Criminal – Evidence supports fentanyl possession/distribution conviction

Based on evidence the defendant was an “experienced drug dealer,” that he intended to distribute most of the controlled substances he possessed and that he was familiar with the relevant drug market, his conviction for possession of fentanyl with the intent to distribute, third or subsequent offense was affirmed.

Background

Antonio Tobias Cuffee appeals a divided decision of the Court of Appeals affirming his conviction for possession of fentanyl with the intent to distribute, third or subsequent offense. He contends that the Commonwealth’s evidence was insufficient to prove that he knew that one of the substances he possessed was a mixture containing fentanyl.

Analysis

There is no dispute that Cuffee actually possessed the fentanyl. After all, it was seized from his person having been discovered in a bag he held in his hand, which was in the pocket of the jacket he was wearing. Thus, the only question on appeal is whether the evidence was sufficient to prove he was aware of the fentanyl’s presence in his pocket.

The jury was aware that Cuffee had two prior convictions for possession of cocaine with the intent to distribute, and therefore, was, in fact, an experienced drug dealer. It also cannot be disputed that the evidence was more than sufficient to allow a rational factfinder to conclude that Cuffee was not just a cocaine dealer, but sold all manner of drugs.

Largely acknowledging that these factors allow for the conclusion that he was engaged in drug distribution, Cuffee contends that, by focusing on this evidence, the Court of Appeals conflated evidence of distribution with evidence of knowledge of the nature and character of Item 9. This ignores the obvious truth that the same pieces of evidence may help prove multiple elements of an offense.

It is unquestionably true that the referenced evidence amply supported the conclusion that Cuffee intended to distribute most of the controlled substances he possessed. It also is true, however, that these textbook indicia of distribution, coupled with Cuffee’s prior convictions, allowed the jury to conclude that Cuffee is not an amateur entering into the drug trade on a lark, but rather, is a drug dealer by profession. From that fact, the jury reasonably could infer that Cuffee was familiar with the relevant drug market.

That familiarity is critical given the unrebutted testimony of Detective Ashley Souther about the relevant market. Souther, who testified as an expert in the possession and distribution of controlled substances, testified that over the preceding few years, dealers had begun selling heroin and fentanyl as a mixture. The heroin/fentanyl mixture apparently is popular with users because it is stronger than heroin alone, allowing the user to consume less for the same effect. Critically, her unrebutted testimony established that heroin mixed with fentanyl sells at a higher price than the same amount of heroin alone.

Because the evidence was sufficient to establish that Cuffee was an experienced drug dealer in the relevant market, the jury reasonably could infer that he was familiar with market trends. As a result, the jury could conclude that Cuffee was aware of the recent development of heroin and fentanyl mixtures being sold, that the mixtures were popular with drug users in the relevant market and that the mixtures cost more per gram than heroin alone.

Thus, even accepting Cuffee’s counsel’s hypothesis that the evidence allowed for the conclusion that Cuffee did not mix the substances himself, but rather, purchased it from another dealer, the jury reasonably could conclude that Cuffee, as an experienced drug dealer, would have known what he was buying because of the price.

Cuffee nevertheless argues that the evidence did not negate his reasonable hypothesis of innocence. This court disagrees. So long as the factfinder’s rejection of a proposed hypothesis as unreasonable is not arbitrary, the reasonable hypothesis of innocence principle provides no authority for an appellate court to invade the province of the factfinder.

Applying that understanding here, it is clear that the jury’s rejection of Cuffee’s proffered hypothesis was not arbitrary. For the reasons stated above, there was sufficient evidence to support the conclusion that Cuffee was aware of the fentanyl he carried in his pocket for sale. Because that conclusion was supported by the evidence, the jury’s rejection of Cuffee’s alternative theory was not arbitrary.

Affirmed.

Cuffee v. Commonwealth, Record No. 241104, April 16, 2026 (Russell Jr.). From the Court of Appeals of Virginia. VLW 026-6-018. 15 pp

Full-Text Opinion

VLW 026-6-018
Virginia Lawyers Weekly