Terry Wayne Jones v. Commonwealth of Virginia ( 1998 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Bumgardner
Argued at Salem, Virginia
TERRY WAYNE JONES
MEMORANDUM OPINION * BY
v. Record No. 0830-97-3 JUDGE SAM W. COLEMAN III
MAY 5, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE
James F. Ingram, Judge
Andrea C. Long (Boone, Beale, Cosby & Long,
on brief), for appellant.
Steven A. Witmer, Assistant Attorney General
(Richard Cullen, Attorney General, on brief),
for appellee.
Terry Wayne Jones appeals his bench trial conviction for
possession of cocaine with the intent to distribute in violation
of Code § 18.2-248. Conceding that he possessed cocaine, Jones
contends the evidence is insufficient to prove that he intended
to distribute the cocaine. Finding the evidence sufficient, we
affirm the conviction.
Proof of an accused's "specific intent" to distribute a
controlled substance is essential to a conviction under Code
§ 18.2-248. See Servis v. Commonwealth, 6 Va. App. 507, 524, 371
S.E.2d 156, 165 (1988). Because the specific intent to
distribute a controlled substance is difficult to establish
through direct evidence, the Commonwealth may, and frequently
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
must, rely on circumstantial evidence to prove that intent. See
Wilkins v. Commonwealth, 18 Va. App. 293, 298, 443 S.E.2d 440,
444 (1994) (en banc). When the Commonwealth relies on
circumstantial evidence, "'all necessary circumstances proved
must be consistent with guilt and inconsistent with innocence and
exclude every reasonable hypothesis of innocence.'" Pemberton v.
Commonwealth, 17 Va. App. 651, 655, 440 S.E.2d 420, 422 (1994)
(quoting Garland v. Commonwealth, 225 Va. 182, 184, 300 S.E.2d
783, 784 (1983)).
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 judgment of
a trial court sitting without a jury is entitled to the same
weight as a jury verdict and will not be set aside unless it
appears from the evidence that the judgment is plainly wrong or
without evidence to support it." Id.
Viewed accordingly, the evidence proved that City of
Danville Police Officer Ricky Luck employed an undercover
informant to make a controlled drug purchase at Jones' house.
Luck recorded the serial number on a twenty dollar bill and gave
the bill to the informant to use in the controlled purchase.
Luck watched the informant enter the house and return with two
rocks of cocaine.
Based on the informant's purchase, Luck obtained and
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executed a warrant to search Jones' house the next day. During
the search, Luck asked Jones whether he was in possession of any
drugs. Jones responded that he was. Luck then searched Jones
and recovered a pill bottle containing fifteen rocks of cocaine,
weighing approximately 1.2 grams, and a baggie containing
approximately 0.18 grams of cocaine. He also found over $757 in
small denomination bills in Jones' pants pockets, including a
twenty dollar bill bearing the same serial number as the twenty
dollar bill that Luck had given to the informant to purchase
cocaine at Jones' house a day earlier.
Appellant denied knowledge of the informant's controlled
drug purchase, but admitted possessing the cocaine that Luck
found in his pockets. Appellant claimed that the cocaine was for
his personal use. He testified that he received $423 per month
in Social Security disability income and that he possessed $757
in cash because he had just cashed his Social Security check. He
also testified that a friend had used his house to entertain a
guest on the night of the informant's purchase and the friend had
given him a twenty dollar bill for letting him do so.
The circumstantial evidence supports the trial court's
finding that Jones possessed the cocaine with the specific intent
of distributing it. Although the Commonwealth offered no
evidence to prove that the quantity of cocaine found in Jones'
possession was inconsistent with personal use, even a relatively
small quantity of drugs when considered in conjunction with other
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circumstances may support a finding of an intent to distribute.
See Early v. Commonwealth, 10 Va. App. 219, 222, 391 S.E.2d 340,
341-42 (1990). Luck recovered $757 in small denomination bills
from Jones' pockets. We have consistently recognized that an
accused's possession of a significant amount of cash, especially
in small denominations, may be considered by the fact finder as
evidence sufficient to prove an intent to distribute. See White
v. Commonwealth, 25 Va. App. 662, 668, 492 S.E.2d 451, 454 (1997)
(en banc); Servis v. Commonwealth, 6 Va. App. 507, 524, 371
S.E.2d 156, 165 (1988). Furthermore, in this case, the jury
could infer that appellant was selling drugs in light of the fact
that the amount of cash found in his possession was significant
in comparison to appellant's disability income of $423 per month.
Also, Jones' possession of the "marked" twenty dollar bill
supports the inference that Jones sold the two rocks of cocaine
to the informant and intended to sell the rocks of cocaine found
in his possession. "A finder of fact may infer from evidence of
a recent sale of a controlled substance, related by time and
place to a similar substance still in the seller's possession,
that the seller intended to distribute the substance he or she
still possessed." Werres v. Commonwealth, 19 Va. App. 744, 749,
454 S.E.2d 36, 39 (1995). Furthermore, the trial court was
entitled to reject Jones' testimony explaining how the large
amount of cash, including the "marked" currency, came into his
possession and that he possessed the cocaine for his personal
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use. See Black v. Commonwealth, 222 Va. 838, 842, 284 S.E.2d
608, 610 (1981).
Considering the totality of the circumstances and the
reasonable inferences fairly deducible from the evidence, we
cannot say that the trial court's conclusion that Jones possessed
the cocaine with the specific intent to distribute is plainly
wrong or without evidence to support it. Accordingly, the
evidence is sufficient to support the conviction, and we affirm.
Affirmed.
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Benton, J., dissenting.
When the Commonwealth's "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.
Commonwealth, 227 Va. 119, 122, 313 S.E.2d 382, 383 (1984)
(citation omitted). "Where inferences are relied upon to
establish guilt, they must point to guilt so clearly that any
other conclusion would be inconsistent therewith." Dotson v.
Commonwealth, 171 Va. 514, 518, 199 S.E. 471, 473 (1938). Thus,
it follows that the "[e]xistence of the intent [to distribute]
. . . cannot be based upon surmise or speculation," Patterson v.
Commonwealth, 215 Va. 698, 699, 213 S.E.2d 752, 753 (1975), and
must be proved beyond a reasonable doubt. See Smith v.
Commonwealth, 16 Va. App. 626, 628, 432 S.E.2d 1, 2 (1993).
The evidence proved that the day before Terry Jones was
arrested, a police informant with a marked twenty dollar bill
entered the residence where Jones lived. The officer who gave
the informant the money testified that he heard several people in
the residence. However, no evidence proved that Jones was
present. After the informant left the residence, he gave the
police cocaine. No evidence proved how the informant obtained
the cocaine or who was in the residence when the informant
entered. No evidence proved that Jones was the only person who
lived in the residence.
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The next day, the police obtained a warrant and entered
Jones' residence. Jones was in the residence with a woman.
Although Jones had cocaine in his pocket, no evidence proved that
Jones possessed an amount of cocaine that was inconsistent with
personal use. The circumstances of Jones' possession of the
cocaine are as consistent with his intent to use the cocaine as
they are with an intent to distribute. See Hunter v.
Commonwealth, 213 Va. 569, 571, 193 S.E.2d 779, 780 (1973).
Indeed, the relatively small quantity of cocaine found warrants
the inference that Jones possessed it for his personal use. See
Dukes, 227 Va. at 122, 313 S.E.2d at 384.
No other evidence tended to prove an intent to distribute.
The packaging of cocaine was not unique. "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." Id. at 123, 313 S.E.2d at 384. No evidence proved
that Jones had scales, baggies, twist ties, a ledger of accounts,
or any other paraphernalia usually associated with distribution
of cocaine.
The majority suggests the trier of fact could have inferred
that Jones intended to distribute the drugs from the fact that
Jones also possessed a quantity of money that was less than twice
his monthly income. Even if the trier of fact rejected Jones'
uncontradicted explanation of the legitimate source of his income
and Jones' testimony that the money was to pay his household
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bills, the record contains no proof that the money came from the
sale of illegal drugs. Jones had money in his residence and had
a legitimate source of income. His guilt cannot be established
by inferring that his possession of more than a pittance of funds
proves he must be engaged in selling drugs. The inference the
majority uses to establish Jones' guilt is purely speculative.
"Where inferences are relied upon to establish guilt, they
must point to guilt so clearly that any other conclusion would be
inconsistent therewith." Dotson, 171 Va. at 518, 199 S.E. at
473. People of modest means are not incapable of saving money
and do not always exhaust their income each month. Moreover, the
evidence proved that Jones, a drug user, had a legitimate source
of income. His guilt cannot be established by proving he had
money in his home. Under the majority's thesis, every gainfully
employed drug user can be found guilty of possession with intent
to distribute by simultaneously possessing drugs and the proceeds
of his or her last legitimate paycheck.
It is well settled in Virginia that "[w]henever the evidence
leaves indifferent which of several hypotheses is true, or merely
establishes some finite probability in favor of one hypothesis,
such evidence does not amount to proof beyond a reasonable
doubt." Sutphin v. Commonwealth, 1 Va. App. 241, 248, 337 S.E.2d
897, 900 (1985) (citation omitted). Although the evidence may be
suspicious, or may even make it probable that Jones intended to
distribute the cocaine, such circumstantial evidence is not
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sufficient to support a criminal conviction for possession of the
cocaine with intent to distribute. Suspicious circumstances
alone are insufficient to sustain a conviction for possession of
drugs with an intent to distribute. See Garland v. Commonwealth,
225 Va. 182, 184, 300 S.E.2d 783, 784 (1983); Wright v.
Commonwealth, 217 Va. 669, 670, 232 S.E.2d 733, 734 (1977). "[A]
conviction based upon a mere suspicion or probability of guilt,
however strong, cannot stand." Bridgeman v. Commonwealth, 3 Va.
App. 523, 528, 351 S.E.2d 598, 601-02 (1986).
For these reasons, I would reverse the conviction.
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