Ronnie Lee Banks v. Commonwealth ( 1997 )

COURT OF APPEALS OF VIRGINIA
Before: Judges Baker, Bray and Overton
Argued at Norfolk, Virginia
RONNIE LEE BANKS
MEMORANDUM OPINION *
v. Record No. 2219-96-1 BY JUDGE JOSEPH E. BAKER
SEPTEMBER 23, 1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
Everett A. Martin, Jr., Judge
Kelly L. Daniels (Andrew A. Protogyrou;
Knight, Dudley, Clarke & Dolph, P.L.C., on
brief), for appellant.
Leah A. Darron, Assistant Attorney General
(James S. Gilmore, III, Attorney General;
H. Elizabeth Shaffer, Assistant Attorney
General; Monica S. McElyea, Assistant
Attorney General, on brief), for appellee.
The sole issue presented by this appeal is whether there is
sufficient evidence to support Ronnie Lee Banks' (appellant) jury
trial conviction, approved by the Circuit Court of the City of
Norfolk (trial court), for possession of heroin with intent to
distribute in violation of Code § 18.2-248. Appellant does not
contest the sufficiency of the evidence to prove he unlawfully
possessed heroin. Finding no error, we affirm the judgment of
the trial court.
Upon familiar principles, we view the evidence in the light
most favorable to the Commonwealth, granting to it all inferences
fairly deducible therefrom. See Martin v. Commonwealth, 4 Va.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
App. 438, 443, 358 S.E.2d 415, 418 (1987). Viewed accordingly,
the record discloses that on December 14, 1995, Norfolk Police
Officers D. B. Huffman and C. R. Amos were patrolling the Grandy
Village section of Norfolk. They observed four men nearby,
standing in a semi-circle, one of whom was appellant who was
dressed entirely in brown clothing. As the officers neared the
men, one of them looked toward the officers and spoke to the
others standing with him.
Appellant immediately threw a box to the ground with his
right hand and quickly walked away with another individual. As
the officers exited their vehicle, appellant and his companion
began to run and entered a residence at 2929 Kimball Terrace
through the back door. Huffman recovered the box and discovered
it contained heroin in eighteen individual glassine baggies.
Huffman and Amos then proceeded to the residence, 1 where
Huffman identified appellant, who was dressed in brown, as the
person who had thrown the box. Huffman and Amos apprehended
appellant and placed him in custody on suspicion of possession
with intent to distribute heroin.
John J. Monaghan, Jr., a vice and narcotics investigator for
the Norfolk Police Department, testified that he had been a
narcotics investigator for twenty-one years, had conducted
investigations of both heroin users and sellers, and had made
1
This was not appellant's residence. Appellant's residence
was in Virginia Beach.
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arrests of between two hundred and three hundred heroin users and
an equal number of heroin sellers. Without objection, he
testified that, "[n]ormally, users would buy one or two packets
to take back to their residence or to a shooting gallery, cook it
up and inject it." He described a shooting gallery as a place
where one could pay several dollars to the owner or the renter of
the premises to "cook up [the] drugs" and inject them into one's
arm. The total value of the heroin in this case was between $180
and $200, each bag recovered being worth $10 to $12. The actual
price usually depended upon the quality and the dealer. Monaghan
also testified that, although he had seen users whose drug habits
exceeded $100 to $200 a day, users do not buy such a quantity at
one time for fear that, if caught, they will be charged with the
greater offense of intent to distribute and will lose the supply
necessary to their habit.
On his motion to strike the Commonwealth's evidence, counsel
for appellant stipulated that the packaging of the heroin in
eighteen baggies was inconsistent with personal use. Appellant
provided no evidence that he was addicted to heroin or was a
casual user.
"Intent necessarily must be proved by circumstances," and
"[q]uantity, when greater than the supply ordinarily possessed by
a narcotics user for his personal use, is a circumstance which,
standing alone, may be sufficient to support a finding of intent
to distribute," even where "the record is silent as to whether
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[the accused] was a user." Hunter v. Commonwealth, 213 Va. 569,
570-71, 193 S.E.2d 779, 780 (1973). In the case before us,
substantial evidence disclosed that the quantity and packaging of
the drugs held by appellant were inconsistent with personal use,
a fact that appellant conceded.
At trial, Monaghan, conceded to be an expert in illegal drug
transactions, testified that the quantity of and method of
packaging the heroin were inconsistent with personal use, and
thereby, inferentially, that they were consistent with
distribution. In Gregory v. Commonwealth, 22 Va. App. 100, 468
S.E.2d 117 (1996), where there was no evidence proving the
possessor was a user, we held that testimony such as Monaghan
gave is sufficient to support a verdict that the defendant
possessed the illegal narcotic with intent to distribute. See
id. at 110-11, 468 S.E.2d at 122-23.
Although Monaghan testified that in an extreme case a user
could possess a similar quantity, he also indicated that users do
not buy a quantity to satisfy their daily needs all at once for
fear they will lose their supply if found in possession of the
quantity found here. Notwithstanding similar testimony in
Gregory, we held that such evidence, viewed in the light most
favorable to the Commonwealth, is sufficient to support the
jury's verdict. Id.
Accordingly, we affirm the judgment of the trial court.
Affirmed.
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