Present: Hassell, C.J., Keenan, Koontz, Kinser, Lemons, and
Goodwyn, JJ., and Russell, S.J.
RICKY C. WILLIAMS OPINION BY
SENIOR JUSTICE CHARLES S. RUSSELL
v. Record No. 081577 June 4, 2009
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
This appeal questions the sufficiency of the evidence to
support a conviction of possession of methadone with intent to
distribute.
Facts and Proceedings
Applying familiar principles of appellate review, we will
state the facts in the light most favorable to the
Commonwealth, the prevailing party at trial. On August 17,
2005, Detectives McAndrew and Johnakin, of the Portsmouth
Police Department, initiated a traffic stop of a station wagon
because one of its brake lights was inoperative. The driver
was a man named Clark. Seated beside him in the passenger seat
was Ricky C. Williams. The detectives left their unmarked
cruiser and approached the station wagon, McAndrew to the
driver’s side and Johnakin to the passenger side. Detective
Johnakin saw Williams look over his shoulder at the
approaching Detective McAndrew and throw three plastic bags
over his left shoulder with his right hand. They landed in
the middle of the back seat. Detective Johnakin looked
through the rear window and saw the plastic bags, one of which
appeared to him to contain heroin capsules. Detective
Johnakin opened the passenger door and placed Williams under
arrest. When asked where he worked, Williams stated that he
was unemployed. Detective McAndrew removed the three plastic
bags from the back seat and identified their contents as what
appeared to be heroin, cocaine and methadone, respectively.
Williams was indicted for several drug-related offenses
and was convicted at a bench trial of (1) possession of heroin
with intent to distribute (third offense), (2) possession of
cocaine with intent to distribute (third offense), and (3)
possession of methadone with intent to distribute (third
offense). At trial, the three plastic bags recovered from the
back seat of the station wagon were identified as one plastic
bag corner containing 38 capsules of heroin, one plastic bag
corner containing 1.24 grams of powder cocaine, and one
plastic bag corner containing ten white marked tablets. One
of the white tablets was tested and found to contain
methadone.
Detective R. M. Holley of the Portsmouth Police
Department qualified, by stipulation, as an expert witness in
the packaging, sale, use and distribution of narcotics in the
City of Portsmouth. He testified that a “heavy user” of
heroin would use five to seven capsules per day, that 38
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capsules represented a five to seven-day supply for a heavy
user, and that it was "very, very rare" that such a user would
carry a quantity of capsules amounting to a five to seven-day
supply of the drug on his person.
The “street price” of the capsules was $10 each, in
Detective Holley’s opinion, so the heroin represented a value
of $380 to a user. The “street value” of the cocaine was
approximately $100 per gram, he testified, so the cocaine
powder was worth about $120, while the methadone tablets sold
for five to ten dollars each, adding $50 to $100 to the total
value of the items seized in the station wagon. Detective
Holley testified that in his experience, no user had ever been
found in possession of all three of these drugs at any one
time, and that the evidence was inconsistent with personal
use.
On cross-examination, Detective Holley testified that the
quantity of cocaine seized, taken alone, would be “borderline
close” to being consistent with personal use, but in
combination with the other drugs it was not. He said, “I
don’t ever remember seeing three different drugs [carried] by
a user together.” He added, without objection, that it was
doubtful that a drug user who was unemployed would be carrying
drugs of so much monetary value with him.
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Detective Holley also was of the opinion that the mere
combination of heroin and methadone was unlikely for a user,
because both have the same effect, although the effect of
methadone lasts for a shorter time. Methadone, he said, is
available by prescription, but in that case, the law requires
that it be kept in a prescription bottle; methadone is also
dispensed by drug treatment programs in Portsmouth, but is
only dispensed one tablet at a time. Detective Holley also
thought the packaging of the methadone was inconsistent with
personal use, stating “[t]o put them in a plastic bag corner
is very unusual for a user of methadone.”
At the conclusion of the trial, Williams made no argument
concerning the heroin charge and argued only the failure of
the Commonwealth to prove intent to distribute cocaine and
methadone, asking the court to find him guilty only of simple
possession of those two substances.
Williams appealed his convictions to the Court of
Appeals. That court denied his petition as to the heroin
conviction but granted his petition as to possession of
cocaine with intent to distribute and possession of methadone
with intent to distribute. A panel of the Court of Appeals
heard those cases and, by opinion and order entered June 24,
2008, affirmed the judgment of the trial court. We awarded
Williams an appeal limited to a single assignment of error:
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“The Court of Appeals erred in affirming the trial court’s
ruling that the defendant possessed methadone with the intent
to distribute.”
Analysis
The judgment of the trial court, sitting without a jury,
is entitled to the same weight as a jury verdict and will not
be disturbed on appeal unless "plainly wrong or without
evidence to support it." Code § 8.01-680; Britt v.
Commonwealth, 276 Va. 569, 573-74, 667 S.E.2d 763, 765 (2008).
An appellate court does not “ask itself whether it
believes that the evidence at the trial established guilt
beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S.
307, 318-19 (1979) (citation omitted). Rather, the relevant
question is whether “any rational trier of fact could have
found the essential elements of the crime beyond a reasonable
doubt.” Id. at 319.
Consistent with his position at trial, Williams does not
dispute that he was in possession of the drugs that were found
in the station wagon. 1 His appeal rests entirely on his
1
Williams took the stand at trial but was not asked about
whether he was in possession of the drugs and said nothing on
that subject. On brief, he argues that the vehicle had
another occupant who might have possessed them. Because he
asked the trial court to find him guilty of simple possession,
we will not consider that argument.
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contention that the trial court’s finding of intent to
distribute methadone was unsupported by the evidence.
Absent a direct admission by the defendant, intent to
distribute must necessarily be proved by circumstantial
evidence. See Hunter v. Commonwealth, 213 Va. 569, 570, 193
S.E.2d 779, 780 (1973). The circumstantial evidence in the
present case was that Williams possessed three disparate
drugs, a factor leading to the conclusion that he was engaging
in the business of drug distribution. The quantity of heroin
alone was inconsistent with personal use, as was the packaging
of the methadone. In McCain v. Commonwealth, 261 Va. 483,
493, 545 S.E.2d 541, 547 (2001), we held that the packaging of
drugs was an appropriate factor to consider as evidence of
intent to distribute. The aggregate value of the drugs in
Williams' possession was such that an unemployed person would
be unlikely to be able to afford them if he were merely a
user. 2 We conclude that the evidence was sufficient to support
the trial court’s finding.
Williams’ principal contention on appeal is that because
only one methadone tablet was tested, there is no evidence to
2
When Williams testified as a witness, he was not asked
whether he was a user of drugs and said nothing on that
subject. On appeal, he argues that the evidence was
consistent with personal use. There was no evidence that
Williams was a user of drugs.
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support the conclusion that he was in possession of ten
methadone tablets. Therefore, he argues, a reasonable
hypothesis of his innocence of intent to distribute that drug
was not excluded by the Commonwealth’s evidence. 3
We do not reach Williams' argument concerning the number
of tablets tested because of our conclusion that the totality
of the evidence is sufficient to support the trial court’s
finding that Williams had the intent to distribute all the
drugs in his possession. That intent necessarily included the
single tablet that was tested and found to contain methadone.
In making its finding, the trial court was entitled to
consider all the evidence and was not limited to relying on
the number of methadone tablets in Williams’ possession.
Conclusion
We find no error in the Court of Appeals’ determination
that the evidence at trial was sufficient to support Williams’
conviction of possession of methadone with intent to
3
The certificate of analysis in evidence described the
tablets as “ten (10) white marked tablets.” It further
stated: “Visual examination determined that the physical
characteristics are consistent with a pharmaceutical
preparation containing Methadone.” Introduced in evidence,
the tablets were examined by the trial judge who stated that
they appeared to be identical and appeared to be
"prescription-type tablets" with a line across them to
facilitate breaking them in half.
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distribute. Accordingly, we will affirm the judgment of the
Court of Appeals.
Affirmed.
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