COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Bray and Bumgardner
Argued at Salem, Virginia
LEROY NEAL BARKSDALE, S/K/A
LEROY NEIL BARKSDALE
OPINION BY
v. Record No. 2566-98-3 JUDGE RICHARD S. BRAY
DECEMBER 28, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE
James F. Ingram, Judge
S. Jane Chittom, Appellate Counsel (Elwood
Earl Sanders, Jr.; Public Defender
Commission, on briefs), for appellant.
John H. McLees, Jr., Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Leroy Neal Barksdale (defendant) was convicted in a bench
trial for possession of cocaine with intent to distribute, a
violation of Code § 18.2-248. On appeal, defendant complains that
the trial court erroneously denied his motion for an order
requiring the Commonwealth to provide a qualitative analysis of
the offending substance. Defendant also challenges the
sufficiency of the evidence to support the conviction. Finding no
error, we affirm the trial court.
I.
In reviewing the sufficiency of the evidence, we consider the
record "'in the light most favorable to the Commonwealth, giving
it all reasonable inferences fairly deducible therefrom. In so
doing, we must discard the evidence of the accused in conflict
with that of the Commonwealth, and regard as true all the credible
evidence favorable to the Commonwealth . . . .'" Watkins v.
Commonwealth, 26 Va. App. 335, 348, 404 S.E.2d 859, 866 (1998)
(citation omitted). The credibility of the witnesses, the weight
accorded testimony, and the inferences to be drawn from proven
facts are matters to be determined by the fact finder. See Long
v. Commonwealth, 8 Va. App. 194, 199, 379 S.E.2d 473, 476 (1989).
"When weighing the evidence, the fact finder is not required to
accept entirely either the Commonwealth's or defendant's account
of the facts," but "may reject that which it finds implausible,
[and] accept other parts which it finds to be believable."
Pugliese v. Commonwealth, 16 Va. App. 82, 92, 428 S.E.2d 16, 24
(1993). The judgment of the trial court will not be set aside
unless plainly wrong or unsupported by the evidence. See Code
§ 8.01-680.
At approximately 3:10 p.m. on August 20, 1997, Danville
Police Patrolman L.R. Kennedy and Detectives Tommy Merricks and
C.D. Evans executed a search warrant for defendant's apartment.
In a nightstand drawer, Evans discovered $105 cash and a "small
black bag like maybe a [sic] electric razor would come in,"
"bulged out" "from the contents." A search of the black bag
revealed "a little plastic bag of white powder," "like a sandwich
bag," marijuana wrapped in a paper towel, an additional $517 cash,
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food stamps, and "flat, electronic type scales." The certificate
of analysis subsequently prepared by the Commonwealth's Division
of Forensic Science identified the "powder" as "cocaine (Schedule
II), 26.2 grams," and defendant admitted possession for his
personal use.
At trial, Detective Merricks qualified as an expert on the
"street value" of cocaine and fixed the worth of 26.2 grams at
$800 to $1,300. Without objection, Merricks described 26.2 grams
as "a large amount to be recovered," noting that he had "not
encountered anyone that is a user that has had [that quantity] of
cocaine at one time," that the most he had "ever seen anyone
purchase for personal use . . . was a hundred dollars' worth."
Defendant testified that he had been a "cocaine addict" for
thirty years and admitted purchasing the subject drugs, a "three
or four day" supply, for $750 several hours prior to the search of
his residence. He claimed that he won the purchase money and
remaining cash by "hitting the lottery," "three days in a row," 1
and "working and everything," and used the scales "to weigh what
[drug dealers] sold" him.
On cross-examination, defendant explained that he supported
his cocaine habit, which consumed seven grams daily, by seasonal
employment several months each year at a weekly wage of $175,
irregular earnings "cleaning gutters and raking leaves[,] . . .
1
Defendant also testified that he "hit the numbers" "eleven
times" in 1997, winning in excess of $500 on each occasion.
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stuff like that," and "shoplifting." Whenever without funds to
purchase cocaine, defendant would "just chill out and . . . use no
drugs." He admitted to "six or seven" prior felony convictions,
including robbery.
II.
Defendant first argues that the trial court erroneously
denied his motion, made immediately prior to the commencement of
trial, that the Commonwealth be required to provide a "quanitative
analysis" of the "powder," identified simply as "cocaine" in the
certificate of analysis, to determine and quantify the composition
of the substance. In support of the motion, defendant's counsel
expressed his "belie[f]" that further analysis would reveal the
presence of a "cutting agent," evidence which may rebut any
inference of an intent to distribute cocaine arising from the
total quantity of powder. In concluding his argument to the
court, counsel acknowledged, "I'm rolling the dice here."
The Supreme Court of Virginia has instructed that "an
indigent defendant 2 who seeks the appointment of an expert
witness, at the Commonwealth's expense, must demonstrate that the
subject which necessitates the assistance of the expert is 'likely
to be a significant factor in his defense,' and that he will be
prejudiced by the lack of expert assistance[,]" resulting "in a
fundamentally unfair trial." Husske v. Commonwealth, 252 Va. 203,
2
The instant record discloses that defendant was indigent.
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211-12, 476 S.E.2d 920, 925 (1996) (footnote added) (citations
omitted), cert. denied, 519 U.S. 1154 (1997); see also Vinson v.
Commonwealth, ___ Va. ___, ___, ___ S.E.2d ___, ___ (1999). Thus,
the Husske Court reasoned that the accused must show a
"particularized need" for such expertise and that "'"'[m]ere hope
or suspicion that favorable evidence is available is not enough to
require that such help be provided.' . . . The determination . . .
whether a defendant has made an adequate showing of particularized
necessity lies within the discretion of the trial judge."'"
Husske, 252 Va. at 212, 476 S.E.2d at 925-26 (citations omitted).
Here, defendant "believe[d]" that a qualitative analysis of
the contraband would precisely quantify the cocaine, apart from
any cutting agent, evidence which he speculates would negate any
inference of an intent to distribute based upon gross weight.
However, nothing in the record establishes the relevance of purity
either to the distribution of cocaine or a related prosecution for
the offense. Perhaps more telling, defendant characterized his
motion as "rolling the dice." Thus, the record failed to
demonstrate a particularized need for the requested expertise but,
rather, defendant's mere hope that the evidence would promote his
defense. Such conjecture, lacking substance, did not implicate
defendant's fundamental right to a fair trial. Accordingly, the
trial court properly denied the motion.
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III.
Defendant next challenges the sufficiency of the evidence to
establish the requisite intent to distribute.
"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) (citation omitted). "When the
proof of intent to distribute rests upon circumstantial evidence,
the quantity which the defendant possesses is a circumstance to be
considered. Indeed, quantity, alone, may be sufficient to
establish such intent if it is greater than the supply ordinarily
possessed for one's personal use." Id. (citation omitted).
Furthermore, "[t]he presence of an unusual amount of money,
suggesting profit from sales," Servis v. Commonwealth, 6 Va. App.
507, 524, 371 S.E.2d 156, 165 (1988) (citation omitted), and "the
presence of paraphernalia," such as scales, are factors supporting
a conviction for possession with intent to distribute. Davis v.
Commonwealth, 12 Va. App. 728, 733, 406 S.E.2d 922, 925 (1991).
Detective Merricks testified that the quantity of cocaine in
defendant's possession was inconsistent with customary personal
use. The drugs were found together with a large sum of money and
electronic scales suitable for weighing like contraband in
furtherance of distribution. Although defendant offered
explanations for the cash, scales and quantity of cocaine to
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refute an intent to distribute, the court was free to ignore his
testimony and "infer that he lied to conceal . . . guilt."
Speight v. Commonwealth, 4 Va. App. 83, 88, 354 S.E.2d 95, 98
(1987).
Accordingly, we find the evidence sufficient to support the
conviction and affirm the decision of the trial court.
Affirmed.
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Benton, J., dissenting.
Leroy Barksdale concedes the evidence is sufficient to
prove his possession of cocaine, but he contends the evidence is
insufficient to prove his intent to distribute. I agree;
therefore, I dissent.
"To satisfy the due process requirements of the . . .
Constitution, the prosecution must bear the burden of proving
all elements of the offense beyond a reasonable doubt." Stokes
v. Warden, 226 Va. 111, 117, 306 S.E.2d 882, 885 (1983). "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. . . . Existence
of the intent, however, cannot be based upon surmise or
speculation." Patterson v. Commonwealth, 215 Va. 698, 699, 213
S.E.2d 752, 753 (1975) (citations omitted). Intent must be
proved beyond a reasonable doubt. See Dukes v. Commonwealth,
227 Va. 119, 123, 313 S.E.2d 382, 384 (1984); Wells v.
Commonwealth, 2 Va. App. 549, 553, 347 S.E.2d 139, 141 (1986).
[W]ell established principles apply to
testing the sufficiency of circumstantial
evidence. In LaPrade v. Commonwealth, 191
Va. 410, 418, 61 S.E.2d 313, 316 (1950),
[the Supreme Court] summarized those
principles as follows:
". . . [I]f the proof relied upon by the
Commonwealth is wholly circumstantial, as it
here is, then to establish guilt beyond a
reasonable doubt all necessary circumstances
proved must be consistent with guilt and
inconsistent with innocence. They must
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overcome the presumption of innocence and
exclude all reasonable conclusions
inconsistent with that of guilt. To
accomplish that, the chain of necessary
circumstances must be unbroken and the
evidence as a whole must satisfy the guarded
judgment that both the corpus delicti and
the criminal agency of the accused have been
proved to the exclusion of any other
rational hypothesis and to a moral
certainty. . . ."
But, circumstances of suspicion, no matter
how grave or strong, are not proof of guilt
sufficient to support a verdict of guilty.
The actual commission of the crime by the
accused must be shown by evidence beyond a
reasonable doubt to sustain his conviction.
Clodfelter v. Commonwealth, 218 Va. 619, 623, 238 S.E.2d 820,
822 (1977).
The detective did not opine that the 26.2 grams of cocaine
was inconsistent with personal use. Indeed, he testified as
follows:
Q: . . . . Now you have not offered an
opinion as to the quantity that can be used
in personal use today?
A: No sir.
Q: You have been strictly only as to value
of this substance on the street?
A: Yes sir.
Although the detective testified that 26.2 grams was not an
amount typically purchased on the street, he testified that in
the past eighteen months he had been involved in operations
where other individuals made purchases on the streets of
Danville of "approximately this quantity" of cocaine. He also
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testified that the purchase value of that quantity of powder
cocaine was $800 to $1,300 and that "powder has been less and
less . . . prevalent on the streets of Danville." The evidence
further proved that although one-eighth of an ounce of cocaine,
known as an "eight-ball," is a typical unit of purchase on the
street, the amount of cocaine Barksdale possessed (26.2 grams),
which is less than an ounce, had been purchased on the streets
by the police. In addition, the detective testified that
heavily addicted cocaine users would want to have an ounce of
cocaine to use if they could "get their hands on it." In short,
this evidence does not establish that the amount of cocaine
Barksdale possessed was not for his personal use. See, e.g.,
United States v. Levy, 703 F.2d 791, 792 (4th Cir. 1983) (noting
that 4.75 ounces of cocaine does not exceed the quantity a user
might store for personal use).
Although scales were found in proximity to the cocaine, no
evidence tended to prove a use other than that testified to by
Barksdale. He testified that he used the scales to weigh the
cocaine after he made purchases so as to assure himself that he
was not being cheated. Considering the absence of proof that
Barksdale possessed any packaging materials or cutting agents or
any other circumstance tending to prove intent to distribute,
the evidence failed to prove that Barksdale intended to
distribute the cocaine which was located in a drawer of a
nightstand in his bedroom.
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For these reasons, I would reverse the conviction for
possession with intent to distribute.
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