Willie Lee Williams, Jr. v. Commonwealth ( 1995 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Senior Judge Cole
Argued at Richmond, Virginia
WILLIE LEE WILLIAMS, JR.
v. Record No. 0749-94-2 MEMORANDUM OPINION *
BY JUDGE MARVIN F. COLE
COMMONWEALTH OF VIRGINIA DECEMBER 5, 1995
FROM THE CIRCUIT COURT OF HALIFAX COUNTY
William L. Wellons, Judge
Buddy A. Ward, Public Defender (Office of the
Public Defender, on brief), for appellant.
Eugene Murphy, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
Willie Lee Williams, Jr. was convicted of possession of
heroin with the intent to distribute in violation of Code
§ 18.2-248. On appeal, Williams contends that the evidence was
insufficient to prove beyond a reasonable doubt that he possessed
the heroin with the intent to distribute it. We disagree and
affirm.
I.
On January 7, 1993, Investigator Loftis, of the South Boston
Police Department, stopped a car in which Williams was the sole
occupant. Loftis issued Williams a traffic summons and impounded
Williams' car because Williams' operator's license had expired
and the car lacked a front license plate.
The police conducted an inventory search of the car. In the
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
trunk of the car, Loftis found a glasses case inside of a shaving
kit. The glasses case contained a clear plastic bag that
contained twenty-eight small plastic bags filled with heroin.
The total weight of the heroin was 4.66 grams.
Loftis, who was qualified as an expert witness in the
preparation and distribution of drugs, testified that the amount
of heroin and the method of its packaging was inconsistent with
personal use. Loftis stated, "You just don't see that amount for
personal use. Usually it's a very small amount." Loftis also
testified the heroin would sell for $50 per packet in South
Boston on January 7, 1993.
In his written statement, appellant denied any knowledge of
drugs in the car.
II.
"On appeal, we review the evidence 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). "In proving
intent, various types of circumstantial evidence may be
appropriate -- evidence concerning the quantity of drugs and cash
possessed, the method of packaging, and whether appellant himself
used drugs." Poindexter v. Commonwealth, 16 Va. App. 730,
734-35, 432 S.E.2d 527, 530 (1993).
Viewed in the light most favorable to the Commonwealth, the
evidence in this case showed that Williams possessed twenty-eight
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individual packets of heroin totalling 4.66 grams. Loftis, who
was qualified as an expert in the preparation and distribution of
drugs, testified that this quantity of heroin was inconsistent
with personal use, and that the method of packaging of the heroin
was inconsistent with personal use.
Although Williams argues that he could have been a "heavy
user" of heroin, no evidence introduced at trial indicated that
Williams was a heroin user. In fact, Williams denied knowledge
of the existence of the heroin in the car. Therefore, we cannot
conclude, based on this evidence, that the evidence was
insufficient to support the conviction for possessing the heroin
with an intent to distribute it.
For the foregoing reasons, the judgment of the trial court
is affirmed.
Affirmed.
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Benton, J., dissenting.
Based solely on the amount of cocaine and the method of
packaging, the trial judge made a finding that Williams intended
to distribute the cocaine. The principle is well established,
however, that "possession of a small quantity [of a controlled
substance] creates an inference that the drug was for the
personal use of the defendant." Dukes v. Commonwealth, 227 Va.
119, 122, 313 S.E.2d 382, 383 (1984). The evidence does not
prove beyond a reasonable doubt that the twenty-eight individual
packages of the substance was an amount inconsistent with
personal use.
Over objection, the arresting officer testified as follows:
Q. Investigator Loftis, in the hundreds of
cases that you have investigated,
distribution cases, have you ever had --
discovered an individual or encountered an
individual with this amount of drugs packaged
as it was who is simply using as opposed to
distributing?
* * * * * * *
A. You just don't see that amount for
personal use. Usually it's a very small
amount.
The officer's conclusion, based solely on his past encounters
with persons who "[u]sually [have] a very small amount," does not
prove Williams intended to distribute the substance.
Moreover, the evidence does not establish any unusual
packaging. The substance was packaged in separate bags
consistent with the manner in which one might purchase the
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substance.
The mode of packaging and the way the
packages were hidden are as consistent with
possession for personal use as they are with
intent to distribute. It is just as
plausible that the defendant purchased the
packaged substance for personal use as it is
that [the defendant] packaged the [substance]
for distribution.
Id. at 123, 313 S.E.2d at 384.
The evidence does not indicate that Williams had any unusual
denominations of money or other paraphernalia suggesting an
intent to distribute. The absence of such indications are
consistent with the hypothesis that Williams possessed the
substance for his personal use. See Wells v. Commonwealth, 2 Va.
App. 549, 553, 347 S.E.2d 139, 140 (1986).
"The Commonwealth had the burden to prove by evidence beyond
a reasonable doubt that [Williams] possessed the [substance] with
intent to distribute." Dukes, 227 Va. at 123, 313 S.E.2d at 384.
"Suspicion of [intent to distribute] is not sufficient for a
conviction." Wells, 2 Va. App. at 553, 347 S.E.2d at 141. I
would hold that the evidence was not sufficient to prove that
Williams intended to distribute the drugs.
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