Curtis Harris v. Commonwealth

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Bray and Fitzpatrick
Argued at Alexandria, Virginia
CURTIS HARRIS
v. Record No. 0396-94-4 MEMORANDUM OPINION *
BY JUDGE JOSEPH E. BAKER
COMMONWEALTH OF VIRGINIA MAY 9, 1995
FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA
Donald M. Haddock, Judge
Richard C. Goemann, Senior Assistant Public Defender,
for appellant.
Margaret Ann B. Walker, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on brief),
for appellee.
Curtis Harris (appellant) appeals from a judgment of the
Circuit Court of Alexandria (trial court) that approved his jury
trial conviction for possession of cocaine with intent to
distribute. The sole issue presented by this appeal is whether
the evidence is sufficient to support his conviction. Finding no
error, we affirm the judgment of the trial court.
On appeal, when the issue is sufficiency, we view the
evidence in the light most favorable to the Commonwealth,
granting to it all reasonable inferences fairly deducible
therefrom. Higginbotham v. Commonwealth, 216 Va. 349, 352, 218
S.E.2d 534, 537 (1975).
Suspecting on-going illegal drug activity in the area of
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
Queen and North Fayette Streets in Alexandria, three members of
the Alexandria Police Street Crimes Unit (unit) positioned
themselves to observe and apprehend narcotics violators. Officer
William George Bunney (Bunney), a member of the unit, was
assigned the task of a "spotter." His duty was to watch the area
for narcotics violations, using either his naked eyes or
binoculars. Upon sighting a violation, the spotter, by radio,
informs other unit officers standing by in police vehicles, who
then make the arrest. The apprehending police officers are known
as "jumpers."
Bunney had spotted in various areas of Alexandria and
observed crack cocaine transactions more than 1000 times. On
September 24, 1993, at approximately 11:00 p.m., Bunney was
"spotting," using 20 x 80 binoculars. He observed appellant
walking with four other men on North Fayette Street. The area
was well-lit with street lights and lights from adjacent
buildings. The four men entered the mouth of an alley and
stopped. Through the binoculars, Bunney "could see the detail on
a person's face, objects in their hands, their actions." At that
time appellant was facing the street so that Bunney could observe
the front of his body. A man in the group held out his right
hand, which was then empty. Appellant placed a "small, white,
rock-like object" in his hand, after which the group dispersed.
Appellant began to walk down the street and was met by
another man about halfway down the block. Appellant poured
- 2 -
several "small, white, rock-like objects" into that man's empty
hand, and, in return, appellant received a folded bill of
currency.
The other man examined what appellant had placed in his hand
and then left the scene. Bunney stopped watching appellant for
two minutes or less while he tried to follow the man who had
received the objects. He then radioed other members of the unit
who were waiting in an unmarked police vehicle. Bunney requested
those officers, Robin Nichols and Christopher Whelan, to arrest
appellant.
Bunney gave Nichols the description and location of
appellant. The officers drove to the area and found appellant
who matched the description given. There was no other person in
the area matching that description. Whelan described the events
that followed:
I stopped the vehicle right next to -- He was
leaning up against a building, and I stopped
my car in the street right across from where
he was standing. I was the driver. I exited
the vehicle, began to approach. I said,
"You're under arrest," and at that time the
person came off the wall he was leaning on
and got in like a boxer's stance, and he was
kind of bouncing around from foot to foot.
He moved a few feet to like maybe the center
of the sidewalk. It's a real wide sidewalk
right there.
I stayed back, and Officer Nichols
stayed back, because he was in this stance.
I kind of moved off to his left side to get
behind him, and at one point I saw an
opportunity that I don't think he was looking
at me, and I grabbed him from behind and
tried to tackle him on the ground, and we
bumped into a car that was parked there.
I got him on the ground right in the
- 3 -
area where there's a little sapling like the
city puts up a tree, and there was a dirt
area right there. We got him down to the
ground, and we wrestled a little bit, and
then got him handcuffed. Then I conducted a
search of him.
* * * * * * *
I found one off-white, rock-like object in
his left front pants pocket, and $80 cash in
his right rear pocket.
The off-white, rock-like object was taken to the lab, tested and
proved to be rock cocaine, weighing .04 grams.
No drug paraphernalia associated with the consumption of
rock cocaine or its distribution was found on appellant.
Appellant presented no evidence on his behalf.
Contending that the Commonwealth's case is founded solely
upon circumstantial evidence because of the small quantity of
cocaine found in his possession, appellant asserts further that
the evidence is equally susceptible to possession for personal
use. He argues, therefore, that because all the circumstances
are not consistent with his guilt, the evidence is insufficient
to support the judgment approving the jury's verdict of
possession with intent to distribute. We disagree.
The judgment of the trial court that approved the jury's
verdict will not be overturned unless the record discloses that
it was plainly wrong or without evidence to support it. Traverso
v. Commonwealth, 6 Va. App. 172, 176, 366 S.E.2d 719, 721 (1988).
Here, the record shows that an experienced police officer who
had personally observed drug sales more than 1000 times testified
- 4 -
that he observed appellant twice pass white, rock-like substances
to other persons in the suspected drug transaction area. During
one of these transactions, the recipient of the rock-like
substance returned currency to appellant. When appellant was
approached by the arresting officers, he resisted arrest,
assuming a boxer's stance and shuffle. Cocaine was found in his
possession along with $80 cash, all in twenty-dollar bills.
There is no evidence that appellant used cocaine or that he
possessed it for personal use. Nor was there in his possession
any paraphernalia indicative of such use.
In Colbert v. Commonwealth, 219 Va. 1, 4, 244 S.E.2d 748,
749 (1978), the Virginia Supreme Court rejected an argument
similar to that made by appellant and said, "nothing in the
record suggests that the defendant personally used marijuana.
Second, the quantity involved is not necessarily indicative of a
lack of intent to distribute; indeed, the jury might well have
inferred that the quantity seized was what remained from a larger
supply held for distribution." From the circumstances shown
here, the jury could have inferred that the cocaine seized was a
remnant from a larger supply, although the quantity found in
appellant's possession was small.
We hold that the evidence is sufficient to cause the issue
to be presented to the jury, and that its verdict and the
judgment of the trial court is supported by the record.
Accordingly, the judgment of the trial court is affirmed.
- 5 -
Affirmed.
- 6 -