Milton Norris Turner v. Commonwealth ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Benton and Overton
Argued at Norfolk, Virginia
MILTON NORRIS TURNER
MEMORANDUM OPINION * BY
v. Record No. 2907-95-2 JUDGE NELSON T. OVERTON
NOVEMBER 26, 1996
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF WESTMORELAND COUNTY
Joseph E. Spruill, Jr., Judge
George W. Townsend, III, for appellant.
Monica S. McElyea, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
Milton Norris Turner was convicted of distribution of
cocaine in violation of Code § 18.2-248. He appeals on the
grounds that the Commonwealth did not adequately prove that the
substance in question was in fact cocaine. For the reasons that
follow, we reverse the conviction.
The Commonwealth had no physical evidence of the substance
procured from Turner, and therefore was not able to conduct any
laboratory analysis. Their only evidence concerning the nature
of the substance consisted of the testimony of Cynthia Douglas.
Douglas testified that she had given some stolen beer to Turner
in exchange for crack cocaine. To establish that it was cocaine,
the Commonwealth asked Douglas how long she had used cocaine, how
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
often, the manner of use, what it looked like, and what effect it
had on her. Then she was asked her opinion on what the substance
was that she had traded for beer.
Turner argues that this is insufficient to prove that the
substance was in fact cocaine. We agree. An addict or user may
identify a substance through circumstantial evidence. This
evidence may include:
[E]vidence of the physical appearance of the
substance involved in the transaction,
evidence that the substance produced the
expected effects when sampled by someone
familiar with the illicit drug, evidence that
the substance was used in the same manner as
the illicit drug, testimony that a high price
was paid in cash for the substance, evidence
that the transactions involving the substance
were carried on with secrecy or deviousness,
and evidence that the substance was called by
the name of the illegal narcotic by the
defendant or others in his presence.
Hill v. Commonwealth, 8 Va. App. 60, 63, 379 S.E.2d 134, 136
(1989) (en banc) (quoting United States v. Dolan, 544 F.2d 1219,
1221 (4th Cir. 1976)); see also United States v. Scott, 725 F.2d
43, 45-46 (4th Cir. 1984); Anderson v. Commonwealth, 215 Va. 21,
25-26, 205 S.E.2d 393, 396 (1974). Douglas did not testify at
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all as to the characteristics of the substance in this case. She
did not describe the substance, nor whether its appearance was
consistent with that of cocaine. She did not describe whether
she used it, nor its effect, if any, and whether the effect was
consistent with that of cocaine. This testimony is insufficient
to prove that the substance was cocaine. See Hinton v.
Commonwealth, 15 Va. App. 64, 66, 421 S.E.2d 35, 37 (1992).
Furthermore, no corroborating evidence was presented to support
Douglas' opinion. See id.; see also Hill, 8 Va. App. at 65, 379
S.E.2d at 137; Myrick v. Commonwealth, 13 Va. App. 333, 340, 412
S.E.2d 176, 180 (1991).
Because the Commonwealth's evidence failed to prove a
distribution of cocaine beyond a reasonable doubt, we reverse.
Reversed and dismissed.
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