Glenn Graad Gregory v. Commonwealth ( 2003 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Annunziata, Frank and Senior Judge Bray
Argued at Chesapeake, Virginia
GLENN GRAAD GREGORY
MEMORANDUM OPINION * BY
v. Record No. 0441-02-1 JUDGE ROBERT P. FRANK
FEBRUARY 11, 2003
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
Robert W. Curran, Judge
Richard C. Kerns for appellant.
Eugene Murphy, Assistant Attorney General
(Jerry W. Kilgore, Attorney General, on
brief), for appellee.
Glenn Graard Gregory (appellant) was convicted in a bench
trial of possession with the intent to distribute cocaine, in
violation of Code § 18.2-248. On appeal, he contends the trial
court erred in finding the evidence sufficient to show he intended
to distribute the drugs. For the reasons stated, we affirm.
The standard of review in sufficiency cases is well
established.
In reviewing the sufficiency of the
evidence, we examine the record in the light
most favorable to the Commonwealth, granting
to it all reasonable inferences fairly
deducible therefrom. See Martin v.
Commonwealth, 4 Va. App. 438, 443, 358
S.E.2d 415, 418 (1987). The judgment of a
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
trial court will be disturbed only if
plainly wrong or without evidence to support
it. See id. The credibility of a witness,
the weight accorded the testimony, and the
inferences to be drawn from proved facts are
matters to be determined by the fact finder.
See Long v. Commonwealth, 8 Va. App. 194,
199, 379 S.E.2d 473, 476 (1989).
Glasco v. Commonwealth, 26 Va. App. 763, 773, 497 S.E.2d 150,
155 (1998), aff'd on alt. grounds, 257 Va. 433, 513 S.E.2d 137(1999).
In this case, appellant specifically argues the evidence of
intent to distribute, an essential element of the crime, was
insufficient.
Where an offense consists of an act combined
with a particular intent, proof of the
intent is essential to the conviction.
Patterson v. Commonwealth, 215 Va. 698, 699,
213 S.E.2d 752, 753 (1975). Because direct
proof of intent is often impossible, it must
be shown by circumstantial evidence. But
"[w]here . . . the Commonwealth's evidence
of intent to distribute is wholly
circumstantial, 'all necessary circumstances
proved must be consistent with guilt and
inconsistent with innocence and exclude
every reasonable hypothesis of innocence.'"
Wells v. Commonwealth, 2 Va. App. 549, 551,
347 S.E.2d 139, 140 (1986) (quoting Inge v.
Commonwealth, 217 Va. 360, 366, 228 S.E.2d
563, 567 (1976)).
Servis v. Commonwealth, 6 Va. App. 507, 524, 371 S.E.2d 156, 165
(1988).
When the proof of intent to distribute is based upon
circumstantial evidence, as it is here, the quantity possessed
is "a circumstance to be considered." Dukes v. Commonwealth,
- 2 -
227 Va. 119, 122, 313 S.E.2d 382, 383 (1984). "Indeed,
quantity, 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." Hunter v. Commonwealth, 213 Va. 569, 570, 193
S.E.2d 779, 780 (1973). Other factors to consider include the
manner in which the drugs are packaged, the presence of a large
amount of cash or firearms, and the presence of equipment related
to drug distribution. See, e.g., Dukes, 227 Va. at 123, 313
S.E.2d at 384 (the manner in which marijuana was packaged);
Colbert v. Commonwealth, 219 Va. 1, 3-4, 244 S.E.2d 748, 749
(1978) (the packaging of the recovered marijuana and the discovery
of over $200 in cash); Wells v. Commonwealth, 32 Va. App. 775,
782-83, 531 S.E.2d 16, 19 (2000) (evidence of drug distribution
paraphernalia and of a large amount of cash); Clarke v.
Commonwealth, 32 Va. App. 286, 305, 527 S.E.2d 484, 493 (2000)
(place where the drugs were found and the presence of a pistol).
Additional factors include a defendant's use of drugs, see, e.g.,
Poindexter v. Commonwealth, 16 Va. App. 730, 735, 432 S.E.2d 527,
530 (1993), and the absence of evidence suggesting personal use,
see, e.g., Clarke, 32 Va. App. at 305, 527 S.E.2d at 493.
Appellant does not challenge the finding that he possessed
cocaine. Instead, he contends the evidence was insufficient to
establish any intent to distribute the drug. However,
- 3 -
consideration of the entirety of the evidence supports the trial
court's finding of guilt.
Appellant contends the 6.4 grams of cocaine found in his
pocket were for personal use. However, the expert testimony and
the physical evidence support the court's finding of an intent to
distribute.
The cocaine, worth approximately $640, consisted of "one
large rock" and several smaller pieces. The police found the
cocaine in appellant's pocket, together with $135 in cash.
Appellant had ten dollars in his other pants pocket. Appellant
had a pager on his waistband. In the room where the police found
appellant, they also found, in plain view, a digital scale with a
razor blade on top. The Commonwealth's expert testified that the
quantity of cocaine was inconsistent with personal use. The only
evidence to support the appellant's claim of personal drug use was
the smoking stems found upstairs. The police found no
paraphernalia for personal drug use near appellant.
Although appellant provided explanations for his possession,
the fact finder chose not to believe him. Based on the totality
of the circumstances, the trial court could reasonably conclude
appellant did intend to distribute cocaine. See Carter v.
Commonwealth, 223 Va. 528, 532, 290 S.E.2d 865, 867 (1982). We
find the evidence was sufficient to convict and affirm the
conviction.
Affirmed.
- 4 -