John Lewis Tinker v. Commonwealth ( 1995 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Willis and Bray
Argued at Norfolk, Virginia
JOHN LEWIS TINKER
v. Record No. 1959-94-1 MEMORANDUM OPINION * BY
JUDGE JERE M. H. WILLIS, JR.
COMMONWEALTH OF VIRGINIA OCTOBER 31, 1995
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
Morris B. Gutterman, Judge Designate
Michael F. Fasanaro, Jr. (Abrons, Fasanaro &
Sceviour, on brief), for appellant.
(James S. Gilmore, III, Attorney General;
Margaret Ann B. Walker, Assistant Attorney
General, on brief), for appellee. Appellee
submitting on brief.
John Lewis Tinker was convicted of possession of cocaine
with intent to distribute and possession of a firearm while in
possession of cocaine. On appeal, he contends the Commonwealth
failed to prove his intent to distribute. We find no error and
affirm the judgment of the trial court.
On March 22, 1994, at 9:00 p.m., Officers Tony Mathias and
Michael Felix heard gunshots. They saw a group of people on a
porch at 2528 Cary Avenue and walked up to investigate whether
the gunshots had come from there. Mathias noticed Tinker
standing behind the railing with his hands down and asked him to
show his hands. When Tinker raised his hands, he placed a loaded
handgun on the porch railing. Tinker was handcuffed and a search
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
of his person revealed $405 in cash and 9.5 grams of crack
cocaine in two plastic bags.
On appeal, we review the evidence in the light most
favorable to the Commonwealth, granting to it all
reasonable inferences fairly deducible therefrom. The
judgment of a trial court sitting without a jury is
entitled to the same weight as a jury verdict and will
not be set aside unless it appears from the evidence
that the judgment is plainly wrong or without evidence
to support it.
Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418
(1987).
"Possession with intent to distribute is a crime which
requires 'an act coupled with a specific intent.'" Stanley v.
Commonwealth, 12 Va. App. 867, 869, 407 S.E.2d 13, 15 (1991) (en
banc). "Where an offense consists of an act combined with a
particular intent, proof of the intent is essential to the
conviction." Servis v. Commonwealth, 6 Va. App. 507, 524, 371
S.E.2d 156, 165 (1988). "Where . . . 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).
Tinker concedes the evidence is sufficient to prove he
possessed cocaine. However, he contends that the evidence is
insufficient to prove his intent to distribute.
"When the proof of intent to distribute narcotics rests upon
circumstantial evidence, the quantity which the defendant
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possesses is a circumstance to be considered." Id. "Possession
of a quantity greater than that ordinarily possessed for one's
personal use may be sufficient to establish an intent to
distribute it." Josephs v. Commonwealth, 10 Va. App. 87, 102,
390 S.E.2d 491, 499 (1990) (en banc). Tinker possessed 9.5 grams
of crack cocaine. Investigator Reardon testified that, based on
his experience, this amount was inconsistent with personal use.
See Davis v. Commonwealth, 12 Va. App. 728, 731-32, 406 S.E.2d
922, 923 (1991).
Intent to distribute may be proved by the packaging of the
controlled substance, Monroe v. Commonwealth, 4 Va. App. 154,
156, 355 S.E.2d 336, 337 (1987), by accompanying possession of a
large amount of money, Servis, 6 Va. App. at 524, 371 S.E.2d at
165, by the absence of drug paraphernalia, id., and by possession
of a firearm, Burchette v. Commonwealth, 15 Va. App. 432, 437,
425 S.E.2d 81, 84 (1992). Here, the crack cocaine was packaged
in two plastic bags, Tinker possessed no drug paraphernalia, and
he possessed a large amount of cash and a loaded handgun. This,
along with the evidence that 9.5 grams of cocaine is inconsistent
with personal use, sufficiently proved that Tinker was in
possession of cocaine with the intent to distribute it.
We affirm the judgment of the trial court.
Affirmed.
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