COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Elder and Senior Judge Coleman
Argued at Chesapeake, Virginia
GERRY CARLTON ASKEW
OPINION BY
v. Record No. 0079-02-1 JUDGE SAM W. COLEMAN III
MARCH 18, 2003
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
Dean W. Sword, Jr., Judge
S. Jane Chittom, Appellate Defender (Public
Defender Commission, on briefs), for
appellant.
Stephen R. McCullough, Assistant Attorney
General (Jerry W. Kilgore, Attorney General,
on brief), for appellee.
Gerry Carlton Askew appeals his bench trial conviction for
possession of cocaine with the intent to distribute in violation
of Code § 18.2-248. The sole issue on appeal is whether the
evidence is sufficient to support a finding that appellant
intended to distribute the cocaine. He posits that the only
proven fact which the court could have relied upon to support
the finding that he intended to distribute cocaine was that he
possessed 7.36 grams of crack cocaine, an amount that is not
inconsistent, as a matter of law, with personal use. For the
reasons that follow, we affirm the conviction.
BACKGROUND
"On appeal, 'we review the evidence in the light most
favorable to the Commonwealth, granting to it all reasonable
inferences fairly deducible therefrom.'" Archer v.
Commonwealth, 26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997)
(citation omitted). "The judgment of a 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." Beck v. Commonwealth, 2
Va. App. 170, 172, 342 S.E.2d 642, 643 (1986) (citations
omitted).
Sergeant Butler and Officer Brown stopped a car in
Portsmouth in which appellant was the front seat passenger. As
they approached the car, Butler saw appellant make furtive
movements as if he were hiding something. Police arrested
appellant based on an outstanding warrant for his arrest.
Officer Brown searched appellant incident to the arrest and felt
a suspicious item inside appellant's pants. Sergeant Butler
authorized Brown to conduct a strip search of appellant when
they arrived at police headquarters. When Brown removed
appellant from the cruiser at headquarters, he noticed a plastic
bag of a substance he suspected to be crack cocaine lying on the
front seat where appellant had been sitting. Brown then
searched appellant and found $65 in small denomination bills and
- 2 -
a pager. Appellant possessed no devices with which to ingest
crack cocaine.
The plastic bag recovered from the car seat contained seven
separate plastic bags containing off-white material, which
tested positive for crack cocaine. The total amount of crack
cocaine weighed 7.36 grams.
At trial, Detective Wright was qualified as an expert in
the use and distribution of narcotics. He testified that the
street value of 7.36 grams of cocaine was $700. Wright opined
that 7.36 grams of crack cocaine, when considered with the cash,
pager and lack of a smoking device, was inconsistent with
personal use. On cross-examination, Wright stated that a
typical user of crack cocaine consumes between two-tenths and
one gram per day. Wright added that in the six years he has
investigated narcotics crimes he has not seen a user of crack
cocaine who "stockpiled" three grams for personal use, much less
7.36 grams.
ANALYSIS
As part of his sufficiency argument, appellant contends
Wright's expert opinion "is itself inconsistent with other
expert opinions, from other [expert] police witnesses, in other
cases." Furthermore, because so much variation exists between
experts' opinions in case law as to "the habits of users, then
purported[] expert testimony about the consumption habits of
users is without value as evidence . . . [and] the lack of any
- 3 -
common standard among these purported experts . . . casts doubt
on the reliability of their 'expert' opinions." Thus, because
Wright's expert opinion as to what constitutes personal use was
the only evidence of intent to distribute, other than the
quantity which is insufficient as a matter of law, and because
his expert opinion is unreliable, appellant argues that his
conviction should be reversed.
Proving Intent to Distribute
In cases lacking direct evidence of drug distribution,
intent to distribute "must be shown by circumstantial evidence."
Servis v. Commonwealth, 6 Va. App. 507, 524, 371 S.E.2d 156, 165
(1988). Among the circumstances that tend to prove an intent to
distribute are "the quantity of the drugs seized, the manner in
which they are packaged, and the presence of . . . equipment
related to drug distribution." McCain v. Commonwealth, 261 Va.
483, 493, 545 S.E.2d 541, 547 (2001) (citations omitted).
Pagers and firearms are among the equipment that has been
recognized as tools of the drug trade, the possession of which
are probative of intent to distribute. Glasco v. Commonwealth,
26 Va. App. 763, 775, 497 S.E.2d 150, 156 (1998), aff'd, 257 Va.
433, 513 S.E.2d 137 (1999). Furthermore, "the absence of
paraphernalia suggestive of personal use . . . [is] regularly
recognized as [a] factor[] indicating an intent to distribute."
Welshman v. Commonwealth, 28 Va. App. 20, 37, 502 S.E.2d 122,
130 (1998) (en banc) (citation omitted). "'Possession of a
- 4 -
quantity greater than that ordinarily possessed for one's
personal use may be sufficient to establish an intent to
distribute it.'" Gregory v. Commonwealth, 22 Va. App. 100, 110,
468 S.E.2d 117, 122 (1996) (finding sufficient evidence of
intent to distribute based on possession of seven baggies
containing a total of 3.7 grams of cocaine) (quoting Iglesias v.
Commonwealth, 7 Va. App. 93, 110, 372 S.E.2d 170, 180 (1988) (en
banc)); see also Hunter v. Commonwealth, 213 Va. 569, 570, 193
S.E.2d 779, 780 (1973) (proof that the quantity of drugs
possessed exceeds an amount normally possessed for personal use,
without more, can be sufficient to show an intent to
distribute).
Circumstantial proof of a defendant's intent
includes the quantity of the drugs
discovered, the packaging of the drugs, and
the presence or absence of drug
paraphernalia. Expert testimony, usually
that of a police officer familiar with
narcotics, is routinely offered to prove the
significance of the weight and packaging of
drugs regarding whether it is for personal
use.
Shackleford v. Commonwealth, 32 Va. App. 307, 327, 528 S.E.2d
123, 133 (2000) (citations omitted), aff'd, 262 Va. 196, 547
S.E.2d 899 (2001).
- 5 -
Expert Testimony 1
"An expert witness may express an opinion relative to the
existence or nonexistence of facts not within common knowledge,
but 'the admission of expert opinion upon an ultimate issue of
fact is impermissible because it invades the function of the
fact finder.'" Zelenak v. Commonwealth, 25 Va. App. 295, 299,
487 S.E.2d 873, 875 (1997) (quoting Llamera v. Commonwealth, 243
Va. 262, 264, 414 S.E.2d 597, 598 (1992)). In Davis v.
Commonwealth, 12 Va. App. 728, 733, 406 S.E.2d 922, 925 (1991),
we approved the admissibility of expert opinion testimony on the
issue of whether the amount of an illegal drug possessed by an
accused was, under the circumstances, inconsistent with
individual personal use. But see Llamera, 243 Va. at 265, 414
S.E.2d at 599 (holding that expert testimony that quantity and
packaging of cocaine suggested distribution was inadmissible
opinion on ultimate issue of fact).
As we noted in Shackleford, 32 Va. App. at 327, 528 S.E.2d
at 133, "expert testimony, usually that of a police officer," is
one factor or circumstance which the fact finder may consider in
determining whether drugs were possessed with intent to
distribute. Because the facts and circumstances in each
drug-related case vary, no uniform standard exists to
1
For a discussion on the use of expert testimony to prove
intent to distribute, see Thomas M. Fleming, Annotation,
Admissibility, in Criminal Prosecution, of Expert Opinion
Allegedly Stating Whether Drugs Were Possessed with Intent to
- 6 -
differentiate an amount that is always for personal use or for
distribution. While many states have chosen to differentiate
between the severity or degree of the offense based upon the
amount in one's possession, Virginia recognizes that a drug
dealer may not always possess a large amount of the illegal
contraband. Thus, proof of whether one possesses drugs for
personal use or for distribution depends on the facts of each
case. The creation of an evidentiary presumption based on
possession of a specific amount is left to the legislature.
The quantum of evidence necessary to prove an intent to
distribute depends on the facts and circumstances of each case.
In addition to evidence proving the quantity and type of drug
possessed, the Commonwealth may introduce opinion testimony from
law enforcement officers familiar with the habits and
propensities of local drug users as to what amounts are
inconsistent with personal use. 2
Distribute – State Cases, 83 A.L.R. 4th 629 (1991 and Supp.
2002).
2
Appellant argues on brief that the trial judge erroneously
relied on his prior experience in trying drug cases to find that
appellant did not possess the drugs for personal use, but with
the intent to distribute. The trial judge stated:
The testimony of Mr. Wright is based upon
[his] experience. The Court sees that
testimony, too – and while that's not
evidence in the case, the things that we see
in court day in and day out certainly would
or perhaps would not give some credibility
to the expert testimony that we sometimes
receive in the these cases.
"No ruling of the trial court . . . will be considered as a
basis for reversal unless the objection was stated together with
the grounds therefor at the time of the ruling, except for good
- 7 -
Sufficiency of the Evidence
Appellant's argument is primarily that Wright's expert
opinion is unreliable. He says that Wright's opinion was that
possession of 7.36 grams of crack cocaine, a pager and $65 in
small bills was inconsistent with personal use, and that evidence
was not sufficient to prove an intent to distribute.
As we have previously noted, Wright's expert testimony is
admissible and is not unreliable as a matter of law. His
opinion that those factors he considered are inconsistent with
personal use can be considered by the fact finder together with
other evidence to determine whether the Commonwealth's evidence
proves beyond a reasonable doubt the intent to distribute. The
record contains evidence, in addition to Wright's expert
opinion, to support the finding that appellant possessed the
cocaine with the intent to distribute it. The police found
seven individually wrapped packets of crack cocaine weighing
7.36 grams and having a street value of $700. Appellant's
possession of $65 in currency in small denominations and a
cause shown or to enable the Court of Appeals to attain the ends
of justice." Rule 5A:18.
Without determining whether the judge's statement
constituted a finding or ruling, appellant did not object to the
trial judge's statement. Accordingly, appellant is precluded
from challenging the finding or ruling on appeal. See Rule
5A:18. Moreover, the record reflects no reason to invoke the
good cause or ends of justice exceptions to Rule 5A:18.
- 8 -
pager, a device recognized as a tool of the drug trade, "the
possession of which [is] probative of intent to distribute," are
additional facts together with Wright's opinion testimony that
support the finding of an intent to distribute. Glasco, 26
Va. App. at 775, 497 S.E.2d at 156. Appellant possessed no
devices with which to personally consume crack cocaine.
Moreover, although appellant testified at trial, he never
admitted using crack cocaine or stating that he possessed it for
personal use; instead he denied possessing it. See Shackleford,
32 Va. App. at 327, 528 S.E.2d at 133 (noting absence of claim
that defendant used drugs or presence of device with which to
consume it). The Commonwealth's evidence, which was based on
more than Wright's opinion, was competent, was not inherently
incredible, and was sufficient to prove beyond a reasonable
doubt that appellant possessed the cocaine with the intent to
distribute it. Accordingly, we affirm the judgment of the trial
court.
Affirmed.
- 9 -
Benton, J., dissenting.
"Possession with intent to distribute is a crime which
requires 'an act coupled with a specific intent.'" Stanley v.
Commonwealth, 12 Va. App. 867, 869, 407 S.E.2d 13, 15 (1991) (en
banc) (citation omitted). "It is elementary that where, as here,
an indictment charges an offense which consists of an act
combined with a particular intent, proof of the intent is
essential to conviction." Patterson v. Commonwealth, 215 Va.
698, 699, 213 S.E.2d 752, 753 (1975). Moreover, "a basic
procedural safeguard required by the Due Process Clause . . .
[is] that the prosecution prove beyond a reasonable doubt every
element of the charged offense." Green v. Young, 264 Va. 604,
609, 571 S.E.2d 135, 138 (2002). When, as here, the Commonwealth
must prove beyond a reasonable doubt the specific intent to
distribute cocaine, the "[e]xistence of the intent . . .
cannot be based upon surmise or speculation." Patterson, 215 Va.
at 699, 213 S.E.2d at 753.
The evidence proved that when the police arrested Gerry
Carlton Askew he possessed 7.36 grams of "crack cocaine," sixty
five dollars, and a pager. The principle is well established
that "possession of a small quantity [of a drug] 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). See also Turner v. United States, 396 U.S. 398,
423 (1970) (holding that 14.68 grams of cocaine "is itself
consistent with [the accused] possessing the cocaine not for sale
but exclusively for his personal use"). When asked by the
prosecutor "is the evidence in this case consistent with the
- 10 -
personal use of narcotics?," the detective who testified as an
expert witness said it was not and based his opinion on the
following factors:
The quantity of the drugs, coupled with the
devices used to -- the quantity of the
drugs, the pager, and the money combined
together would be inconsistent with what a
user -- inconsistent with strict personal
use.
To further elaborate on the basis of his opinion, the
detective testified that "the quantity is the most important
factor." He also testified, however, that a cocaine user "could
use a gram in a day." He explained this as follows:
Q. How long will one gram usually last a
crack head, as you put it?
A. It depends on the amount of the
addiction.
Q. In your expert opinion, do you have an
opinion on how you say they go back for
more?
A. Uh-huh. I mean, you could use a gram in
a day.
Q. If he can use a gram a day, he can use
about 7 grams in a week?
A. Yeah, and he could use 360 grams in a
year.
Q. Right. So pretty much -- so is it your
testimony that people with cocaine
addictions usually only buy it on a daily
basis?
A. Usually.
Q. Enough to get them through the day?
A. Yes, ma'am. Actually, not enough to get
them through a day. Enough to get them
through maybe an hour.
- 11 -
Q. That would depend on whether or not they
have money or not; is that right? You say
they don't normally stock up for the winter,
so to speak?
A. Correct. It definitely depends on the
money because they're not giving it away.
Q. Someone with more money could obviously
buy more crack and still have it for
personal use; is that right?
A. Yes, ma'am.
The circumstances of Askew's arrest do not establish he was
distributing or attempting to distribute the cocaine. The
officer's testimony that crack cocaine users "usually" buy their
cocaine at intervals of a day or less is insufficient to prove
Askew's possession of an amount of cocaine which could be used by
a person in seven days was with an intent to distribute.
The evidence also did not prove Askew was using the pager or
had used it while he had the cocaine. Significantly, the officer
testified that in his experience with people in general "everyone
does [have] pagers [and cell phones]." He further acknowledged
that "[j]ust because a person wears a pager on their belt doesn't
necessarily make them a narcotics distributor." No evidence in
this case proved a connection between Askew's possession of the
pager and his intent in possessing the cocaine.
Similarly, no evidence proved a connection between Askew's
money and the cocaine. The officer acknowledged that the $65
Askew had in his possession was not a large amount of currency.
Neither the detective nor any other witness testified that Askew
exchanged any item in his possession for money. Moreover, the
- 12 -
denominations of "two 10s, seven $5 bills, and ten $1 bills" was
not an unusual mixture for this small amount of currency.
The absence of paraphernalia to use the cocaine likewise
does not establish that Askew intended to distribute the cocaine.
Possession for personal use does not connote immediate use or
require use in a public place.
The officer's testimony was patently, internally
inconsistent regarding the factors that were suggestive of an
intent to distribute and was susceptible of two interpretations.
The rule is long standing that "'where a fact is equally
susceptible of two interpretations one of which is consistent
with the innocence of the accused, [the trier of fact] cannot
arbitrarily adopt that interpretation which incriminates him.'"
Corbett v. Commonwealth, 210 Va. 304, 307, 171 S.E.2d 251, 253
(1969) (citation omitted).
It is well settled in Virginia that to
justify conviction of a crime, it is not
sufficient to create a suspicion or
probability of guilt, but the evidence must
establish the guilt of an accused beyond a
reasonable doubt. It must exclude every
reasonable hypothesis except that of guilt.
The guilt of a party is not to be inferred
because the facts are consistent with his
guilt, but they must be inconsistent with
his innocence.
Cameron v. Commonwealth, 211 Va. 108, 110-11, 175 S.E.2d 275, 276
(1970) (citations omitted) (emphasis added).
On the evidence in this record, the trial judge had to
resort to speculation and surmise to find that Askew possessed
the 7.36 grams of cocaine with the intent to distribute it. The
officer's testimony is unambiguous that a user could consume that
- 13 -
quantity within seven days. "It is, of course, a truism of the
criminal law that evidence is not sufficient to support a
conviction if it engenders only a suspicion or even a probability
of guilt. Conviction cannot rest upon conjecture." Smith v.
Commonwealth, 192 Va. 453, 461, 65 S.E.2d 528, 533 (1951). The
evidence in its totality was not consistent only with an intent
to distribute; thus, it failed to prove beyond a reasonable doubt
an intent to distribute the cocaine.
For these reasons, I would reverse the conviction for
possession of cocaine with the intent to distribute it, and
remand for imposition of an order of conviction on the offense of
possession of cocaine.
- 14 -