Lane v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges Frank, Humphreys and Haley
Argued at Salem, Virginia

JIMMY ROGER LANE
OPINION BY
v. Record No. 1211-07-3 JUDGE ROBERT P. FRANK
APRIL 15, 2008
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF BUCHANAN COUNTY
Keary R. Williams, Judge

David L. Epling for appellant.

Joshua M. Didlake, Assistant Attorney General (Robert F.
McDonnell, Attorney General, on brief), for appellee.

Following the entry of conditional guilty pleas, the trial court convicted Jimmy Roger

Lane, appellant, of three counts of possession with the intent to distribute a Schedule II

controlled substance (one count for liquid oxycodone, one count for Endocet tablets, which

contained oxycodone, and one count for oxycodone tablets) and one count of possession with the

intent to distribute a Schedule III controlled substance, hydrocodone. On appeal, appellant

contends the trial erred in (1) denying his motion to suppress, as the search warrant affidavit did

not sufficiently identify the reliability of the informant; and (2) denying his motion to dismiss or

consolidate the indictments for three counts of possession with the intent to distribute

oxycodone, arguing on double jeopardy grounds that he was convicted multiple times for a
single offense. 1 For the reasons stated, we affirm in part and reverse in part, and remand this

case to the trial court. 2

BACKGROUND

On June 3, 2005, narcotics investigator Raymond Webb with the Buchanan County

Sheriff’s Office filed an affidavit for a search warrant to search appellant’s person and home for

evidence of drug possession and/or distribution. On the form affidavit provided by the sheriff’s

office, Webb averred that, “within the past 72 hours, a reliable informant has seen a large

quantity of narcotics in the residence and on the person of [appellant].” In the space provided to

set forth the facts to determine the informant’s credibility or reliability of the information, Webb

recited that, “the reliable informant has given information in the past that has led to the seizure of

illegal narcotics.”

The magistrate issued a search warrant for appellant’s residence based on Webb’s

affidavit. Webb then proceeded to appellant’s residence and executed the search warrant.

When Webb arrived at appellant’s residence, he found appellant standing “on the front

porch in the garage area.” Webb informed appellant that he was there to serve a search warrant,

and appellant gave Webb consent to conduct a pat-down search. During that search, Webb

recovered “several different items in plastic baggies in [appellant’s] pockets.”

In appellant’s right pocket, Webb found (1) a plastic bag containing sixty-two “round,

green coated tablets,” marked “OC” and “80,” later determined to be oxycodone; (2) a plastic

bag containing $638 of U.S. currency; (3) a plastic bag containing $3,490 in U.S. currency; and

1
The only issue on appeal that relates to the conviction for hydrocodone is appellant’s
challenge to the search warrant; appellant’s motion for consolidation or dismissal applied only to
the three convictions involving oxycodone.
2
Appellant also pled guilty to four counts of distribution. However, appellant does not
challenge those convictions on appeal.

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(4) a plastic bag containing seventeen white, oblong tablets, later determined to be hydrocodone.

In appellant’s left pant pocket, Webb found: (1) $181 in U.S. currency; and (2) a plastic bag

“containing twenty-eight white round tablets,” later determined to be Endocet, a combination of

oxycodone and acetaminophen that is a generic form of the drug Percoset.

During the search of appellant’s residence, officers recovered a “plastic bottle with a

dropper lid” containing 7.8 milliliters of liquid oxycodone in appellant’s garage. The attached

garage was approximately 15-20 feet from appellant’s front porch.

At the hearing on the motion to suppress, Webb testified that “[w]e had made several

buys from this residence in the past, plus the informant had been at this residence that day [when

the search warrant was served] and observed a large quantity of narcotics.” The informant

personally purchased narcotics from appellant at that same residence on four different occasions.

Appellant moved to suppress all of the evidence recovered from his person and found

inside of his home, arguing that the affidavit offered in support of the search warrant did not

establish the reliability of the informant to a sufficient degree. Thus, appellant argued that the

search warrant was issued without probable cause. Appellant also moved to consolidate or

dismiss two of the three counts of possession with the intent to distribute that involved the liquid

oxycodone, the oxycodone tablets, and the Endocet tablets. Appellant contended that double

jeopardy prevented his prosecution on three separate charges for separate quantities of the same

prohibited substance found at the same time.

In denying appellant’s motion to suppress, the trial court determined the affidavit was

sufficient to show probable cause, as Webb knew at the time he made the affidavit and executed

the search warrant that the informant had purchased drugs from appellant four separate times.

Regarding the double jeopardy argument, the trial court found that, because the Endocet tablets

and the oxycodone tablets had different pharmaceutical compositions and were found in two

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different pockets of appellant’s pants, those two charges were distinguishable. The trial court

distinguished the liquid oxycodone based on the fact that it was found in a “separate location.”

This appeal follows.

ANALYSIS

Motion to Suppress

“On appeal from a denial of a suppression motion, we must review the evidence in the

light most favorable to the Commonwealth, giving it the benefit of any reasonable inferences.”

Slayton v. Commonwealth, 41 Va. App. 101, 103, 582 S.E.2d 448, 449 (2003).

An appellant’s claim that evidence was seized in violation of the
Fourth Amendment “presents a mixed question of law and fact that
we review de novo on appeal. In making such a determination, we
give deference to the factual findings of the trial court and
independently determine whether the manner in which the
evidence was obtained [violated] the Fourth Amendment.”

Wilson v. Commonwealth, 45 Va. App. 193, 202-03, 609 S.E.2d 612, 616 (2005) (alteration in

original) (quoting Murphy v. Commonwealth, 264 Va. 568, 573, 570 S.E.2d 836, 838 (2002)).

On appeal, “we defer to the trial court’s findings of ‘historical fact’ and give ‘due weight to the

inferences drawn from those facts by resident judges and local law enforcement officers.’”

Barkley v. Commonwealth, 39 Va. App. 682, 690, 576 S.E.2d 234, 238 (2003) (quoting Davis v.

Commonwealth, 37 Va. App. 421, 429, 559 S.E.2d 374, 378 (2002)).

Appellant contends that the affidavit, which gave rise to the search warrant, was

insufficient to show the reliability of the informant. While not conceding the lack of probable

cause to issue the search warrant, the Commonwealth, in its brief, argues this Court need not

address probable cause since the “good faith exception” applies. 3

3
The trial court, in denying the motion to suppress, found the affidavit was sufficient to
establish probable cause for the issuance of the search warrant.
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 Assuming, without deciding, that “the warrant was not issued upon probable cause,

evidence seized pursuant to the warrant is nevertheless admissible if the officer executing the

warrant reasonably believed that the warrant was valid.” Lanier v. Commonwealth, 10 Va. App.

541, 547, 394 S.E.2d 495, 499 (1990) (citing United States v. Leon, 468 U.S. 897, 918-21

(1984)) (other citations omitted). Thus, we will address only whether the good faith exception

applies.

The United States Supreme Court has held that “suppression of evidence obtained

pursuant to a warrant should be ordered only on a case-by-case basis and only in those unusual

cases in which exclusion will further the purposes of the exclusionary rule.” Leon, 468 U.S. at

918. “[T]he exclusionary rule is designed to deter police misconduct rather than to punish the

errors of judges and magistrates.” Id. at 916. “In the ordinary case, an officer cannot be

expected to question the magistrate’s probable-cause determination or his judgment that the form

of the warrant is technically sufficient.” Id. at 921.

Under the good faith exception, “[w]here a police officer has an objectively reasonable

belief that the issuing magistrate had probable cause to issue the search warrant, the officer may

rely upon the magistrate’s probable cause determination and the evidence will not be excluded.”

Colaw v. Commonwealth, 32 Va. App. 806, 810, 531 S.E.2d 31, 33 (2000).

There are four circumstances, however, where an officer cannot
have an objectively reasonable belief that probable cause exists for
the search and suppression is an appropriate remedy: “(1) Where
the magistrate was misled by information in the affidavit which the
affiant knew was false or should have known was false, (2) the
issuing magistrate totally abandoned his judicial role, (3) the
warrant was based on an affidavit ‘so lacking in indicia of probable
cause’ as to render official belief in its existence unreasonable or
(4) where the warrant was so facially deficient that an executing
officer could not reasonably have assumed it was valid.”

However, because we find that the good faith exception applies and the Commonwealth
did not brief or argue that probable cause was present, we do not reach the question of whether
the affidavit was based on probable cause.
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Cunningham v. Commonwealth, 49 Va. App. 605, 618-19, 643 S.E.2d 514, 521 (2007) (quoting

Colaw, 32 Va. App. at 811, 531 S.E.2d at 33).

Appellant contends that the third exception to the good faith rule applies, arguing that the

underlying affidavit was “bare bones” and so lacking in indicia of probable cause that a

reasonable police officer would not have believed that the warrant was valid. Specifically,

appellant maintains that the information in the affidavit was not sufficient to establish the

informant’s reliability. We disagree.

When a confidential informant provides the basis for probable cause, there are two

considerations that are particularly relevant to our analysis: (1) the veracity or reliability of the

informant and (2) the informant’s basis of knowledge. Illinois v. Gates, 462 U.S. 213, 230

(1983). Appellant does not challenge the informant’s “basis of knowledge,” but only the

informant’s veracity and reliability.

We have held that “as long as there is some indicia of probable cause in the underlying

affidavit, we will apply the good faith exception [provided that] a reasonable police officer, after

assessing the facts set forth in the affidavit, could have believed that the warrant was valid.”

Anzualda v. Commonwealth, 44 Va. App. 764, 781, 607 S.E.2d 749, 757 (2005) (en banc)

(emphasis in original).

Thus, the pivotal question before us is whether a reasonable police officer, based on the

facts set forth in the affidavit as to the informant’s reliability, could have believed the warrant

was valid.

Our decision in Tart v. Commonwealth, 17 Va. App. 384, 437 S.E.2d 219 (1993), is

instructive. In Tart, police officers obtained a search warrant for a motel room where the

defendant was staying. Id. at 386, 437 S.E.2d at 220. The search warrant was based on an

affidavit containing information obtained from a confidential informant. Id. The affidavit

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recited the following facts as to the informant’s reliability: (1) that the informant was presently

cooperating with police; (2) that the informant had personally observed and had contact with, in

the last 72 hours, two men selling drugs in two particular motel rooms; and (3) that the informant

was able to provide a detailed description of the two men. Id. at 386-87, 437 S.E.2d at 220-21.

Nothing in the affidavit indicated the informant’s prior history of reliability, or that the informant

had given any information in the past that had led to an arrest or a conviction. Nevertheless, this

Court held that the “good faith exception” applied, as

[a]n objectively reasonable belief that probable cause existed was
provided by [the officer’s] sworn statement that a reliable and
confidential informant visited the motel room within the past
seventy two hours and observed a quantity of “crack” cocaine “cut
up into small rocks[,”] that the confidential informant had contact
with the occupants of Room 4 and Room 30 of the motel; and that
these occupants “were associated in regard to the illegal possession
of the cocaine.”

Id. at 390, 437 S.E.2d at 223.

We conclude the facts in the subject affidavit were not “bare bones,” but established the

informant’s reliability sufficiently enough to provide some indicia of probable cause. The

affidavit averred that, “within the past 72 hours, a reliable informant has seen a large quantity of

narcotics in the residence and on the person of Jimmy Lane” and further that this particular

informant had “given information in the past that has led to the seizure of illegal narcotics.”

Here, as in Tart, it is apparent that the informant had personal contact with appellant, was present

in appellant’s home no more than 72 hours before the search warrant was issued, and had

personally observed narcotics on appellant and in appellant’s home at that time. Instead of only

providing a description of the suspects, the informant here was able to provide appellant’s name.

Additionally, unlike the affidavit in Tart, the affidavit in the instant case recited that the

informant had a prior history of reliability, namely that he had provided information in the past

that had led to the seizure of illegal narcotics. Manley v. Commonwealth, 211 Va. 146, 150, 176
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S.E.2d 309, 313 (1970) (“The most commonly accepted and approved allegation to substantiate

reliability is that the informer is a person of known and proven reliability and has furnished

information to law enforcement officers which has been instrumental in procuring convictions.”).

While the affidavit does not indicate that the informant’s past information had led to a specified

number of arrests or convictions, the mere fact that the informant’s past information has led to

the seizure of illegal narcotics indicates that the past information has proven to be correct. Corey

v. Commonwealth, 8 Va. App. 281, 288, 381 S.E.2d 19, 23 (1989) (“The reliability of any

informant . . . can be demonstrated if the affidavit states that the informant has previously given

information which has proven correct.”).

Given that the informant has provided past information that has proven to be correct, that

the informant was personally on the property that was the subject of the warrant within 72 hours,

and that the informant personally observed narcotics at that property and on appellant’s person,

we conclude that the informant’s reliability was sufficiently established to provide a reasonable

officer with some indicia of probable cause to support a belief that the warrant was valid. Thus,

we find that the affidavit was not “so lacking in indicia of probable cause” as to render official

belief in its existence unreasonable. Accordingly, we affirm the trial court’s denial of appellant’s

motion to suppress.

Motion to Dismiss or Consolidate Indictments

Appellant next contends that, regarding his convictions for possession with the intent to

distribute Endocet, oxycodone tablets, and liquid oxycodone, the trial court erred in denying his

motion to dismiss two of the indictments, or, in the alternative, to consolidate the three

indictments into one count. Appellant argues that, as the three indictments involve the same

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prohibited substance found at the same time, his conviction and punishment for three separate

offenses violates the Double Jeopardy Clause of the Fifth Amendment. 4

The Double Jeopardy Clause of the Fifth Amendment “‘protects against a second

prosecution for the same offense after acquittal. It protects against a second prosecution for the

same offense after conviction. And it protects against multiple punishments for the same

offense.’” Brown v. Ohio, 432 U.S. 161, 165 (1977) (quoting North Carolina v. Pearce, 395 U.S.

711, 717 (1969) (footnotes omitted)). “Where consecutive sentences are imposed at a single

criminal trial, the role of the constitutional guarantee is limited to assuring that the court does not

exceed its legislative authorization by imposing multiple punishments for the same offense.” Id.

“‘The issue of multiple punishments actually arises in two contexts. First, two or more

statutes . . . proscribe . . . particular . . . conduct as criminal offenses. Second, . . . conduct may

constitute more than one violation of a single criminal proscription.’” Shears v. Commonwealth,

23 Va. App. 394, 400, 477 S.E.2d 309, 312 (1996) (quoting Jordan v. Commonwealth, 2

Va. App. 590, 593, 347 S.E.2d 152, 154 (1986)). Here, appellant asserts that he was

4
In its argument on brief, the Commonwealth maintains that appellant does not challenge
the indictment charging possession with the intent to distribute Endocet. Thus, the
Commonwealth addressed its argument only to the differences between the charges relating to
the oxycodone tablets and the liquid oxycodone. In support of this proposition, the
Commonwealth cites to the conclusion in appellant’s brief where he states,

In cases numbers 661-05, 662-05, and 663-05, the last two
indictments violate the principals [sic] of multiple punishment
contrary to the Double Jeopardy Clause of the United States
Constitution. [Appellant] respectfully request [sic] that these cases
be remanded to the Circuit Court of Buchanan County with orders
to dismiss the last two indictments.

It is clear from reading this statement that appellant meant only to concede that one
conviction for possession with the intent to distribute oxycodone would be proper; he maintains
throughout his brief that two of those convictions are in violation of the Double Jeopardy Clause
because the three charges should have been merged into one. The Commonwealth’s
interpretation is contrary to a plain reading of appellant’s brief, and, thus, we will not address
this argument on appeal.
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unconstitutionally punished by convictions on three indictments arising from a single criminal

enterprise, the possession of oxycodone with the intent to distribute in violation of Code

§ 18.2-248. 5

“When considering multiple punishments for a single transaction, the controlling factor is

legislative intent.” Kelsoe v. Commonwealth, 226 Va. 197, 199, 308 S.E.2d 104, 104 (1983).

The legislature “may determine the appropriate ‘unit of prosecution’ and set the penalty for

separate violations.” Jordan, 2 Va. App. at 594, 347 S.E.2d at 154. Therefore, although multiple

offenses may be the “same,” an accused may be subjected to legislatively “authorized cumulative

punishments.” Id. “It is judicial punishment in excess of legislative intent which offends the

double jeopardy clause.” Shears, 23 Va. App. at 401, 477 S.E.2d at 312.

In enacting Code § 18.2-248, the General Assembly
declared it “unlawful for any person to . . . sell, . . . or possess with
intent to . . . sell . . . a controlled substance.” Code § 18.2-248(A).
Code § 18.2-248(C) prescribes the punishment for “any person
who violates this section with respect to a controlled substance
classified in Schedule I or II.” The gravamen of the offense is
clearly possession of the specified drug with the requisite intent.
Thus, each distinguishable incident of the offending conduct
constitutes a “unit of prosecution” for violation of the statute.

Id. (footnote omitted). 6

“Courts of other jurisdictions [] have concluded it may be constitutionally permissible for

a defendant to be convicted of more than one drug offense based upon the discovery of separate

caches of drugs the defendant possessed with distinct purposes.” Peake v. Commonwealth, 46

Va. App. 35, 41, 614 S.E.2d 672, 676 (2005).

“Generally, courts which have considered the issue [of multiple
prosecutions under controlled substance statutes] have determined

5
Because appellant was tried simultaneously on all three indictments, multiple
prosecution for a single act or offense is not in issue. Clagett v. Commonwealth, 252 Va. 79, 95,
472 S.E.2d 263, 272 (1996).
6
Oxycodone is a Schedule II controlled substance. Code § 54.1-3448.
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 that separate convictions for possession of the same controlled
substance [with the intent to distribute] will not violate the Double
Jeopardy Clause if the possessions are sufficiently differentiated by
time, location, or intended purpose.”

Id. (quoting Commonwealth v. Rabb, 725 N.E.2d 1036, 1043 (Mass. 2000)). “The

considerations of time, location, and intended purpose ‘are meant to be disjunctive, with no one

determinative factor.’” Id. (quoting Rabb, 725 N.E.2d at 1043). “‘[A] determination of the

existence of separate stashes is not constrained by any particular measure of spatial or temporal

distance. The proper focus of a “separate stash” inquiry is not on logistics but on demonstrated

intent.’” Id. (quoting United States v. Smith, 50 M.J. 813, 815 (A.F. Ct. Crim. App. 1999)).

The Commonwealth argues that the three amounts of oxycodone recovered from

appellant are separate and distinct offenses. The Commonwealth maintains that the drugs were

found in different locations, as the Endocet and oxycodone tablets were found in two separate

pockets of appellant’s pants and the liquid oxycodone was found in the garage. The

Commonwealth contends that the drugs can also be differentiated based on their different

packaging and storage, as the Endocet and oxycodone tablets were found in separate plastic bags

and the liquid oxycodone was found in a vial. The Commonwealth also points to the different

forms and appearances of the drugs, as the Endocet tablets were round and white, the oxycodone

tablets were round and green, and the oxycodone found in the garage was in liquid form.

Finally, the Commonwealth contends that the different pharmaceutical compositions of the drugs

support separate convictions, as the Endocet tablets contained both oxycodone and

acetaminophen, while the liquid oxycodone and oxycodone tablets were “pure oxycodone.”

The Commonwealth relies on the reasoning in this Court’s decisions in Shears, 23

Va. App. 394, 477 S.E.2d 309, and Peake, 46 Va. App. 35, 614 S.E.2d 672, to support its

argument. However, we find both cases factually distinguishable from the instant case.

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 In Shears, the defendant was arrested in an informant’s home while attempting to deliver

drugs to the informant. Shears, 23 Va. App. at 397, 477 S.E.2d at 310. Officers recovered two

plastic bags of cocaine from the defendant in the informant’s home, one found on the floor near

the defendant’s foot and one found in the defendant’s pocket. Id. Based on the defendant’s

statements to police after his arrest that he had been selling cocaine for “a couple of weeks,”

officers obtained a search warrant for the defendant’s home, where they discovered “numerous”

plastic bags of cocaine and twenty-eight individual bags of marijuana. Id. at 397-98, 477 S.E.2d

at 310-11. The defendant argued that the cocaine recovered from his person in the informant’s

home and the cocaine recovered from his home should have been combined into one offense. Id.

at 400, 477 S.E.2d at 311-12. This Court held:

Here, defendant does not dispute on appeal that he actually
possessed cocaine at the informant’s trailer for purposes of
immediate distribution to a prospective buyer. Manifestly, such
conduct constitutes a violation of Code § 18.2-248 separate from
the constructive possession of like drugs elsewhere, despite a
similar criminal purpose. Hence, defendant committed two distinct
violations of a single criminal proscription and was appropriately
subject to attendant cumulative punishments.

Id. at 401, 477 S.E.2d at 312.

In Peake, officers executing a search warrant at the defendant’s residence encountered the

defendant as he was exiting his garage. Peake, 46 Va. App. at 38, 614 S.E.2d at 674. During a

frisk of the defendant for weapons, an officer recovered a smoking device and .11 ounce of

marijuana from appellant’s pocket. Id. While searching the home, officers discovered a lockbox

belonging to the defendant that contained 2.17 ounces of marijuana and a set of digital scales.

Id. That marijuana was packaged into eleven separate plastic bags, and the defendant later

admitted to the officers that he sold marijuana intermittently in order to obtain marijuana for his

personal use for free. Id. The defendant was convicted of misdemeanor possession of marijuana

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based on the amount found in his pocket, and was convicted in a separate trial of possession of

marijuana with the intent to distribute based on the marijuana recovered from his lockbox. Id.

The defendant in Peake argued that his conviction for possession with the intent to

distribute marijuana violated the Double Jeopardy Clause. This Court ruled that the evidence

supporting the two separate convictions demonstrated that the defendant possessed each stash of

drugs with a separate intent.

Considering appellant’s implicit admission that he used marijuana
in conjunction with his simultaneous possession of a smoking
device and a relatively small amount of marijuana, the evidence
proved appellant’s possession of marijuana in his pocket was for
personal use. By contrast, the evidence proved appellant’s
possession of the larger cache of marijuana in the red lockbox was
for distribution. The marijuana was discovered divided into
separate bags, with a digital scale, and near a quantity of cash.
Significantly, appellant told the police he sold marijuana from the
lockbox so he could get his own marijuana for free.

Id. at 41-42, 614 S.E.2d at 676 (footnote omitted) (citation omitted).

In both Shears and Peake, there was evidence that the defendant had demonstrated

separate intents with regard to the different stashes of drugs that were recovered. In Peake, one

charge was based on the defendant’s personal use of marijuana and one charge was based on the

defendant’s distribution of marijuana, a distinction supported by the defendant’s own statements.

In Shears, the defendant intended to immediately distribute the cocaine found on his person to a

specific buyer, but left the remainder of the cocaine in his residence for future sales. Again, the

defendant’s own statements supported the conclusion that there were two separate intents; the

defendant in Shears told officers that he had been selling cocaine for a couple of weeks,

indicating that the stash reserved in his home was intended for a continuing enterprise in the

distribution of narcotics.

Conversely, such evidence is manifestly absent in the instant case. Here, the

Commonwealth had to prove that the evidence supported appellant’s conviction under three
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separate indictments involving the same prohibited substance obtained at the same time from

appellant and his home. However, the Commonwealth presented no evidence as to any different

uses of different forms of oxycodone. There was no evidence that the different forms of

oxycodone appealed to different drug users or customers of appellant. The Commonwealth

failed to demonstrate that appellant had different intents with regards to the different forms of

oxycodone, for instance, that one was for personal use or was intended specifically for a

particular buyer.

The Commonwealth relies on the different locations where the oxycodone was recovered,

the different packaging of the oxycodone, the different appearances of the oxycodone, and the

different pharmaceutical compositions of the oxycodone to support the three separate charges.

However, these considerations focus on making distinctions in spatial distance and physical

form. This approach is inconsistent with our analysis in Peake, which clearly placed the

emphasis on appellant’s “demonstrated intent” with respect to each alleged “separate stash.”

Peake, 46 Va. App. at 41, 614 S.E.2d at 676.

The physical separation of the narcotics at issue, which were found in two pockets of

appellant’s pants and in a part of appellant’s house 15-20 feet from where he was standing, is not

indicative of any difference in appellant’s demonstrated intent towards the drugs. Nor does the

fact that the oxycodone was stored in different packages shed any light on appellant’s

demonstrated intent; there is no evidence in the instant case that indicates that the separate

packages were in any way significant in terms of demonstrating discrete intents to distribute

those drugs. 7 The different forms and appearances of the oxycodone also fail to provide support

7
Our case law focuses on the packaging of narcotics in terms of demonstrating an intent
to distribute. See, e.g., Peake, 46 Va. App. at 42, 614 S.E.2d at 676 (considering the fact that the
marijuana was divided into separate bags as one of several factors indicating an intent to
distribute that marijuana as opposed to possessing it for personal use). However, we cannot find
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for the Commonwealth’s argument, as there was no evidence presented at the hearing that these

different forms and physical appearances had any relevance to demonstrating separate intents. 8

With no evidence of how these distinctions relate to demonstrating appellant’s distinct

intent towards each drug, we cannot find, under the facts of this case, that appellant had three

separate intents to distribute oxycodone that would support three separate convictions. Without

such evidence, we could only speculate as to whether location, packaging or different physical

appearances would prove three separate intents in this case. While these factors certainly have a

role in demonstrating intent, there is simply no evidence from which a reasonable inference can

be drawn that supports separate intents with respect to the amounts of oxycodone recovered in

this case. 9

We find that the Commonwealth has failed to provide evidence that appellant possessed

different demonstrated intents sufficient to support three separate charges of possession with the

intent to distribute oxycodone. Thus, we hold that the trial court erred in denying appellant’s

motion to consolidate or dismiss the indictments.

CONCLUSION

We find that the trial court did not err in denying appellant’s motion to suppress the

narcotics recovered from the execution of the search warrant, as the officer’s actions fall under

precedent that stands for the proposition that the fact that drugs are stored in separate packages,
without more, can be used to support multiple charges for possession with the intent to distribute.
8
The Commonwealth’s contention that the Endocet can be differentiated based on its
different pharmaceutical composition is unavailing. Endocet is a combination of oxycodone and
acetaminophen, an over-the-counter, legal medication. Possession of Endocet tablets is
prohibited only because it contains oxycodone.
9
We are not suggesting that the same drugs, found under circumstances identical to this
case, cannot support separate units of prosecution. We narrowly hold that, without testimony
demonstrating how these circumstances relate to proving separate intents to distribute, separate
units of prosecution cannot stand in this case.

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the good faith exception and the affidavit was sufficient to establish the reliability of the

information received from the informant. We find that the trial court erred in denying

appellant’s motion to consolidate or dismiss, as appellant’s possession of oxycodone was not

sufficient to support more than one count of possession with the intent to distribute. We affirm

appellant’s conviction for possession with the intent to distribute hydrocodone and one of

appellant’s convictions for possession with the intent to distribute oxycodone. We reverse the

judgment of the trial court and remand this case to the trial court with instructions to consolidate

the three indictments into one indictment for possession with the intent to distribute oxycodone,

and to sentence appellant accordingly.

Affirmed in part,
reversed in part,
and remanded.

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