Jesse Lightner Park v. Commonwealth ( 2003 )


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  •                                  COURT OF APPEALS OF VIRGINIA
    Present: Chief Judge Fitzpatrick, Judges Benton and Clements
    Argued at Alexandria, Virginia
    JESSE LIGHTNER PARK
    MEMORANDUM OPINION* BY
    v.     Record No. 2578-02-4                            CHIEF JUDGE JOHANNA L. FITZPATRICK
    DECEMBER 2, 2003
    COMMONWEALTH OF VIRGINIA
    FROM THE CIRCUIT COURT OF STAFFORD COUNTY
    James W. Haley, Jr., Judge
    Marvin D. Miller (Terri J. Harris; Law Offices of Marvin D.
    Miller, on briefs), for appellant.
    Kathleen B. Martin, Assistant Attorney General (Jerry W. Kilgore,
    Attorney General, on brief), for appellee.
    Jesse Lightner Park (appellant) appeals his conviction for possession with intent to distribute
    marijuana in violation of Code § 18.2-248.1. Appellant contends that the circumstantial evidence
    used to convict him did not exclude every reasonable hypothesis of innocence. He further
    contends that the trial court imposed an invalid sentence by sentencing him to an indefinite
    period of probation. For the following reasons, we affirm.
    I. BACKGROUND
    On appeal the evidence and all reasonable inferences flowing therefrom must be viewed
    in the light most favorable to the prevailing party below, the Commonwealth. Derr v.
    Commonwealth, 
    242 Va. 413
    , 424, 
    410 S.E.2d 662
    , 668 (1991); Archer v. Commonwealth, 
    26 Va. App. 1
    , 11, 
    492 S.E.2d 826
    , 831 (1997).
    * Pursuant to Code § 17.1-413, this opinion is not designated for publication.
    At trial, appellant conceded that
    he was in possession of the marijuana and was in possession of
    approximately three thousand dollars and we are not contesting the
    stop . . . . What we are asking your Honor to do is to make one of
    three decisions . . . either he was in possession with intent to
    distribute less than one to ten, as charged in the indictment, or he
    was in simple possession, or he was in possession with intent to
    distribute as an accommodation.
    The amount of marijuana seized was 11.58 ounces. Appellant also stipulated to the
    admissibility of a cell phone, the lab report, an “owe sheet,” currency, and baggies.
    Additionally, Sheriff McDowell (McDowell) found $1,102 in appellant’s wallet which was in the
    passenger seat of the vehicle, and $2,204 in his front left pocket.
    Appellant stipulated that Detective Eric Jesse (Jesse) would testify that possession of one
    ounce or less of marijuana suggests personal use and that possession of a pound is inconsistent
    with personal use. However, “he has on occasion seen marijuana in that amount” for personal
    use. Appellant also stipulated that Jesse would testify that the value of the 11.58 ounces of
    marijuana that appellant possessed had a value of between $1,200 and $4,000, depending on the
    market. The marijuana, money, cell phone, baggies, and papers were admitted into evidence, but
    the Commonwealth presented no additional testimony connecting these items to the process of
    distribution.
    Appellant called one witness, William Spinks (Spinks), who testified that he had known
    appellant for about 15 years and that he used to smoke marijuana, but had quit since his daughter
    was born. Spinks further testified that when he did smoke marijuana, he smoked an ounce in
    about four days, and purchased both pounds and ounces for personal use. Spinks testified that he
    purchased a Yamaha four-wheeler from appellant on September 17, 2001, the same day
    appellant was arrested, and paid him $3,000 in cash. On cross-examination, Spinks testified that
    he did not remember the denominations of bills he gave appellant when purchasing the
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    four-wheeler. He also testified that he did not notice what appellant did with the money after
    Spinks gave it to him. Spinks had no bill of sale for the four-wheeler.
    Appellant argued at trial that the evidence was insufficient to convict him of possession
    with intent to distribute the marijuana because the Commonwealth failed to connect the
    stipulated evidence to the intent to distribute and that quantity alone was insufficient to establish
    intent to distribute.
    The trial court found appellant guilty of possession with intent to distribute, and noted
    that the evidence established that appellant had over $3,000 in cash separated from his pocket
    and wallet, and the amount of marijuana found was 11.58 ounces. The trial court also found that
    Spinks’ testimony regarding the four-wheeler sale was not credible. The trial court found
    appellant guilty and sentenced him to ten years in prison, and suspended seven years of the
    sentence conditioned upon good behavior for twenty years. The court sentenced appellant to
    supervised probation “for an indefinite period, or unless sooner released by the court or by the
    probation officer.”
    II. SUFFICIENCY OF EVIDENCE
    “When the sufficiency of the evidence is challenged on appeal, we determine whether the
    evidence, viewed in the light most favorable to the prevailing party, the Commonwealth, and the
    reasonable inferences fairly deducible from that evidence support each and every element of the
    charged offense.” Haskins v. Commonwealth, 
    31 Va. App. 145
    , 149-50, 
    521 S.E.2d 777
    , 779
    (1999). “In so doing, we must discard the evidence of the accused in conflict with that of the
    Commonwealth, and regard as true all the credible evidence favorable to the Commonwealth and
    all fair inferences that may be drawn therefrom.” Watkins v. Commonwealth, 
    26 Va. App. 335
    ,
    348, 
    494 S.E.2d 859
    , 866 (1998).
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    Circumstantial evidence may establish the elements of a crime, provided it excludes
    every reasonable hypothesis of innocence. See, e.g., Tucker v. Commonwealth, 
    18 Va. App. 141
    , 143, 
    442 S.E.2d 419
    , 420 (1994). “The statement that circumstantial evidence must exclude
    every reasonable theory of innocence is simply another way of stating that the Commonwealth
    has the burden of proof beyond a reasonable doubt.” Commonwealth v. Hudson, 
    265 Va. 505
    ,
    513, 
    578 S.E.2d 781
    , 785 (2003). This Court must determine “not whether ‘there is some
    evidence to support’” appellant’s hypothesis of innocence, but, rather, “whether a reasonable
    [fact finder], upon consideration of all the evidence, could have rejected [appellant’s] theories
    . . . and found him guilty . . . beyond a reasonable doubt.” 
    Id.
     Whether a hypothesis of
    innocence is reasonable is a question of fact, see Cantrell v. Commonwealth, 
    7 Va. App. 269
    ,
    290, 
    373 S.E.2d 328
    , 339 (1988), and a finding by the trial court is binding on appeal unless
    plainly wrong, see Glasco v. Commonwealth, 
    26 Va. App. 763
    , 774, 
    497 S.E.2d 150
    , 155 (1998).
    “Circumstances relevant to proof of an intent to distribute include the quantity of drugs
    and cash possessed, the method of packaging, and whether [defendant] himself used drugs.”
    Jones v. Commonwealth, 
    23 Va. App. 93
    , 100, 
    474 S.E.2d 825
    , 828 (1996) (internal quotations
    and citation omitted). Appellant contends that the circumstantial evidence used to convict him
    did not exclude every reasonable hypothesis of innocence. We disagree.
    Appellant stipulated that he was in possession of nearly a pound of marijuana and that
    this amount was ordinarily inconsistent with personal use. “Possession of a quantity greater than
    that ordinarily possessed for one’s personal use may be sufficient to establish an intent to
    distribute.” Gregory v. Commonwealth, 
    22 Va. App. 100
    , 110, 
    468 S.E.2d 117
    , 122 (1996).
    Although Detective Jesse testified that he has, on occasion, seen nearly a pound of marijuana
    designated for personal use, this is generally not the case. However, no paraphernalia to smoke
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    the marijuana was found. See Askew v. Commonwealth, 
    40 Va. App. 104
    , 108, 
    578 S.E.2d 58
    ,
    60 (2003) (absence of paraphernalia is “regularly recognized” as a factor indicating intent to
    distribute); Glasco, 
    26 Va. App. at 775
    , 
    497 S.E.2d at 156
    .
    Additionally, appellant had over $3,000 in cash divided between $1,102 found in his
    wallet on the passenger seat of the vehicle, and $2,204 found in his front left pocket. See 
    id.
    (possession of a large sum of money ($650) “regularly recognized as [a factor] indicating an
    intent to distribute”); Christian v. Commonwealth, 
    33 Va. App. 704
    , 716, 
    536 S.E.2d 477
    , 483
    (2000) ($935). The only evidence appellant offered to explain the presence of such a large
    amount of cash was the testimony of William Spinks, who claimed that he had given appellant
    over $3,000 to purchase a “four-wheeler.” The trial court found Spinks’ testimony not to be
    credible. See 
    id.
     Thus, the trial court reasonably inferred that the presence of $3,000 in cash
    supported its finding that appellant intended to distribute the marijuana in his possession. Even
    assuming the Commonwealth failed to present evidence that the stipulated “owe sheet” was a
    drug “owe sheet,” a reasonable fact finder upon consideration of all the evidence could find him
    guilty beyond a reasonable doubt.
    Appellant also contends that he was sentenced to an improper period of probation. The
    Commonwealth argues that the appellant’s assignment of error is procedurally barred because he
    failed to timely object to the sentence. Because appellant did not preserve this issue at trial, it is
    procedurally barred.
    “No ruling of the trial court will be considered as a basis for reversal unless the objection
    was stated together with the grounds therefor at the time of the ruling, except for good cause
    shown or to enable the Court of Appeals to attain the ends of justice.” Rule 5A:18. See Jacques
    v. Commonwealth, 
    12 Va. App. 591
    , 593, 
    405 S.E.2d 630
    , 631 (1991) (citing Rule 5A:18).
    Therefore, appellant’s argument on appeal is procedurally barred by Rule 5A:18.
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    The ends of justice exception to Rule 5A:18 does not apply. “The ends of justice
    exception is narrow and is to be used sparingly.” Brown v. Commonwealth, 
    8 Va. App. 126
    ,
    132, 
    380 S.E.2d 8
    , 10 (1989). In order to avail oneself of the exception, a defendant must
    affirmatively show that a miscarriage of justice has occurred, not that a miscarriage might have
    occurred. Mounce v. Commonwealth, 
    4 Va. App. 433
    , 436, 
    357 S.E.2d 742
    , 744 (1987). The
    trial error must be “clear, substantial and material.” Brown, 8 Va. App. at 132, 
    380 S.E.2d at 11
    ;
    Redman v. Commonwealth, 
    25 Va. App. 215
    , 221, 
    487 S.E.2d 269
    , 272 (1997).
    No miscarriage of justice has occurred in this case. The trial court’s sentencing order
    specifically limits the period of supervised probation to twenty years or less, in accordance with
    the specified length of the suspension period.
    We therefore affirm the trial court.
    Affirmed.
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    Benton, J., dissenting.
    At the guilt phase of the trial, the prosecutor submitted the Commonwealth’s case for the
    judge’s decision upon only a stipulation of evidence and tangible exhibits. Jesse Lightner Park
    stipulated that he possessed 11.58 ounces of marijuana when the officer stopped him on
    September 17, 2001 in an automobile and that the marijuana had a value between $1,200 and
    $4,000. He also stipulated that the arresting officer would testify this amount is inconsistent with
    personal use but that the officer additionally would testify he “has on occasion seen marijuana in
    that amount” for personal use. Park stipulated that the officer found somewhere in his
    automobile a cellular telephone, baggies, and two pieces of paper, which the judge described as
    follows:
    [The officer found] . . . two pieces of paper, one of which
    deals with income and assets and expenses paid, the second of
    which is a piece of paper with a number of names on it -- one, two,
    three, four, five, six, seven, eight, nine, ten -- ten names with
    various sums across from those names, from a larger or lesser
    sum. . . .
    These names, accordingly -- your client’s friend, who had
    known him for fifteen years, was not familiar with any of these
    individuals or their names.
    Park further stipulated that he had slightly in excess of $3,000 in his wallet and his
    pocket. The evidence at the guilt phase of the trial did not include any statements that Park may
    have made to the arresting officer. Furthermore, the prosecutor did not present testimony from
    the arresting officer or any other witness.
    Park’s witness testified that he had purchased a “four-wheeler” Yamaha vehicle from
    Park the day Park was arrested. He testified that he gave Park $3,000 cash for the purchase of
    the vehicle. Park’s witness also testified that, in the past, he had purchased marijuana for his
    own use in quantities of both “a pound or an ounce, depending on how much [he] could afford.”
    Reflecting an obvious market reality and risk, he testified that “if you buy it larger, as in the
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    pound, then its cheaper on you . . . and then you don’t have to go back and buy it as many
    times.”
    “The Commonwealth had the burden to prove beyond a reasonable doubt that [Park]
    possessed the marijuana with intent to distribute.” Dukes v. Commonwealth, 
    227 Va. 119
    , 123,
    
    313 S.E.2d 382
    , 384 (1984). Thus, the principle is well established that when “the circumstantial
    evidence of such intent, when viewed in the light most favorable to the Commonwealth, fails to
    ‘exclude every reasonable hypothesis of innocence,’” the Commonwealth has not met its burden
    of proof. 
    Id.
    The Commonwealth asserts that the officer’s stipulated testimony establishes the amount
    of marijuana was inconsistent with personal use. The record, however, establishes that the
    stipulation rendered this issue in a state of equipoise because the stipulation also contained the
    officer’s view that, in his experience, this amount of marijuana has been possessed for personal
    use. Thus, “this is a case where the prosecution has presented . . . two different accounts of the
    essential facts relating to a crucial element of the crime.” Moore v. Commonwealth, 
    254 Va. 184
    , 189, 
    491 S.E.2d 739
    , 742 (1997). The principle has long been established that “‘where a
    fact is equally susceptible of two interpretations one of which is consistent with the innocence of
    the accused, [the trier of fact] cannot arbitrarily adopt that interpretation which incriminates
    him.’” Corbett v. Commonwealth, 
    210 Va. 304
    , 307, 
    171 S.E.2d 251
    , 253 (1969) (citation
    omitted). The stipulated evidence, therefore, logically established that the amount of marijuana
    was not inconsistent with possession for personal use.
    The other evidence in the record is equally deficient and fails to satisfy the
    Commonwealth’s burden to establish beyond a reasonable doubt that Park intended to distribute
    the marijuana. No evidence in the record established that the papers bore any connection to the
    marijuana or to Park’s intent to use the marijuana. The trial judge’s observation about these
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    exhibits, that one related to “income and assets and expenses” and that the other contained “ten
    names with various sums across from those names,” is nothing more that a vague description of
    the papers and discloses no relationship between the nature of the writings and the fact to be
    proved. One exhibit, which is a paper containing ten names and some numbers, does not
    establish money was owed to anyone. Even if the figures are assumed to represent money, the
    paper does not indicate how much money was owed to whom and for what purpose. The other
    exhibit is an 8x11 pad of lined paper with notations under items designated “car insurance,”
    “grocerys,” “invest/bank,” “paid Buddy,” “rent,” “save,” “mom paid,” “started work,” and “pay
    date.” Absent some connective evidence, the judge merely engaged in “speculation and
    conjecture” in concluding that these papers related to an intent to distribute the marijuana.
    Wright v. Commonwealth, 
    217 Va. 669
    , 670, 
    232 S.E.2d 733
    , 734 (1977). “Suspicion, no matter
    how strong, is not enough. Convictions cannot rest upon speculation and conjecture.” Littlejohn
    v. Commonwealth, 
    24 Va. App. 401
    , 415, 
    482 S.E.2d 853
    , 860 (1997) (citation omitted).
    Likewise, proof that Park possessed $3,000 merely raises the opportunity to speculate
    about its origin or its intended use. The Commonwealth advanced no evidence or argument to
    tie the money to the marijuana Park possessed or to prove the requisite element of intent. The
    trial judge’s rejection of Park’s witness’ testimony that, earlier on the day of Park’s arrest, he had
    purchased a vehicle from Parks for $3,000 cash, does not provide a factual basis for establishing
    that the money was someway connected to an intent to distribute the marijuana. See Tarpley v.
    Commonwealth, 
    261 Va. 251
    , 256-57, 
    542 S.E.2d 761
    , 764 (2001). Even on appeal, the
    Commonwealth merely makes the assertion that “possession of a large amount of cash -- $3306
    -- was a further factor establishing intent to distribute.” Only by speculation could the trier of
    fact conclude the cash somehow is related to the marijuana in Park’s possession or Park’s intent.
    In a similar vein, it seems almost too simplistic to say that in the year 2003 the possession of a
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    cellular telephone proves nothing more than the fact that Park uses it, as do an increasing number
    of people, as a means of communication.
    Simply put, the Commonwealth relies on suspicious circumstances and leaps of logic to
    make the connections needed to establish the necessary element of intent.
    It is well settled in Virginia that to justify conviction of a
    crime, it is not sufficient to create a suspicion or probability of
    guilt, but the evidence must establish the guilt of an accused
    beyond a reasonable doubt. It must exclude every reasonable
    hypothesis except that of guilt. The guilt of a party is not to be
    inferred because the facts are consistent with his guilt, but they
    must be inconsistent with his innocence.
    Cameron v. Commonwealth, 
    211 Va. 108
    , 110-11, 
    175 S.E.2d 275
    , 276 (1970) (citations
    omitted). At trial, the prosecutor presented stipulated facts of circumstances that, while
    interesting, do not tend to do more than present a hypothesis of suspicion.
    I would hold that the stipulated evidence was insufficient to prove beyond a reasonable
    doubt that Park had the intent to distribute the marijuana. The evidence in this case is not
    inconsistent with the hypothesis that Park possessed the marijuana for his personal use.
    Therefore, I would reverse the conviction for possession with intent to distribute and remand to
    the trial court.
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