Wendall Vaccaro McNeal, s/k/a Wendell v. McNeal v. Commonwealth ( 2005 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Bumgardner, Clements and McClanahan
Argued at Richmond, Virginia
WENDALL VACCARO McNEAL, S/K/A
WENDELL V. McNEAL
MEMORANDUM OPINION* BY
v. Record No. 0668-04-2 JUDGE RUDOLPH BUMGARDNER, III
MARCH 29, 2005
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
Frederick G. Rockwell, III, Judge
William P. Irwin, V (Bowen, Champlin, Carr & Rockecharlie, on
brief), for appellant.
Leah A. Darron, Assistant Attorney General (Jerry W. Kilgore,
Attorney General, on brief), for appellee.
Wendall V. McNeal was convicted of possession of cocaine with intent to distribute and
possession of a firearm while in possession of cocaine. He maintains that the police seized the
drugs without probable cause and that the evidence was insufficient to prove possession with
intent to distribute.
The defendant concedes the police lawfully stopped the car in which he was the front-seat
passenger known as Todd. For the reasons stated in the companion case Fraierson v.
Commonwealth, No. 1147-04-2 (March 29, 2005), this day decided, we affirm on the first issue
raised in this appeal. The police developed probable cause before they arrested or searched the
defendant.
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
When reviewing the sufficiency of the evidence, we view the evidence in the light most
favorable to the Commonwealth and grant to it all reasonable inferences fairly deducible
therefrom. Commonwealth v. Hudson, 265 Va. 505, 513, 578 S.E.2d 781, 785 (2003). We also
“examine the evidence that tends to support the conviction and to uphold the conviction unless it
is plainly wrong or without evidence to support it.” McCain v. Commonwealth, 261 Va. 483,
492-93, 545 S.E.2d 541, 547 (2001).
A confidential informant approached the Chesterfield County Police with an offer to
exchange information for leniency on two pending charges. Officer Henderson determined that
the informant was “very knowledgeable” regarding the use and sale of drugs. The informant told
the police about a black male, approximately 6 feet tall weighing about 160 pounds named
“Todd” who sold drugs. He arranged to buy $100 of crack cocaine from Todd at a particular
Chevron gas station. The informant advised that Todd would arrive in an older model tan
Pontiac Bonneville, and he provided the police with the cell phone number that he used to
contact Todd.
On the day of the arranged buy, the informant accompanied Officer Gordon to the gas
station. They parked within sight of the station but remained in the police vehicle. The
informant contacted Todd several times by cell phone. After about 40 minutes, while talking on
the phone to Todd, the informant relayed the message to Officer Gordon that Todd said, “I am
pulling into the lot now.” As he spoke, a brown Pontiac Bonneville pulled onto the parking lot
of the Chevron station. It contained two passengers in addition to the driver. The informant later
identified the passenger in the front seat as Todd, the defendant.
The police recovered .143 grams of powder cocaine and 2.182 grams of solid cocaine
inside the defendant’s underwear. They were packaged in two plastic bags found inside a larger
plastic bag that contained 1.04 grams of marijuana. The defendant had $220 in the pocket of his
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sweatpants, “folded in hundred dollar increments,” a twenty-dollar bill in his back pocket, and
$52 in his front left pocket. The police recovered a handgun, which the defendant admitted was
his, under his seat.
The factors to consider in determining whether a suspect possessed drugs with the intent
to distribute include “the quantity of the drugs seized, the manner in which they are packaged,
and the presence of an unusual amount of cash, equipment related to drug distribution, or
firearms.” McCain, 261 Va. at 493, 545 S.E.2d at 547. In this case, an informant arranged to
buy cocaine from Todd at a specific time, date, and place. While announcing his arrival at the
scene by telephone, Todd arrived in the precise manner expected. The defendant possessed a
quantity of cocaine inconsistent with personal use, a large amount of cash, and a firearm. He
was present precisely as arranged, ready, and able to sell cocaine. The evidence permitted the
reasonable inference that the defendant was willing to do so; that is, he intended to do so.
Accordingly, we affirm.
Affirmed.
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