Emanuel Donta Holley s/k/a v. Commonwealth of VA ( 2002 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Bumgardner and Clements
Argued at Chesapeake, Virginia
EMANUEL DONTA HOLLEY, S/K/A
EMANUEL E. HOLLEY
MEMORANDUM OPINION * BY
v. Record No. 1085-01-1 JUDGE RICHARD S. BRAY
APRIL 9, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
Johnny E. Morrison, Judge
Joseph R. Winston, Special Appellate Counsel
(Public Defender Commission, on briefs), for
appellant.
Michael T. Judge, Assistant Attorney General
(Randolph A. Beales, Attorney General, on
brief), for appellee.
Emanuel Donta Holley (defendant) was convicted in a bench
trial for possession of cocaine with intent to distribute, a
violation of Code § 18.2-248. On appeal, he challenges the
sufficiency of the evidence to prove the requisite intent to
distribute. Finding no error, we affirm the conviction.
The parties are fully conversant with the record, and this
memorandum opinion recites only those facts necessary to a
disposition of the appeal.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
In accordance with well established principles, we consider
the evidence in the light most favorable to the party prevailing
below, the Commonwealth in this instance. Watkins v.
Commonwealth, 26 Va. App. 335, 348, 494 S.E.2d 859, 866 (1998)
(citation omitted).
Viewed accordingly, the evidence disclosed that, on the
evening of October 12, 2000, Portsmouth Police Officers D.B.
Smith and S.W. Johnson observed three men "standing on [a]
sidewalk" and detected a "strong odor of burnt marijuana." As
the officers approached the group, defendant "bent down[,] . . .
did something by his boot" or "pants leg" and began to "walk
off," onto property of the Portsmouth Redevelopment and Housing
Authority (PRHA).
While Smith was "speaking" with defendant, Johnson
collected marijuana and a "burning marijuana joint" from the
ground adjacent to the men. Defendant suddenly became "very
defensive," disassociating himself with the marijuana. Johnson
then recognized defendant from a previous encounter and advised
Smith "he had warned [defendant] previously about trespassing"
on PRHA property. As Smith "went to . . . arrest [defendant]
for trespassing," defendant "pulled his jeans up[,] kicked both
his legs up," and "a baggie of crack cocaine," "not quite the
size of a golf ball," fell "from his left boot." The cocaine
was described as "several large rocks."
- 2 -
A search of defendant's person incidental to arrest yielded
a cellular telephone, a pager and $925 cash in $1 to $50 bills,
segregated by denomination. A certificate of analysis,
introduced into evidence, reported the "baggie" contained 3.72
grams of cocaine, but defendant possessed no paraphernalia
related to use of the drug.
At trial, Detective B.J. Karpowski, III was qualified as
"an expert concerning the sale, packaging, use, and distribution
of narcotics." Without objection, Karpowski opined that "the
lack of any devices used to ingest cocaine," "the nine hundred
twenty-five dollars in various denominations, . . . broken down
into several different types of bills ranging from one dollar
bills all the way up to fifty dollar bills," and the possession
of "several large rocks" of crack cocaine were "inconsistent
with personal use" of the drug. 1 Karpowski fixed the "street
value" of the cocaine at $372.
Recalling the encounter with Officers Smith and Johnson,
defendant testified he had spoken with "two guys" and was
proceeding to a nearby residence when the police approached and
confronted and arrested him. He explained that the cash on his
person "came from work," "saving up," the "cell phone [was] for
[his] child when he get[s] sick," and the pager was "us[ed]
1
Karpowski discounted the "significan[ce]" of the cell
phone and pager to his conclusion.
- 3 -
. . . before [he] got the phone." Defendant did not address the
cocaine found in his possession.
On appeal, defendant challenges the sufficiency of the
evidence to prove the requisite intent to distribute the
cocaine. 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." Martin v. Commonwealth, 4 Va. App. 438,
443, 358 S.E.2d 415, 418 (1987). The credibility of a witness,
the weight accorded testimony, and the inferences drawn from
proven 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). "The judgment of a trial court . . . will be
disturbed only if plainly wrong or without evidence to support
it." Martin, 4 Va. App. at 443, 358 S.E.2d at 418.
"[F]or a defendant to be convicted of possession of a
controlled substance with the intent to distribute, the
Commonwealth must prove that the defendant possessed the
controlled substance contemporaneously with his intention to
distribute that substance." Stanley v. Commonwealth, 12
Va. App. 867, 869, 407 S.E.2d 13, 15 (1991) (en banc). "Because
direct proof of intent [to distribute drugs] is often
impossible, it must be shown by circumstantial evidence."
Servis v. Commonwealth, 6 Va. App. 507, 524, 371 S.E.2d 156, 165
(1988).
- 4 -
"Circumstantial evidence is sufficient to support a
conviction as long as it excludes every reasonable hypothesis of
innocence." Tucker v. Commonwealth, 18 Va. App. 141, 143, 442
S.E.2d 419, 420 (1994). However, "[t]he Commonwealth need only
exclude reasonable hypotheses of innocence that flow from the
evidence, not those that spring from the imagination of the
defendant." Hamilton v. Commonwealth, 16 Va. App. 751, 755, 433
S.E.2d 27, 29 (1993) (citations omitted). 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 Martin, 4 Va. App. at 443, 358 S.E.2d
at 418.
Circumstances probative of an 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 v.
Commonwealth, 261 Va. 483, 493, 545 S.E.2d 541, 547 (2001)
(citations omitted). Possession of such cash "in small
denominations" and the absence of evidence that an accused used
the drug are also factors indicative of an intent to distribute.
Glasco v. Commonwealth, 26 Va. App. 763, 775, 497 S.E.2d 150,
156 (1998) (citations omitted), aff'd, 257 Va. 433, 513 S.E.2d
137 (1999).
- 5 -
Here, Officer Smith discovered 3.72 grams of cocaine, "in
several large rocks," together with $925 cash in $1 to $50
bills, segregated by denomination, circumstances deemed by an
expert as inconsistent with personal use of the drug. Moreover,
no related paraphernalia or other evidence suggested defendant
personally used the drug. Although defendant attributed the
money to wages, "[t]he trial court was entitled to disbelieve
[defendant's] explanation and conclude that he lied to conceal
his guilt." Dunbar v. Commonwealth, 29 Va. App. 387, 394, 512
S.E.2d 823, 827 (1999) (citation omitted).
Such evidence sufficiently established beyond a reasonable
doubt that defendant possessed the cocaine with the necessary
intent to distribute. Accordingly, we affirm the conviction.
Affirmed.
- 6 -