufficient factual basis.
When faced with a challenge to the sufficiency of the evidence,
we "presume the
judgment of the trial court to be correct" and reverse only
if the trial court’s decision is "plainly
wrong or without evidence" to support it. Kelly v.
Commonwealth, 41 Va. App. 250, 257, 584
S.E.2d 444, 447 (2003) (en banc) (citations omitted); see
also McGee v. Commonwealth, 25
Va. App. 193, 197-98, 487 S.E.2d 259, 261 (1997) (en banc).
On appeal from a jury verdict, Code ? 8.01-680 requires that
"we review the jury’s
decision to see if reasonable jurors could have made the choices
that the jury did make. We let
the decision stand unless we conclude no rational juror could
have reached that decision." Pease
v. Commonwealth, 39 Va. App. 342, 355, 573 S.E.2d 272, 278
(2002) (en banc), aff’d, 2003 Va.
LEXIS 95 (Va. Oct. 31, 2003). Under this standard, a reviewing
court does not "ask itself
whether it believes that the evidence at the trial
established guilt beyond a reasonable doubt."
Jackson v. Virginia, 443 U.S. 307, 318-19 (1979) (emphasis in
original and citation omitted).
We must instead ask whether "any rational trier of
fact could have found the essential
elements of the crime beyond a reasonable doubt." Kelly, 41
Va. App. at 257, 584 S.E.2d at 447
(quoting Jackson, 443 U.S. at 319 (emphasis in original and
internal quotation marks omitted));
see also Hoambrecker v. Commonwealth, 13 Va. App. 511, 514, 412
S.E.2d 729, 731 (1992)
(observing that question on appeal is whether "a rational
trier of fact could have found the
essential elements" of the convicted offense). "This
familiar standard gives full play to the
responsibility of the trier of fact fairly to resolve conflicts
in the testimony, to weigh the
evidence, and to draw reasonable inferences from basic facts to
ultimate facts." Kelly, 41
Va. App. at 257-58, 584 S.E.2d at 447 (quoting Jackson, 443 U.S.
To convict a defendant on the charge of possession of drugs with
intent to distribute, the
Commonwealth must prove that the defendant possessed illegal
drugs and that he did so with the
intent to distribute those drugs to others. See Code ?
18.2-248(C); Christian v. Commonwealth,
33 Va. App. 704, 716, 536 S.E.2d 477, 483 (2000) (en banc).
On appeal, Sample does not
contest that he possessed the drugs — only that he possessed
them with an intent to distribute.
Given the "difficulty of proving intent directly, the
Commonwealth may (and often must)
rely instead on circumstantial evidence." Craddock, 40 Va.
App. at 553, 580 S.E.2d at 461; see
also Askew v. Commonwealth, 40 Va. App. 104, 108, 578 S.E.2d 58,
"Circumstantial proof of a defendant’s intent includes
the quantity of the drugs discovered, the
packaging of the drugs, and the presence or absence of drug
paraphernalia." Askew, 40
Va. App. at 109, 578 S.E.2d at 61 (quoting Shackleford v.
Commonwealth, 32 Va. App. 307,
327, 528 S.E.2d 123, 133 (2000) (citations omitted), aff’d,
262 Va. 196, 547 S.E.2d 899 (2001)).
These indicia of intent, however, must be contexualized to the
specific drug at issue. For
example, with non-prescription drugs like crack cocaine, the
packaging factor focuses on
whether the evidence involves multiple, small, retail-sized bags
containing individual rocks
(usually possessed by street-level distributors) or
conspicuously large, wholesale-sized blocks of
precut crack (typically possessed by dealers higher up the chain
of distribution). See generally
Roger D. Groot, Criminal Offenses & Defenses in Virginia
144-45 (4th ed. 1998). For illegally
distributed prescription drugs, however, the packaging factor
takes into account the presence or
absence of pharmacy pill bottles or other forms of
pharmaceutical packaging. A properly labeled
prescription bottle may support an exculpatory inference of
personal use. On the other hand, the
possession of large amounts of prescription narcotics in
unmarked, unlabeled envelopes or bags
may give rise to an inculpatory inference which, coupled with
other incriminating evidence, may
prove an intent to distribute.
In addition, the amount of drugs seized from an individual can
itself be a dispositive
factor. See, e.g., Hunter v. Commonwealth, 213 Va. 569, 570, 193
S.E.2d 779, 780 (1973)
(observing that quantity "is a circumstance which, standing
alone, may be sufficient to support a
finding of intent to distribute"). "‘Possession of a
quantity greater than that ordinarily possessed
for one’s personal use may be sufficient to establish an
intent to distribute it.’" Askew, 40
Va. App. at 109, 578 S.E.2d at 60-61 (quoting Gregory v.
Commonwealth, 22 Va. App. 100,
110, 468 S.E.2d 117, 122 (1996) (finding sufficient evidence of
intent to distribute based on
possession of seven small bags containing a total of 3.7 grams
of cocaine), and Iglesias v.
Commonwealth, 7 Va. App. 93, 110, 372 S.E.2d 170, 180 (1988) (en
banc)). The amount may
be quantified in terms of weight, number of units, and street
value. See, e.g., Shackleford, 32
Va. App. at 327, 528 S.E.2d at 133.
The totality of the circumstances in this case supports the
rationality of the jury’s verdict
on the intent-to-distribute element of Sample’s conviction.
Sample had driven a reportedly
stolen car to Grayson County and then repainted the vehicle in
an effort at evasion. In the car,
Sample carried nearly $4,000 worth of addictive prescription
narcotics. The 195 tablets were not
packaged in prescription pill bottles or pharmacy bags, but
divided between two unmarked
envelopes. The quantity and street-value of the narcotics,
coupled with their non-pharmaceutical
method of packaging, provide a sufficient factual basis for the
jury’s finding that Sample
possessed the drugs with an intent to distribute.
Despite the incriminating evidence against him, however, Sample
contends the jury
arbitrarily disregarded the reasonable hypothesis of innocence
that he "possessed the medications
for his own personal use."
We disagree. Sample’s own evidence excluded this possibility. His
only witness, Mark Spicer, asserted that the drugs likely
belonged to his cousin and were
somehow planted in the parked vehicle during the night. In his
closing argument, Sample’s
counsel argued this hypothesis and never once intimated the
factually inconsistent assertion that
Sample possessed the prescription pills for medicinal purposes.
Sample, his counsel argued,
"didn’t know there was [sic] drugs in that car."
Having taken this position at trial, he cannot now
assert on appeal a new hypothesis in an effort to vacate his
conviction. On appeal, "the issue of
exclusion of reasonable theories of innocence is limited to
those theories advanced by the
accused at trial." Hudson, 265 Va. at 514, 578 S.E.2d at
Even if Sample had asserted the personal-use hypothesis at
trial, the jury would have had
ample reason to reject it. The Commonwealth "need only
exclude reasonable hypotheses of
innocence that flow from the evidence, not those that spring
from the imagination of the
defendant." Welshman v. Commonwealth, 28 Va. App. 20, 36,
502 S.E.2d 122, 130 (1998) (en
banc) (citations and internal quotation marks omitted); see
also Agee v. Commonwealth, 40
Va. App. 123, 128, 578 S.E.2d 68, 70 (2003). No evidence in the
guilt phase of the case
suggested that Sample had a physical condition warranting the
use of such powerful pain
medication or had a prior prescription from a physician. To the
contrary, in his post-arrest
statement to police, Sample denied possessing the narcotics for
any reason. Implicit in this
assertion is that he was not using the drugs for medicinal
purposes. The jury was at liberty to
disbelieve Sample’s outright denial of possession of the
narcotics, but nonetheless accept it as a
half-truth — an implicit admission that, at any rate, he did
not possess the pills for medical
Under settled principles, whether an alternative hypothesis of
innocence is reasonable is a
"question of fact." Pease, 39 Va. App. at 355, 573
S.E.2d at 278. A factfinder’s rejection of a
hypothesis of innocence "is binding on appeal unless
plainly wrong." Christian, 33 Va. App. at 715,
536 S.E.2d at 483 (citation omitted). We examine the
reasonableness of the hypothesis not in an
abstract sense, but at the level of specificity shown by the
unique facts and circumstances of the
case. See Hudson, 265 Va. at 516, 578 S.E.2d at 787. The
question then becomes whether a
"rational" factfinder, facing the evidence before it,
could have reached the decision that it did.
Pease, 39 Va. App. at 355, 573 S.E.2d at 278; see also Hudson,
265 Va. at 513, 578 S.E.2d at
785-86 (observing that the issue is whether a
"reasonable" factfinder could have rejected the
hypothesis of innocence).
Based upon the record before us, we find that the jury’s
finding of guilt beyond a reasonable
doubt rests on a sufficient foundation of inculpatory evidence.
The rationality of the verdict extends
to the intent-to-distribute element of the conviction, as well
as the jury’s rejection of any reasonable
hypotheses of innocence that could be derived from the evidence.
Finding the evidence of guilt sufficient to support the
intent-to-distribute element of Code
? 18.2-248(C), we affirm Sample’s conviction.
Clements, J., dissenting.
On appeal, Sample does not dispute the finding that he
unlawfully possessed the
Oxycodone pills that are the subject of this case. He contends,
rather, that the Commonwealth
failed to meet its burden of proving he intended to distribute
the Oxycodone pills because no
expert testimony was offered to show that the quantity and
packaging of those pills was
consistent with distribution and inconsistent with personal use.
Such expert testimony was
necessary, he argues, because the facts and circumstances
regarding the illegal use and
distribution of Oxycodone are not within the common knowledge or
experience of the average
lay juror. I agree. I would hold, therefore, that the evidence
was insufficient for the jury to
convict Sample of possession of Oxycodone with intent to
distribute, in violation of Code
? 18.2-248(C). Accordingly, I respectfully dissent from the
To sustain Sample’s conviction in this case, the Commonwealth
had the burden of proving
beyond a reasonable doubt that Sample intended to distribute the
Oxycodone pills found in his
possession. See Servis v. Commonwealth, 6 Va. App. 507, 524, 371
S.E.2d 156, 165 (1988)
("Where an offense consists of an act combined with a
particular intent, proof of the intent is
essential to the conviction."); Code ? 18.2-248(A), (C).
"Because direct proof of intent [to
distribute drugs] is often impossible, it [usually] must be
shown by circumstantial evidence."
Servis, 6 Va. App. at 524, 371 S.E.2d at 165. Circumstantial
evidence is sufficient to sustain a
conviction if it excludes all "reasonable hypotheses that
flow from the evidence." Hamilton v.
Commonwealth, 16 Va. App. 751, 755, 433 S.E.2d 27, 29 (1993).
"Circumstantial proof of a defendant’s intent includes
the quantity of the drugs
discovered [and] the packaging of the drugs . . . ."
Shackleford v. Commonwealth, 32 Va. App.
307, 327, 528 S.E.2d 123, 133 (2000), aff’d, 262 Va. 196, 547
S.E.2d 899 (2001). "[P]ossession
of a quantity greater than that ordinarily possessed for one’s
personal use may be sufficient to
establish an intent to distribute it." Monroe v.
Commonwealth, 4 Va. App. 154, 156, 355 S.E.2d
336, 337 (1987). Likewise, possession of drugs packaged in a
manner consistent with
distribution and inconsistent with personal use may indicate an
intent to distribute the drugs. See
Shackleford, 32 Va. App. at 327, 528 S.E.2d at 133; Monroe, 4
Va. App. at 156, 355 S.E.2d at
337 (noting that, "even if the substance is packaged for
distribution, there must be additional
evidence to preclude the inference that it was . . . in the
packaged form for personal use rather
than being held in that fashion for distribution").
"Expert testimony, usually that of a police
officer familiar with narcotics, is routinely offered to prove
the significance of the [quantity] and
packaging of drugs regarding whether it is for personal
use." Shackleford, 32 Va. App. at 327,
528 S.E.2d at 133.
Here, there was no direct evidence presented at trial that
Sample distributed or intended
to distribute the Oxycodone pills found in his possession. As
relevant to this appeal, the
circumstantial evidence presented by the Commonwealth
established that Sample illegally
possessed a total of 29 "OC/80" pills and 166
"Percocet/7.5" pills. Of those 195 pills, all but 
contained Oxycodone, a Schedule II controlled substance. The
pills were discovered inside two
unmarked, white envelopes in the car driven by Sample. One of
the envelopes was found in the
car’s front console, and the other was found in the car’s
trunk inside a plastic bag containing
clothes and other personal items. The envelope in the console
was open and contained 8
"OC/80" pills and 51 "Percocet/7.5" pills.
The envelope in the trunk was sealed and contained
21 "OC/80" pills and 115 "Percocet/7.5"
pills. Investigator Hyatt, who qualified as an expert
witness, testified that Oxycodone had become a "major
abused drug" in the "last few years" and
that the total "street value" of the pills found in
the car was $3,980.4
Investigator Hyatt, however, did not testify that the quantity
and packaging of the
Oxycodone pills in Sample’s possession were consistent with
distribution and inconsistent with
personal use. Indeed, the Commonwealth offered no evidence
regarding the significance of the
quantity or packaging of the Oxycodone pills.
The dispositive question, then, is whether the circumstantial
evidence presented by the
Commonwealth would permit the jury to reasonably infer, without
expert testimony, that Sample
intended to distribute the Oxycodone pills he illegally
possessed. Expert testimony is necessary
when the jury
"is confronted with issues which require scientific or
knowledge or experience in order to be properly understood, and
which cannot be determined intelligently merely from the
deductions made and inferences drawn on the basis of ordinary
knowledge, common sense, and practical experience gained in the
ordinary affairs of life."
Compton v. Commonwealth, 219 Va. 716, 726, 250 S.E.2d 749,
755-56 (1979) (quoting 31 Am.
Jur.2d Expert and Opinion Evidence ? 16 (1967) (footnote
omitted)). Conversely, "[e]xpert
testimony is not required, indeed is inadmissible, in cases in
which the facts and circumstances
are within the common understanding and experience of the
average lay juror." Nelson v.
Commonwealth, 235 Va. 228, 236, 368 S.E.2d 239, 244-45 (1988).
We have previously recognized the need for expert testimony in
cases such as this,
because a trier of fact’s "‘common experience’
teaches little or nothing" on the subject of the
"methodology used in selling controlled substances."
Morton v. Commonwealth, 13 Va. App. 6,
11, 408 S.E.2d 583, 585 (1991). In Hudak v. Commonwealth, 19 Va.
App. 260, 262-63, 450
S.E.2d 769, 771 (1994), for example, we found the issues with
which the jury was confronted
relating to the consumption and distribution of LSD were beyond
the jury’s realm of common
knowledge and experience. Because the Commonwealth offered no
expert testimony on those
issues to assist the jury, we found the evidence insufficient to
support the appellant’s conviction
for conspiracy to distribute LSD. Id. at 262-63, 450 S.E.2d at
770-71. Rejecting the
Commonwealth’s argument that the "appellant knew or
should have known that [the alleged
co-conspirator] was redistributing LSD because [the] appellant
sold [the alleged co-conspirator]
2,000 hits of LSD on one occasion," we held as follows:
[N]o testimony was introduced to prove [the alleged
co-conspirator’s] level of personal consumption, how often
alleged co-conspirator] consumed LSD, how powerful one LSD
"dose" is, [or] how long unused LSD can be stored
before it loses
it potency . . . . Under the facts of this case, without more
compelling evidence in the record, expert testimony on these
was necessary to establish that [the] appellant knew or should
known that [the alleged co-conspirator] was distributing LSD.
Without any expert testimony from the Commonwealth as to these
(and other related) issues, the jury was without evidence to
conclude that the 2,000 hits of LSD were not for [the alleged
co-conspirator’s] personal use.
Id. at 262-63, 450 S.E.2d at 771.
Plainly, the use and distribution of Oxycodone are matters that
lie outside the range of the
common knowledge and experience of an average lay juror,
particularly when, as here, the use
and distribution involved are purportedly illegal. In this case,
the Commonwealth presented no
evidence regarding Sample’s personal consumption of Oxycodone.
Commonwealth presented no expert testimony regarding the potency
or typical dosage of the
Oxycodone pills found in Sample’s possession, the quantity of
Oxycodone pills normally
consumed or possessed by one illegally using that controlled
substance, or the respective
packaging methods typically used by those who illegally possess
Oxycodone pills for their own
use and those who illegally distribute Oxycodone pills to
others. Without expert testimony to
assist it in understanding those issues, the jury could only
speculate as to the significance of the
quantity and packaging of the Oxycodone pills in this case.
I conclude, therefore, that expert testimony was required to
assist the jury understand the
significance, if any, of the quantity and packaging of the
Oxycodone pills found in Sample’s
possession in determining whether Sample intended to distribute
the pills or retain them for
personal use. The jury could not reasonably infer from the
evidence presented that the quantity
of Oxycodone pills illegally possessed by Sample and the
packaging of those pills were
consistent with distribution and inconsistent with personal use.
"Where an inference supporting
guilt is no more likely to arise from a proven fact than one
favoring innocence, the inference of
guilt is impermissible." Morton, 13 Va. App. at 11, 408
S.E.2d at 586.
For these reasons, I would conclude the Commonwealth failed to
prove beyond a
reasonable doubt that Sample had the requisite intent to
distribute the Oxycodone pills he
illegally possessed. See Patterson v. Commonwealth, 215 Va. 698,
699, 213 S.E.2d 752, 753
(1975) (holding that a finding of intent may not "be based
upon surmise or speculation"). I
would hold, therefore, that the evidence presented at trial was
insufficient, as a matter of law, to
sustain Sample’s conviction.
Accordingly, I would reverse Sample’s conviction for
possession of Oxycodone, a
Schedule II controlled substance, with intent to distribute, in
violation of Code ? 18.2-248(C),
and remand the case for further proceedings, if the Commonwealth
be so advised.
Code ? 17.1-413, this opinion is not designated for publication.
appears to rest its conclusion on the hypothesis of innocence (on the
intent-to-distribute element of the charge) that Sample
illegally obtained and used these narcotics
outside the parameters of a physician prescribed regime of
medication. Sample, however, never
argued that hypothesis in the trial court. Indeed, his own
testimony during the penalty phase
directly asserted the opposite by claiming he obtained the
medicines pursuant to a prescription
for back pain and used these medicines in accord with the
recommended dosage for "pain
management." He specifically denied unlawfully obtaining or
using the pills to "get high."
Sample did not change course on appeal. Here, too, he has argued
only the hypothesis that he
possessed and used the pills as "medications." This
disconnect in the specific hypothesis under
review accounts for the dissent’s inability to find a
"basis in logic" for the inferences available
from the non-pharmaceutical packaging used to store the
medicines. Ante, at 14 n.5.
need not decide between rejecting or accepting a witness’s testimony in
full, but may find it credible in part and incredible in part.
Montague v. Commonwealth, 40
Va. App. 430, 436, 579 S.E.2d 667, 669 (2003); see also Barrett
v. Commonwealth, 231 Va. 102,
107, 341 S.E.2d 190, 193 (1986) (recognizing that jurors
"have the right to reject that part of the
evidence believed by them to be untrue and to accept that found
by them to be true. In so doing,
they have broad discretion in applying the law to the facts and
in fixing the degree of guilt, if
any, of a person charged with a crime."); Rollston v.
Commonwealth, 11 Va. App. 535, 547, 399
S.E.2d 823, 830 (1991) (noting that a jury is not required to
"accept in toto an accused’s
statement, but may rely on it in whole, in part, or reject it
Hudak v. Commonwealth, 19 Va. App. 260, 450 S.E.2d 769 (1994), the
dissent contends that the conviction cannot stand absent expert
testimony. Hudak involved a
conspiracy charge, however, and the question on appeal dealt
only with the defendant’s
knowledge of his alleged co-conspirator’s drug distribution
activities. Hudak did not involve a
possession-with-intent charge and has never been cited as
providing guidance for the use or
disuse of expert testimony in such cases.
also finds the following evidence relevant to the outcome of this appeal:
(1) that the car in which the Oxycodone pills were found had
been reportedly stolen and
repainted; (2) that, following the discovery of those pills,
Sample told Investigator Hyatt they
were not his; and (3) that Sample’s sole witness, Mark Spicer,
hypothesized that the drugs found
in the car might be his cousin’s. While this evidence may have
been relevant at trial to the
question of whether Sample illegally possessed the Oxycodone
pills, I believe it has little, if any,
bearing on the intent-to-distribute issue before us on appeal.
the absence of expert testimony on the subject of packaging, the
majority concludes that the fact Oxycodone pills were found in
plain, unmarked, unlabeled
envelopes, rather than properly labeled prescription pill
bottles or pharmacy bags, supports the
inference that Sample intended to distribute the Oxycodone
pills. Such a conclusion is amiss, in
my view, not only because, as I noted above, it has no basis in
the common knowledge and
experience of an ordinary juror, but also because it has no
basis in logic. Again, the issue here is
not whether Sample illegally possessed the Oxycodone pills, but
whether, having illegal
possession of the pills, he intended to distribute them. Thus,
while I agree with the majority’s
opinion that "[a] properly labeled prescription bottle may
support an exculpatory inference of
personal use," I do not believe it necessarily follows that
keeping illegally possessed Oxycodone
pills in unmarked, unlabeled envelopes is indicative of the
possessor’s intent to distribute those
drugs rather than use them personally. Plainly, one who
illegally obtains Oxycodone pills for his
or her own use (e.g., by theft, purchase from an
unauthorized distributor, or with an invalid
prescription) would not normally have the wherewithal to then
place those pills in a properly
labeled prescription bottle or pharmacy bag.
this conclusion, I am not suggesting that expert testimony is required in
every case where the accused’s intent to distribute is at issue.
Here, however, as discussed
above, the particular facts of this case make such testimony