Bobby Alexander Shelton v. Commonwealth ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Senior Judge Cole
Argued at Richmond, Virginia
BOBBY ALEXANDER SHELTON
MEMORANDUM OPINION * BY
v. Record No. 0712-94-2 JUDGE SAM W. COLEMAN III
FEBRUARY 13, 1996
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Robert W. Duling, Judge
Maureen L. White (David J. Johnson,
Public Defender, on brief), for appellant.
Michael T. Judge, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
Bobby A. Shelton was convicted for possession of cocaine
with intent to distribute in violation of Code § 18.2-248. He
contends the trial judge erred by taking judicial notice of facts
from other cases that the quantity of cocaine proved intent to
distribute and by finding the evidence sufficient to prove an
intent to distribute. We hold that the trial court did not take
judicial notice of facts outside the record and we find the
evidence sufficient to prove intent to distribute. Therefore, we
affirm the conviction.
The evidence proved that Officers Scott Shapiro and John
O'Kleasky approached a parked vehicle at 2:30 a.m. and saw
Shelton sitting in the front passenger seat, making frantic
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
movements with his right hand, bending down, and looking over his
right shoulder. Shelton threw a rolled up plastic bag to his
left. The bag hit the driver's side window and fell to the left
side of the driver's seat. The officers opened the door and
seized the bag, later determined to contain 46.5 grams of
cocaine. Shelton had on him a pager and $732 in currency when
arrested. In response to questioning, Shelton stated that he was
working for a person named "Buzz," that the drugs were left in
the car by another person, that the drugs were not his, and that
the money was his girlfriend's. Shelton later stated that the
pager belonged to his girlfriend and that he did not throw the
bag.
Shelton moved to strike the Commonwealth's evidence. He
asserted that the Commonwealth had failed to meet its burden of
proving he intended to distribute drugs because no expert
testimony was offered to show that the quantity of drugs found
was inconsistent with personal use. In response, the
Commonwealth argued that the evidence was sufficient to prove
intent to distribute and that it was not obligated to put forth
expert testimony as to quantity when it is apparent to the fact
finder that the quantity is not consistent with personal use.
Asserting that the trial judge as fact finder could apply the
knowledge gained from other cases involving possession with
intent to distribute, the Commonwealth argued that the judge
could find on these facts that 46.5 grams of cocaine is a
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quantity that shows intent to sell. The trial court overruled
Shelton's motion to strike.
This Court "must view the evidence in the light most
favorable to the Commonwealth, granting to it all reasonable
inferences fairly deducible therefrom." Novak v. Commonwealth,
20 Va. App. 373, 373, 457 S.E.2d 402, 411 (1995). Where intent
is proved by circumstantial evidence, as in this case, "all
necessary circumstances proved must be consistent with guilt and
inconsistent with innocence and exclude every reasonable
hypothesis of innocence." Rice v. Commonwealth, 16 Va. App. 370,
372, 429 S.E.2d 879, 880 (1993) (citations omitted).
From our review of the record, the trial judge did not take
judicial knowledge of a fact or facts proven in other cases that
the judge had heard. Admittedly, in considering Shelton's motion
to strike the evidence, the trial judge initially read from
2 Charles E. Friend, The Law of Evidence in Virginia § 19-1 (4th
ed. 1993), concerning a judge's authority to take judicial notice
of certain facts. However, in determining whether the evidence
proved intent to distribute, the trial judge analyzed the
officers' testimony, found it credible, and considered whether
the quantity of cocaine, the statements by the accused, and his
possession of a pager and $732 in cash proved that Shelton
intended to possess the cocaine. The judge did not decide the
issue of intent to distribute by resorting to judicial notice of
facts proven in other cases. The record demonstrates that the
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judge ruled, based on the evidence before him, that the
Commonwealth had sufficiently proven intent based on testimony
and physical evidence in this case. The fact that the trial
judge commented that the amount of cocaine was the most he had
seen in any case he had heard did not constitute taking judicial
notice of a fact from another or other cases. Accordingly, we
reject the appellant's contention that the trial judge relied
upon judicial notice of facts proven in other cases in order to
find that Shelton intended to distribute the cocaine he
possessed.
To prove intent to distribute, the Commonwealth introduced a
pager and $732 in cash, statements of the accused, and the 46.5
grams of cocaine. The quantity of drugs is a "circumstance to be
considered" in determining whether it is for personal use or for
distribution. Dukes v. Commonwealth, 227 Va. 119, 122, 313
S.E.2d 382, 383 (1984). A large amount of money is a fact that
may be considered as evidence that the defendant did not possess
drugs for personal use. Servis v. Commonwealth, 6 Va. App. 507,
524, 371 S.E.2d 156, 165 (1988). See also Minor v. Commonwealth,
6 Va. App. 366, 372, 369 S.E.2d 206, 209 (1988). Shelton's
conflicting statements are other evidence the fact finder could
consider to prove intent to distribute. He gave conflicting
accounts concerning ownership of the pager and his actions at the
scene. His false and contradictory statements may be considered
as evidence attempting to conceal his guilt. Smith v.
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Commonwealth, 192 Va. 453, 461, 65 S.E.2d 528, 533 (1951). Thus,
based upon the quantity of drugs, the amount of money, the pager,
and Shelton's statements, the trial judge could reasonably infer
that Shelton intended to distribute the cocaine. Monroe v.
Commonwealth, 4 Va. App. 154, 156, 355 S.E.2d 336, 337 (1987).
Shelton also alleges the Commonwealth introduced
insufficient evidence to prove beyond a reasonable doubt his
intent to distribute cocaine. The evidence of the pager, money,
quantity of drugs, and conflicting statements is consistent with
guilt and precludes every hypothesis of innocence. Where the
quantity of drugs and other circumstances are sufficient that the
fact finder can reasonably infer an intent to distribute, it is
not necessary that the Commonwealth introduce expert testimony
that based on the witness's experience, in his opinion, the
quantity of drugs is inconsistent with personal use. For the
foregoing reasons, we hold that the evidence is sufficient to
prove beyond a reasonable doubt that the defendant possessed the
cocaine with the intent to distribute it. Therefore, we affirm
Shelton's conviction for possession of cocaine with intent to
distribute.
Affirmed.
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BENTON, J., dissenting.
I would hold that the trial judge erred in judicially
noticing that the quantity and packaging of cocaine indicated an
intent to distribute. Thus, I would also hold that the evidence
in this record failed to prove beyond a reasonable doubt that
(1) the cocaine seized from the automobile was an amount
inconsistent with personal use or (2) Shelton possessed the
cocaine with an intent to distribute it.
"Judicial notice is a short cut to avoid the necessity for
the formal introduction of evidence in certain cases where there
is no need for such evidence." Williams v. Commonwealth, 190 Va.
280, 291, 56 S.E.2d 537, 542 (1949). However, a judge may only
judicially notice facts that are common knowledge or easily
ascertainable by reference to reliable sources. Griswold v.
Commonwealth, 19 Va. App. 477, 484, 453 S.E.2d 287, 290, reversed
en banc on other grounds, 21 Va. App. 22, 25, 461 S.E.2d 411, 412
(1995).
Acknowledging the lack of evidence of intent to distribute,
the prosecutor urged the trial judge to judicially notice that
the amount proved intent to distribute. He specifically argued
as follows:
As to the intent, Judge, there's got to
be a point where, first of all, the
Commonwealth is only obligated to put forth
the testimony of an expert witness when the
trier of fact would need expert testimony.
The Court has heard cases involving
possession with intent, has on many occasions
passed judgment on amounts, lack thereof,
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statements, other indicia of distribution.
This case involves 46 and a half grams.
What distinguishes this case from the run
of the mill possession with intent case is
the fact that it's in chunks. An expert
could very well have come in and said, "Yes,
. . . that amount is a large amount. It
would be expensive on the street." [Defense
counsel's] question to the expert would have
had to have been, "Sir, couldn't this person
have bought the stuff, to hoard it, to last
him from now until the end of the summer?"
And the answer would have had to have been,
"Yes," or the expert would have lost his
credibility. The expert also could have
said, "I've seen people chip off crack
cocaine on the street." The Court has heard
it a thousand times. The problem is [defense
counsel] can't explain it away because . . .
Shelton is working for someone named Buzz.
Then he says a dude left it in the car. Then
he says he threw it but didn't really know
what it was. Then at the bottom down at
headquarters he says he didn't throw it. He
didn't really know what it was. And the
final lie was that it was his girl's pager.
Now, it was either his girl's pager or a
guy's pager. Either he knew what it was or
he didn't. And either he threw it or he
didn't. But his dishonesty is a
consideration the Court can take into account
as to his knowledge, intent, and as to
whether -- it's knowledge. It's evidence of
his guilt. The Court has the pager, the
money, and the amount.
There can't be a need to call in an
expert for 46 grams. There's got to be a
point where the Court is allowed to take
judicial notice of the amount otherwise we
can haul in a dumpster full of cocaine and
counsel can make the argument the person
intended to hold on to the cocaine from now
until he died. He got a good sale and won't
have to repurchase. (emphasis added).
In rendering his decision, the trial judge quoted 2 Charles
E. Friend, The Law of Evidence in Virginia, § 19-1 (4th ed.
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1993), and made the following statement of his judicial notice:
I just wanted to take a minute to review
some of the comments in the law pertaining to
judicial notice and Mr. Friend states, among
other things, in speaking about a trial "may
require that scores or even hundreds of
individual bits of evidence be introduced for
the consideration of the trier of the fact.
However, many of these bits and pieces which
are so obvious and indisputable that to
require formal proof of them would be both a
waste of time and an obstruction of the
orderly process of justice." And further he
makes reference to the extent to which jurors
may employ their own knowledge as to matters
not in evidence, which would also pertain to
a judge trying a case without a jury. And he
goes on to say that jurors may make use of
that reason and common sense and the
knowledge and experience gained by them in
everyday life.
In his finding of facts, the trial judge commented on the
quantity of the cocaine, its packaging, and the purported
significance of the cocaine being broken into chunks. However,
the record contains no evidence regarding the significance of
these matters or their relationship to personal use or methods of
distribution. Finding that "it's probably the largest amount
that I've seen packaged in this fashion in a long time," the
trial judge ruled that the amount coupled with the packaging and
other facts of the case proved Shelton possessed the cocaine with
an intent to distribute it.
The trial judge erroneously relied upon his own knowledge
from other cases in inferring that one and a half ounces of
cocaine was a quantity that indicated an intent to distribute.
Moreover, the Supreme Court has stated that a "relatively small
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quantity of [drugs] in the defendant's possession warrants the
inference that it was for [the defendant's] personal use." Dukes
v. Commonwealth, 227 Va. 119, 122-23, 313 S.E.2d 382, 384 (1984).
In this case, the Commonwealth asked the trial judge to infer
from his knowledge that 1.5 ounces of cocaine was not a
relatively small quantity, that it was a quantity that was not
consistent with personal use, and further that it indicated an
intent to distribute. The evidence provides no foundation from
which those inferences could be drawn.
Moreover, no evidence proved that the manner of packaging
was significant. Indeed, no evidence in this record addressed
the method of packaging. As the Supreme Court stated in the
following passage in Dukes, users purchase packaged drugs and,
thus, the method of packaging often may be of little value in
distinguishing whether possession is for personal use or
distribution:
The mode of packaging and the way the
packages were hidden are as consistent with
possession for personal use as they are with
intent to distribute. It is just as
plausible that the defendant purchased the
packaged substance for personal use as it is
that she packaged the marijuana for
distribution.
227 Va. at 123, 313 S.E.2d at 384.
"While courts take judicial notice of such facts as are
commonly known from human experience, 'facts which are not
judicially cognizable must be proved, even though known to the
judge or to the court as an individual.'" Darnell v. Barker, 179
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Va. 86, 93, 18 S.E.2d 271, 275 (1942)(citation omitted). The
judge's knowledge of the significance of a particular quantity of
cocaine and packaging which he apparently obtained from having
heard evidence in other cases, does not permit the Commonwealth
to dispense with "proof of facts not judicially cognizable" and
to rely upon proof from other cases. Id.
"The general rule is that the court will not
travel outside the record of the case before
it in order to take notice of the proceedings
in another case, even between the same
parties and in the same court, unless the
proceedings are put in evidence. The reason
for the rule is that the decision of a cause
must depend upon the evidence introduced. If
the courts should recognize judicially facts
adjudicated in another case, it makes those
facts, though unsupported by evidence in the
case at hand, conclusive against the opposing
party; while if they had been properly
introduced they might have been met and
overcome by him."
Bernau v. Nealon, 219 Va. 1039, 1043, 254 S.E.2d 82, 85
(1979)(citation omitted).
I would hold that no evidence in this record proved the
significance of the quantity of cocaine or the method by which
the cocaine was placed in the bag. Shelton's mere possession of
one and a half ounces of cocaine in a bag while he had money and
a pager do not prove beyond a doubt that Shelton possessed the
cocaine with the intent to distribute.
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