Virginia Lawyers Weekly VA Lawyers Weekly
Where appellant was convicted of possession with intent to distribute cocaine, there was sufficient circumstantial evidence that he possessed the cocaine. Further, intent to distribute was established by an expert’s testimony that the way the cocaine was packaged and the quantity involved, along with the fact that appellant did not possess anything to ingest the cocaine, were all inconsistent with personal use.
Circumstantial evidence
“There are multiple pieces of circumstantial evidence which could lead a rational fact-finder to believe beyond a reasonable doubt that appellant possessed the cocaine. [Officer] Moorman testified that appellant was acting suspiciously from the beginning of the traffic stop.
“Appellant immediately exited his vehicle and was ‘blading’ his body, attempting to hide his left hand from Moorman, which Moorman noticed held a plastic bag.
“Then, when Moorman moved around appellant to show that appellant’s headlight was out, appellant moved his hand holding the bag into his coat pocket. Moorman again noticed the same plastic bag in his coat pocket.
“When Moorman asked appellant what was in his pocket, appellant immediately fled, further providing evidence of his guilt. …
“The trial court was free to infer that the plastic bag containing cocaine found on the ground nearby after the chase was the same bag seen in appellant’s hand and pocket. We must give deference to the trial court ‘not only to findings of fact, but also to any reasonable and justified inferences the fact-finder may have drawn from the facts proved.’ …
“Moorman testified that the plastic bag found on the ground was consistent with the plastic bag in appellant’s hand and pocket. With no other plastic bags found in the vicinity, and the bag no longer on appellant’s person after the chase, the trial court was not clearly wrong in concluding that appellant possessed the bag of cocaine.”
Intent
“[A]n expert testified that the presence of cocaine was inconsistent with personal use. … The expert pointed to multiple factors which brought her to that conclusion.
“First, the expert stated that the largest dose of cocaine she has seen taken by a user is an ‘8-ball,’ which is 3.5 grams. Here, the amount was larger, around 6 grams. ‘Possession of a controlled substance in a quantity greater than that ordinarily possessed for one’s personal use may be sufficient to establish an intent to distribute it.’ …
“Second, she testified that the street value was more than what a typical user purchases, amounting to between $300 to $600. The expert went on to state that she had never seen a user spend more than $300 to buy cocaine, and buyers typically use the cocaine within thirty minutes to an hour of purchasing.
“Third, there were no ingestion devices found in appellant’s car or on his person. Lastly, the bag contained nineteen individually and similarly wrapped bags of cocaine, along with one larger bag of cocaine. All of these factors listed by the expert are important when determining whether appellant possessed the intent to distribute the cocaine. …
“The trial court was entitled to consider the expert’s testimony to determine whether the Commonwealth had provided sufficient evidence to prove beyond a reasonable doubt that appellant possessed the intent to distribute the cocaine. …
“The totality of the evidence supports the trial court’s finding that appellant possessed the intent to distribute the cocaine.”
Affirmed.
Watson v. Commonwealth, Record No. 1350-20-1, Dec. 14, 2021. CAV (Clements) from Chesapeake City Circuit Court (Wright). Terence P. Martin for appellant. Timothy J. Huffstutter for appellee. VLW 021-7-181, 8 pp. Unpublished.
