Mark Edward Robinson v. Commonwealth ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Willis and Bray
Argued at Richmond, Virginia
MARK EDWARD ROBINSON
MEMORANDUM OPINION * BY
v. Record No. 0572-95-3 JUDGE JAMES W. BENTON, JR.
FEBRUARY 20, 1996
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG
Mosby G. Perrow, III, Judge
Elizabeth P. Murtagh, Assistant Public
Defender (Office of the Public Defender, on
brief), for appellant.
Brian Wainger, Assistant Attorney General
(James S. Gilmore, III, Attorney General;
Monica S. McElyea, Assistant Attorney
General, on brief), for appellee.
Mark Edward Robinson was convicted of possessing cocaine
with the intent to distribute in violation of Code § 18.2-248.
He contends that the evidence was insufficient to prove beyond a
reasonable doubt that he intended to distribute the cocaine. We
agree and reverse the conviction.
The evidence proved that Investigator P. K. Morris of the
Lynchburg Police Department received information that a man, who
was standing in front of a building on Church Street, possessed
cocaine. The report stated that the man was wearing a black
t-shirt with "Jordan" written across it, blue jeans, and white
tennis shoes. The investigator and three other officers drove to
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
the area and observed Robinson fitting that description. As the
officers watched, Robinson walked in and out of a building three
times. After the officers drove towards Robinson and exited
their vehicle, Robinson ran and threw a plastic bag to the
ground. The investigator followed Robinson and arrested him. In
a search of Robinson, the investigator recovered a razor blade
from Robinson's wallet. The white residue on the razor blade was
not identified.
One of the officers recovered the plastic bag and saw that
it contained over forty white chunks. A laboratory analysis
revealed that the bag contained 8.57 grams of cocaine.
The trial judge overruled Robinson's motion to strike the
evidence. The trial judge ruled that the evidence was sufficient
to convict Robinson of possession of cocaine with intent to
distribute. Robinson appeals the finding of sufficient evidence
to prove intent.
Where, as in this case, "evidence of an intent to distribute
is entirely circumstantial, 'all necessary circumstances proved
must be consistent with guilt and inconsistent with innocence and
exclude every reasonable hypothesis of innocence.'" Morton v.
Commonwealth, 13 Va. App. 6, 9, 408 S.E.2d 583, 584 (1991)
(citation omitted).
When the proof of intent to distribute
narcotics rests upon circumstantial evidence,
the quantity which the defendant possesses is
a circumstance to be considered. Indeed,
quantity, alone, may be sufficient to
establish such intent if it is greater than
the supply ordinarily possessed for one's
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personal use. However, possession of a small
quantity 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) (citation omitted). As in all criminal prosecutions, the
burden is upon the Commonwealth to prove beyond a reasonable
doubt the elements of the offense. In re Winship, 397 U.S. 358,
364 (1970); Morton, 13 Va. App. at 11, 408 S.E.2d at 586.
In the present case, the evidence proved only the quantity
of cocaine. No evidence established that the quantity was not
consistent with personal use. No other evidence tended to prove
intent to distribute.
The Commonwealth argues that the trial judge could have
inferred intent to distribute from the proof that Robinson went
into the building several times. We disagree. That conduct,
even when combined with Robinson's possession of cocaine,
provides no foundation from which the trial judge could have
inferred beyond a reasonable doubt that Robinson was entering the
building for the purpose of distributing cocaine. Accordingly,
we reverse the conviction.
Reversed and remanded.
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