COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, Petty and Senior Judge Willis
Argued at Chesapeake, Virginia
MAURICE LAMAR THOROGOOD
MEMORANDUM OPINION* BY
v. Record No. 0232-06-1 JUDGE ROBERT P. FRANK
JANUARY 30, 2007
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
Mark S. Davis, Judge
S. Jane Chittom, Appellate Defender (Catherine E. P. Haas, Assistant
Appellate Defender; Virginia Indigent Defense Commission, on
brief), for appellant.
Benjamin H. Katz, Assistant Attorney General (Robert F.
McDonnell, Attorney General, on brief), for appellee.
Maurice Lamar Thorogood, appellant, was convicted, in a bench trial, of possession with the
intent to distribute cocaine, in violation of Code § 18.2-248. On appeal, appellant does not
challenge that he possessed cocaine. Rather, he contends the trial court erred in finding the
evidence sufficient to prove his intent to distribute the cocaine. For the reasons stated, we affirm the
judgment of the trial court.
ANALYSIS
When addressing the sufficiency of the evidence, we “‘presume the judgment of the trial
court to be correct’ and reverse only if the trial court’s decision is ‘plainly wrong or without
evidence to support it.’” Kelly v. Commonwealth, 41 Va. App. 250, 257, 584 S.E.2d 444, 447
(2003) (en banc) (quoting Davis v. Commonwealth, 39 Va. App. 96, 99, 570 S.E.2d 875, 876-77
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
(2002)). In practical terms, a reviewing court does not “‘ask itself whether it believes that the
evidence at the trial established guilt beyond a reasonable doubt.’” Stevens v. Commonwealth, 46
Va. App. 234, 249, 616 S.E.2d 754, 761 (2005) (en banc) (quoting Jackson v. Virginia, 443 U.S.
307, 318-19 (1979)) (emphasis in original), aff’d, 272 Va. 481, 634 S.E.2d 305 (2006). We ask
only whether “‘any rational trier of fact could have found the essential elements of the crime beyond
a reasonable doubt.’” Id. (quoting Kelly, 41 Va. App. at 257, 584 S.E.2d at 447). “‘This familiar
standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the
testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate
facts.’” Kelly, 41 Va. App. at 257-58, 584 S.E.2d at 447 (quoting Jackson, 443 U.S. at 319). Thus,
we do not “substitute our judgment for that of the trier of fact” even if our opinion were to differ.
Wactor v. Commonwealth, 38 Va. App. 375, 380, 564 S.E.2d 160, 162 (2002).
“Because direct proof of intent is often impossible, it must be
shown by circumstantial evidence.” Servis v. Commonwealth, 6
Va. App. 507, 524, 371 S.E.2d 156, 165 (1988). “If evidence of
intent is wholly circumstantial, ‘all necessary circumstances
proved must be consistent with guilt and inconsistent with
innocence and exclude every reasonable hypothesis of
innocence.’” Dukes v. Commonwealth, 227 Va. 119, 122, 313
S.E.2d 382, 383 (1984) (quoting Inge v. Commonwealth, 217 Va.
360, 366, 228 S.E.2d 563, 567 (1976)). 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, 326-27, 528 S.E.2d 123, 133 (2000) (other
citations omitted).
In accord with settled standards of appellate review, we view the evidence in the light
most favorable to the Commonwealth, the party prevailing below. Yopp v. Hodges, 43 Va. App.
427, 430, 598 S.E.2d 760, 762 (2004).
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Here, Detective R.M. Holley, who qualified as an expert in the use, packaging and
distribution of narcotics, opined that possession of three large pieces of crack cocaine, weighing
“a little over nineteen grams” is inconsistent with personal use. Holley pointed out that a heavy
user, who ingests approximately a half of a gram a day, would consume nineteen grams of
cocaine “anywhere from nineteen days to thirty-eight days . . . .” Detective Holley continued:
I’ve never seen a user with nineteen grams on them mainly for the
reason that they don’t want to get ripped off, they don’t want to get
robbed. But this is nineteen hundred dollars worth of crack
cocaine on the street and I’ve just never seen a user with this
amount on the street . . . .
Holley did acknowledge the three large rocks did not appear to be “cut up for major
distribution.” Commenting on the fact no money was found on appellant, Holley testified if
appellant had just purchased the nineteen grams, he could understand the absence of cash.
Nevertheless, a large percentage of dealers do carry currency with them. Holley concluded, “the
fact that someone with nineteen grams of cocaine on them with no money is not a determining
factor whether I find it inconsistent or consistent.” Further, Holley considered the fact that no
smoking device was found.
The foregoing evidence supports the trial court’s conclusion that appellant intended to
distribute cocaine. See Hunter v. Commonwealth, 213 Va. 569, 570, 193 S.E.2d 779, 780 (1973)
(holding that proof that quantity possessed exceeds that normally intended for personal use,
without more, is sufficient to show intent to distribute).
CONCLUSION
For the foregoing reasons, we find that the trial court did not err in finding the evidence
sufficient to convict appellant of possession of cocaine with the intent to distribute. Accordingly,
the trial court is affirmed.
Affirmed.
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