Randy Alfonzo Leftwich v. Commonwealth of Virginia ( 2000 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Willis and Elder
Argued at Richmond, Virginia
RANDY ALFONZO LEFTWICH
MEMORANDUM OPINION * BY
v. Record No. 2466-99-3 JUDGE JERE M. H. WILLIS, JR.
NOVEMBER 28, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF MARTINSVILLE
Charles M. Stone, Judge
James R. McGarry (Young, Haskins, Mann,
Gregory & Smith, P.C., on brief), for
appellant.
H. Elizabeth Shaffer, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
On appeal from his conviction of possession with intent to
distribute cocaine, in violation of Code § 18.2-248, Randy
Alfonzo Leftwich (appellant) contends that the Commonwealth
failed to prove his intent to distribute. We reverse
appellant's conviction of possession with intent to distribute
and remand for conviction and sentencing on the lesser offense
of possession of cocaine, if the Commonwealth be so advised.
I. BACKGROUND
On December 3, 1997, the Martinsville Police Department
executed a search warrant at 125 Askin Street in the City of
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
Martinsville, Virginia, which was rented to appellant's aunt,
Barbara Leftwich.
In the front bedroom, the police found Barbara Leftwich
lying in bed with a small child. Appellant was at the foot of
the bed and rose to his feet as the officers walked into the
room. As appellant removed his hands from his pocket, $15 and a
plastic baggie containing 2.87 grams of cocaine fell to the
floor, and $79 in cash was lying on the bed. Appellant
acknowledged that these items were his.
In the same front bedroom, the police also seized a green
beeper and a small amount of money lying on a nightstand near
the bed and additional cocaine and some marijuana wrapped in
tissue inside an armoire. Appellant denied ownership or
knowledge of these items. He asked the officers, "how much time
in jail did [they] think he'd have to pull?"
In the rear bedroom, the police found the appellant's twin
brother, Landy Leftwich (Landy), in bed with a sixteen-year-old
woman. In this bedroom the police found a .40 caliber handgun,
ammunition for the handgun, a Bearcat scanner and a set of car
keys. None of these items was attributable to appellant.
In the living room, the police seized a black leather
jacket containing $1,956 in different denominations. This
jacket was not tied to appellant.
Finally, the police found 17.9 grams of free base cocaine
under the floor mat of a car parked at the house. The keys to
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the car were found in the rear bedroom on the headboard of the
bed where Landy and the sixteen-year-old woman were lying. The
car was titled in the name of a third party not connected with
this case. This cocaine was not tied to appellant.
Appellant moved to strike at the conclusion of the
Commonwealth's evidence on the ground that it was insufficient
to prove his possession of cocaine with the intent to
distribute. The motion was denied, and appellant presented no
evidence. After one of his codefendants presented evidence,
appellant renewed his motion to strike, which was again denied.
II. ANALYSIS
Appellant concedes that the evidence was sufficient to
prove he possessed the 2.87 grams of cocaine that fell from his
pocket when the police entered the front bedroom. "This case
therefore presents the question whether the facts proven by the
Commonwealth established an intent to distribute rather than
mere possession for personal use." Wells v. Commonwealth, 2 Va.
App. 549, 551, 347 S.E.2d 139, 140 (1986). Upon reviewing the
record, we hold that the evidence was insufficient to prove
appellant intended to distribute cocaine.
"On appeal, we review the evidence in the light most
favorable to the Commonwealth, granting to it all reasonable
inferences fairly deducible therefrom." Martin v. Commonwealth,
4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987). "The jury's
verdict will not be disturbed on appeal unless it is plainly
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wrong or without evidence to support it." Traverso v.
Commonwealth, 6 Va. App. 172, 176, 366 S.E.2d 719, 721 (1988).
"Because direct proof of intent [to distribute drugs] is
often impossible, it must be shown by circumstantial evidence."
Servis v. Commonwealth, 6 Va. App. 507, 524, 371 S.E.2d 156, 165
(1988). Circumstantial evidence "is as competent and is
entitled to as much weight as direct evidence, provided it is
sufficiently convincing to exclude every reasonable hypothesis
except that of guilt." Coleman v. Commonwealth, 226 Va. 31, 53,
307 S.E.2d 864, 876 (1983).
The evidence established that appellant possessed the 2.87
grams of cocaine that fell from his pocket. However, no
evidence proved that he owned or constructively possessed the
other items of contraband found throughout the house. The mere
presence of the black leather jacket containing $1,956 in cash,
the .40 caliber handgun and ammunition, and the Bearcat scanner,
while the appellant possessed the 2.87 grams of cocaine in the
front bedroom, does not exclude the reasonable hypothesis that
those items belonged to someone other than the appellant.
Barbara Leftwich, Landy Leftwich, and the sixteen-year-old woman
were all present in the house when the police executed the
warrant.
Although the appellant was a frequent visitor to the home,
he did not live there. Other than his presence, the only
evidence linking him to the premises was the testimony of
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Barbara Leftwich that the appellant and his twin brother "were
welcome to come and go pretty much as they chose" and that they
had "free reign" in her home. He kept no clothes, important
papers or other personal belongings there.
The appellant's question to the police, "how much time in
jail did [the police] think he'd have to pull," does not prove
an intent to distribute. Although this question may suggest
consciousness of guilt, that guilt could be of possession only.
Finally, no evidence proved that the quantity of cocaine
appellant possessed was inconsistent with personal use. See
Rodriguez v. Commonwealth, 18 Va. App. 277, 443 S.E.2d 419(1994) (en banc), aff'd, 249 Va. 203, 454 S.E.2d 725 (1995);
Poindexter v. Commonwealth, 16 Va. App. 730, 432 S.E.2d 527(1993). Mere "'[p]ossession of a small quantity creates an
inference that the drug is for personal use.'" Servis, 6 Va.
App. at 524, 371 S.E.2d at 165 (quoting Monroe v. Commonwealth,
4 Va. App. 154, 156, 355 S.E.2d 336, 337 (1987)). The
"[e]xistence of . . . intent . . . cannot be based upon surmise
or speculation." Patterson v. Commonwealth, 215 Va. 698, 699,
213 S.E.2d 752, 753 (1975).
For these reasons, we hold the evidence was insufficient to
support appellant's conviction for possessing cocaine with the
intent to distribute in violation of Code § 18.2-248.
Therefore, we reverse his conviction and remand the case to the
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trial court for retrial on possession of cocaine, if the
Commonwealth be so advised.
Reversed and remanded.
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