Virginia Lawyers Weekly VA Lawyers Weekly
A defendant cannot overturn his conviction for possession of heroin with intent to distribute by claiming the trial court erred in considering 10 plastic bag corners as evidence of intent because the content of only five of the bag corners testified positive for heroin; the Court of Appeals says the totality of the circumstances, without chemical confirmation of the contents of the untested packages of suspected heroin, is sufficient to support the finding of intent to distribute.
Defendant also challenges admission of a detective’s statement that he was familiar with defendant because the detective “had made a controlled purchase of narcotics from him sometime prior,” as impermissible crimes evidence. The evidence was used to establish the detectives familiarity with defendant and the trial court did not indicate it used the challenged evidence for an improper purpose, so its admission was not error.
The court also rejects as without merit defendant’s claim that the current primary offense was incorrectly scored under the sentencing guidelines as two counts of possession with intent to distribute, second or subsequent offense. The trial court imposed a sentence of 20 years for possession of cocaine with intent to distribute, 15 years for possession of heroin with intent to distribute, and five years for possession of a controlled substance with intent to distribute within 1,000 feet of a school. These sentences were well within the statutory sentencing range established by the General Assembly and thus outside the scope of our review.
Finally, the trial court did not err in accepting the detective’s testimony as an expert on gang culture, based on his four-year assignment to, and specialized training for, the gang unit of the Richmond Police Department. Based on the detective’s experience, he could testify that members of the “Ville Boys” gang had tattoos on their bodies similar to defendant’s tattoo of the name of the gang.
Convictions affirmed.
Murphy v. Commonwealth (Elder, J.) No. 0485-09-2, March 23, 2010; Richmond Cir.Ct. (Cavedo) Catherine M. French, APD, for appellant; Robert H. Anderson III, Sr. AAG, for appellee. VLW 010-7-114(UP), 12 pp.
