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DECEMBER 28, 1999

Record No. 2566-98-3





Present: Judges Benton, Bray and Bumgardner

Argued at Salem, Virginia



James F. Ingram, Judge

S. Jane Chittom, Appellate Counsel (Elwood Earl
Sanders, Jr.; Public Defender Commission, on briefs), for

John H. McLees, Jr., Assistant Attorney General
(Mark L. Earley, Attorney General, on brief), for appellee.

Leroy Neal Barksdale (defendant) was convicted
in a bench trial for possession of cocaine with intent to
distribute, a violation of Code Sect. 18.2-248. On appeal,
defendant complains that the trial court erroneously denied his
motion for an order requiring the Commonwealth to provide a
qualitative analysis of the offending substance. Defendant also
challenges the sufficiency of the evidence to support the
conviction. Finding no error, we affirm the trial court.


In reviewing the sufficiency of the evidence,
we consider the record "’in the light most favorable to the
Commonwealth, giving it all reasonable inferences fairly
deducible therefrom. 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
. . . .’" Watkins v. Commonwealth, 26
Va. App. 335, 348, 404 S.E.2d 859, 866 (1998) (citation omitted).
The credibility of the witnesses, the weight accorded testimony,
and the inferences to be drawn from proven facts are matters to
be determined by the fact finder. See Long v.
, 8 Va. App. 194, 199, 379 S.E.2d 473, 476
(1989). "When weighing the evidence, the fact finder is not
required to accept entirely either the Commonwealth’s or
defendant’s account of the facts," but "may reject that
which it finds implausible, [and] accept other parts which it
finds to be believable." Pugliese v. Commonwealth, 16
Va. App. 82, 92, 428 S.E.2d 16, 24 (1993). The judgment of the
trial court will not be set aside unless plainly wrong or
unsupported by the evidence. See CodeSect. 8.01-680.

At approximately 3:10 p.m. on August 20, 1997,
Danville Police Patrolman L.R. Kennedy and Detectives Tommy
Merricks and C.D. Evans executed a search warrant for defendant’s
apartment. In a nightstand drawer, Evans discovered $105 cash and
a "small black bag like maybe a [sic] electric razor would
come in," "bulged out" "from the
contents." A search of the black bag revealed "a little
plastic bag of white powder," "like a sandwich
bag," marijuana wrapped in a paper towel, an additional $517
cash, food stamps, and "flat, electronic type scales."
The certificate of analysis subsequently prepared by the
Commonwealth’s Division of Forensic Science identified the
"powder" as "cocaine (Schedule II), 26.2
grams," and defendant admitted possession for his personal

At trial, Detective Merricks qualified as an
expert on the "street value" of cocaine and fixed the
worth of 26.2 grams at $800 to $1,300. Without objection,
Merricks described 26.2 grams as "a large amount to be
recovered," noting that he had "not encountered anyone
that is a user that has had [that quantity] of cocaine at one
time," that the most he had "ever seen anyone purchase
for personal use . . . was a hundred dollars’

Defendant testified that he had been a
"cocaine addict" for thirty years and admitted
purchasing the subject drugs, a "three or four day"
supply, for $750 several hours prior to the search of his
residence. He claimed that he won the purchase money and
remaining cash by "hitting the lottery," "three
days in a row,"
[1] and "working and
everything," and used the scales "to weigh what [drug
dealers] sold" him.

On cross-examination, defendant explained that
he supported his cocaine habit, which consumed seven grams daily,
by seasonal employment several months each year at a weekly wage
of $175, irregular earnings "cleaning gutters and raking
leaves[,] . . . stuff like that," and
"shoplifting." Whenever without funds to purchase
cocaine, defendant would "just chill out and . . .
use no drugs." He admitted to "six or seven" prior
felony convictions, including robbery.


Defendant first argues that the trial court
erroneously denied his motion, made immediately prior to the
commencement of trial, that the Commonwealth be required to
provide a "quanitative analysis" of the
"powder," identified simply as "cocaine" in
the certificate of analysis, to determine and quantify the
composition of the substance. In support of the motion,
defendant’s counsel expressed his "belie[f]" that
further analysis would reveal the presence of a "cutting
agent," evidence which may rebut any inference of an intent
to distribute cocaine arising from the total quantity of powder.
In concluding his argument to the court, counsel acknowledged,
"I’m rolling the dice here."

The Supreme Court of Virginia has instructed
that "an indigent defendant.
[2] who seeks the appointment of an expert witness, at the
Commonwealth’s expense, must demonstrate that the subject which
necessitates the assistance of the expert is ‘likely to be a
significant factor in his defense,’ and that he will be
prejudiced by the lack of expert assistance[,]" resulting
"in a fundamentally unfair trial." Husske v.
, 252 Va. 203, 211-12, 476 S.E.2d 920, 925 (1996)
(footnote added) (citations omitted), cert. denied, 519
U.S. 1154 (1997); see also Vinson v.
, ___ Va. ___, ___, ___ S.E.2d ___, ___ (1999).
Thus, the Husske Court reasoned that the accused must show
a "particularized need" for such expertise and that
"’"'[m]ere hope or suspicion that favorable evidence is
available is not enough to require that such help be provided.’
. . . The determination . . . whether a
defendant has made an adequate showing of particularized
necessity lies within the discretion of the trial
judge."’" Husske, 252 Va. at 212, 476 S.E.2d at
925-26 (citations omitted).

Here, defendant "believe[d]" that a
qualitative analysis of the contraband would precisely quantify
the cocaine, apart from any cutting agent, evidence which he
speculates would negate any inference of an intent to distribute
based upon gross weight. However, nothing in the record
establishes the relevance of purity either to the distribution of
cocaine or a related prosecution for the offense. Perhaps more
telling, defendant characterized his motion as "rolling the
dice." Thus, the record failed to demonstrate a
particularized need for the requested expertise but, rather,
defendant’s mere hope that the evidence would promote his
defense. Such conjecture, lacking substance, did not implicate
defendant’s fundamental right to a fair trial. Accordingly, the
trial court properly denied the motion.


Defendant next challenges the sufficiency of
the evidence to establish the requisite intent to distribute.

"If evidence of intent is wholly
circumstantial, ‘all necessary circumstances proved must be
consistent with guilt and inconsistent with innocence and exclude
every reasonable hypothesis of innocence.’" Dukes v.
, 227 Va. 119, 122, 313 S.E.2d 382, 383 (1984)
(citation omitted). "When the proof of intent to distribute
rests upon circumstantial evidence, the quantity which the
defendant possesses is a circumstance to be considered. Indeed,
quantity, alone, may be sufficient to establish such intent if it
is greater than the supply ordinarily possessed for one’s
personal use." Id. (citation omitted). Furthermore,
"[t]he presence of an unusual amount of money, suggesting
profit from sales," Servis v. Commonwealth, 6 Va.
App. 507, 524, 371 S.E.2d 156, 165 (1988) (citation omitted), and
"the presence of paraphernalia," such as scales, are
factors supporting a conviction for possession with intent to
distribute. Davis v. Commonwealth, 12 Va. App. 728, 733,
406 S.E.2d 922, 925 (1991).

Detective Merricks testified that the quantity
of cocaine in defendant’s possession was inconsistent with
customary personal use. The drugs were found together with a
large sum of money and electronic scales suitable for weighing
like contraband in furtherance of distribution. Although
defendant offered explanations for the cash, scales and quantity
of cocaine to refute an intent to distribute, the court was free
to ignore his testimony and "infer that he lied to conceal
. . . guilt." Speight v. Commonwealth, 4
Va. App. 83, 88, 354 S.E.2d 95, 98 (1987).

Accordingly, we find the evidence sufficient to
support the conviction and affirm the decision of the trial


Benton, J., dissenting.

Leroy Barksdale concedes the evidence is
sufficient to prove his possession of cocaine, but he contends
the evidence is insufficient to prove his intent to distribute. I
agree; therefore, I dissent.

"To satisfy the due process requirements
of the . . . Constitution, the prosecution must bear the burden
of proving all elements of the offense beyond a reasonable
doubt." Stokes v. Warden, 226 Va. 111, 117, 306
S.E.2d 882, 885 (1983). "It is elementary that where, as
here, an indictment charges an offense which consists of an act
combined with a particular intent, proof of the intent is
essential to conviction. . . . Existence of the intent, however,
cannot be based upon surmise or speculation." Patterson
v. Commonwealth
, 215 Va. 698, 699, 213 S.E.2d 752, 753 (1975)
(citations omitted). Intent must be proved beyond a reasonable
doubt. See Dukes v. Commonwealth, 227 Va. 119, 123,
313 S.E.2d 382, 384 (1984); Wells v. Commonwealth, 2 Va.
App. 549, 553, 347 S.E.2d 139, 141 (1986).

[W]ell established principles apply to testing
the sufficiency of circumstantial evidence. In LaPrade v.
, 191 Va. 410, 418, 61 S.E.2d 313, 316 (1950),
[the Supreme Court] summarized those principles as follows:

". . . [I]f the proof relied upon by
the Commonwealth is wholly circumstantial, as it here is,
then to establish guilt beyond a reasonable doubt all
necessary circumstances proved must be consistent with guilt
and inconsistent with innocence. They must overcome the
presumption of innocence and exclude all reasonable
conclusions inconsistent with that of guilt. To accomplish
that, the chain of necessary circumstances must be unbroken
and the evidence as a whole must satisfy the guarded judgment
that both the corpus delicti and the criminal agency of the
accused have been proved to the exclusion of any other
rational hypothesis and to a moral certainty. . . ."

But, circumstances of suspicion, no matter how
grave or strong, are not proof of guilt sufficient to support a
verdict of guilty. The actual commission of the crime by the
accused must be shown by evidence beyond a reasonable doubt to
sustain his conviction.

Clodfelter v. Commonwealth, 218 Va. 619,
623, 238 S.E.2d 820, 822 (1977).

The detective did not opine that the 26.2 grams
of cocaine was inconsistent with personal use. Indeed, he
testified as follows:

Q: . . . . Now you have not offered an
opinion as to the quantity that can be used in personal use

A: No sir.

Q: You have been strictly only as to value
of this substance on the street?

A: Yes sir.

Although the detective testified that 26.2
grams was not an amount typically purchased on the street, he
testified that in the past eighteen months he had been involved
in operations where other individuals made purchases on the
streets of Danville of "approximately this quantity" of
cocaine. He also testified that the purchase value of that
quantity of powder cocaine was $800 to $1,300 and that
"powder has been less and less . . . prevalent on the
streets of Danville." The evidence further proved that
although one-eighth of an ounce of cocaine, known as an
"eight-ball," is a typical unit of purchase on the
street, the amount of cocaine Barksdale possessed (26.2 grams),
which is less than an ounce, had been purchased on the streets by
the police. In addition, the detective testified that heavily
addicted cocaine users would want to have an ounce of cocaine to
use if they could "get their hands on it." In short,
this evidence does not establish that the amount of cocaine
Barksdale possessed was not for his personal use. See, e.g.,
United States v. Levy, 703 F.2d 791, 792 (4th Cir. 1983)
(noting that 4.75 ounces of cocaine does not exceed the quantity
a user might store for personal use).

Although scales were found in proximity to the
cocaine, no evidence tended to prove a use other than that
testified to by Barksdale. He testified that he used the scales
to weigh the cocaine after he made purchases so as to assure
himself that he was not being cheated. Considering the absence of
proof that Barksdale possessed any packaging materials or cutting
agents or any other circumstance tending to prove intent to
distribute, the evidence failed to prove that Barksdale intended
to distribute the cocaine which was located in a drawer of a
nightstand in his bedroom.

For these reasons, I would reverse the
conviction for possession with intent to distribute.



[1] Defendant also testified that he
"hit the numbers" "eleven times" in 1997,
winning in excess of $500 on each occasion.

[2] The instant record discloses that
defendant was indigent.