COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Senior Judge Cole
Argued at Richmond, Virginia
DYWARD JEAN GREGORY
v. Record No. 2083-94-2 OPINION BY
JUDGE SAM W. COLEMAN III
COMMONWEALTH OF VIRGINIA MARCH 19, 1996
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Jose R. Davila, Jr., Judge
Cullen D. Seltzer, Assistant Public Defender
(David J. Johnson, Public Defender, on
briefs), for appellant.
Eugene Murphy, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
Dyward J. Gregory was convicted in a bench trial of
possession of cocaine with intent to distribute, a second or
subsequent offense, in violation of Code § 18.2-248(C). Gregory
contends that the trial court erred by denying his motion to
suppress the evidence seized from him and that the evidence is
insufficient to prove he intended to distribute cocaine. We hold
that the trial court did not err and affirm the defendant's
conviction.
At approximately 1:56 a.m. on April 9, 1994, Officer Ronald
McClaren, Jr. received a radio dispatch that an anonymous caller
reported that an individual "was standing out in the roadway [at
the 1700 block of Carlyle Avenue in Richmond] flagging motorists
down to ask them if they wanted to buy drugs." The caller
described the individual as a black male wearing a green sweat
jacket with a green hooded jacket underneath, a pair of dark
jeans, and tennis shoes. The caller also provided information
about the color, make, and "other identifying characteristics" of
the automobile from which "the individual was supposedly dealing
in drugs."
About two minutes after receiving the dispatch, Officer
McClaren approached the 1700 block of Carlyle Avenue. He
observed the defendant in a vehicle matching the description
given by the anonymous tipster. The defendant was dressed in the
manner described by the caller.
As McClaren approached the defendant's vehicle, the
defendant looked in McClaren's direction and began to walk away
from the vehicle. He proceeded down Carlyle Avenue and looked
over his shoulder toward McClaren as he walked. Officer McClaren
drove his patrol car beside the defendant and stopped. Because
McClaren could not see one of the defendant's hands, McClaren
told the defendant to show the other hand. The defendant did not
show both hands until McClaren exited his patrol car and drew his
weapon. After the defendant showed both hands, McClaren
reholstered his weapon.
McClaren explained to the defendant that he was responding
to a call that an individual was seen selling drugs and that he
was going to check to determine whether the defendant had
outstanding arrest warrants. McClaren informed the defendant
that he would be free to go if there were no problems. The
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defendant replied, "it's not me. It wasn't me." McClaren then
conducted a pat-down search of the defendant and felt objects,
including a hard object, in the defendant's pocket. When
McClaren asked the defendant what was in the pocket, he replied,
"[p]lease mister, please don't put anything in my pocket."
McClaren asked the defendant again what was in the pocket and the
defendant replied, "I don't know." McClaren then asked the
defendant if he had "permission to go into [the defendant's]
pocket," and the defendant replied, "[s]ure, you do." McClaren
found seven individual bags of crack cocaine in the defendant's
pocket.
Based on the foregoing evidence, the trial court overruled
the defendant's motion to suppress the cocaine.
At trial, McClaren testified that he had recovered seven
baggies containing 3.4 grams of cocaine from the defendant and
that the packaging and quantity of the cocaine were consistent
with distribution. The trial court found the defendant guilty of
possession of cocaine with intent to distribute, a second or
subsequent conviction.
A police officer may lawfully stop and frisk an individual
if the officer possesses a reasonable suspicion, based on
articulable facts, that the individual is or is about to be
engaged in criminal activity. Terry v. Ohio, 392 U.S. 1, 30
(1968). The standard for conducting such a detention is less
than probable cause, but more than an "inchoate and
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unparticularized suspicion or `hunch.'" Moss v. Commonwealth, 7
Va. App. 305, 308, 373 S.E.2d 170, 172 (1988) (quoting Terry, 392
U.S. at 27). "Once the police officer has properly detained a
suspect for questioning, he may conduct a limited pat-down search
of the suspect's outer clothing to search for weapons if the
officer reasonably believes, based on specific and articulable
facts, that the suspect might be armed and dangerous." Phillips
v. Commonwealth, 17 Va. App. 27, 30, 434 S.E.2d 918, 920 (1993).
In considering whether facts based on an anonymous tip are
sufficient to provide a police officer a reason to suspect
criminal activity, the United States Supreme Court has stated
that "anonymous [information that has] been sufficiently
corroborated [may] furnish reasonable suspicion . . . [justifying
an] investigative stop." Alabama v. White, 496 U.S. 325, 331
(1990). Applying Alabama v. White, we have held that although
the police do not have to verify every detail provided by an
anonymous tipster, "[s]ignificant aspects of the informer's
information must be independently corroborated." Bulatko v.
Commonwealth, 16 Va. App. 135, 137, 428 S.E.2d 306, 307 (1993).
See also Johnson v. Commonwealth, 20 Va. App. 49, 54, 455 S.E.2d
261, 264 (1995) (holding that Terry stop was valid because known
reliable "informants provided detailed, predictive information
that the officers were able to corroborate").
Here, the tipster provided a detailed description of the
individual, the car, the location, and the nature of the illegal
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activity in which the individual was engaged. Although Officer
McClaren did not observe the defendant engaged in illegal
activity, McClaren verified certain details of what the tipster
observed within moments after receiving the detailed account.
McClaren verified that the defendant matched the physical
description, wore clothes, and occupied a vehicle matching the
description given by the tipster.
Admittedly, the facts as related by the caller could have
been "easily obtained" by a casual observer. Alabama v. White,
496 U.S. at 332; see Hardy v. Commonwealth, 11 Va. App. 433, 436,
399 S.E.2d 27, 29 (1990) (holding that verification of "innocent"
behavior is not sufficient to establish probable cause). In that
vein, the Supreme Court noted in Alabama v. White that in
evaluating the informer's reliability that "the anonymous [tip]
contained a range of details relating not just to easily obtained
facts and conditions existing at the time of the tip, but to
future actions of third parties ordinarily not easily predicted."
Alabama v. White, 496 U.S. at 332 (quoting Illinois v. Gates,
462 U.S. 213, 245 (1983)). The Court noted, however, that
reasonable suspicion depends upon "the content of information
possessed by [the] police" as well as its reliability. Id. at
330. Accordingly, a detailed description, like that given here,
by a caller who appears to have been a concerned citizen who
recently observed a person hailing motorists to sell drugs,
together with immediate verification of aspects of the
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description are important factors to consider in determining
whether the officer had reasonable suspicion, even when the
description contains facts that are "easily obtained." See
Draper v. United States, 358 U.S. 307 (1959).
This Court has held that Alabama v. White does not preclude
a finding of reasonable suspicion when the anonymous tipster does
"not provid[e] the government with information that predicts the
future actions of the [defendant], if some other indicia of
reliability of the informant exists." Beckner v. Commonwealth,
15 Va. App. 533, 535, 425 S.E.2d 530, 531 (1993).
It is well established that whether reasonable suspicion
"exists to warrant an investigatory stop is determined by the
totality of the circumstances." Smith v. Commonwealth, 12 Va.
App. 1100, 1103, 407 S.E.2d 49, 51 (1991).
The circumstances we may consider include "the
`characteristics of the area' where the stop occurs,
the time of the stop, whether late at night or not, as
well as any suspicious conduct of the person accosted
such as an obvious attempt to avoid officers or any
nervous conduct on the discovery of their presence."
Id., 407 S.E.2d at 51-52 (quoting Williams v. Commonwealth, 4 Va.
App. 53, 67, 354 S.E.2d 79, 87 (1987) (quoting United States v.
Bull, 565 F.2d 869, 870-71 (4th Cir. 1977), cert. denied, 435
U.S. 946 (1978))). These circumstances are also relevant in
determining the reliability of an anonymous informant.
In the present case, Officer McClaren found the defendant
alone around 2:00 a.m. McClaren testified that "we always
receive complaints of drug dealing in the area of [the 1700 block
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of] Carlyle Avenue." He also observed further suspicious
behavior by the defendant. McClaren testified that "when [the
defendant] looked in my direction and saw me he immediately began
walking away from the vehicle and began walking down Carlyle
Avenue." The defendant walked away from McClaren and looked over
his shoulder. When McClaren pulled his patrol car along side the
defendant and said, "good morning," the defendant replied,
"what," and according to McClaren, seemed "slightly agitated."
The defendant had one of his hands slightly behind his back, and
McClaren commanded him to "[s]how me the other hand." The
defendant refused to show his hands until McClaren exited his
patrol car and drew his weapon.
In Smith v. Commonwealth, the police officer saw Smith
shortly after 10:00 p.m. on a playground that had a reputation as
a place where drugs were prevalent. When Smith looked in the
officer's direction, Smith suddenly placed something in his front
pants pocket. We held that the officer's observations were
insufficient to warrant an investigatory stop. Smith, 12 Va.
App. at 1104, 407 S.E.2d at 52; see also Goodwin v. Commonwealth,
11 Va. App. 363, 367, 398 S.E.2d 690, 692 (1990); Moss, 7 Va.
App. at 308, 373 S.E.2d at 172.
In the present case, however, Officer McClaren observed the
defendant at 2:00 a.m., in a known drug area, walking away from a
car he had previously occupied. As he walked away, he looked
over his shoulder repeatedly at Officer McClaren. Although
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McClaren did not observe the defendant flagging down cars or
engaging in other activity consistent with drug distribution, the
fact that the defendant exited his car and acted nervously upon
noticing the police tends to add credence to the officer's
suspicion that the defendant was the person the tipster had
described as flagging down vehicles and offering to sell the
occupants drugs. The defendant's behavior thus tended to support
the informer's report. Based upon the details of the informer's
tip concerning the defendant's conduct in hailing motorists
offering to sell drugs, the detailed description of the
defendant, and Officer McClaren's independent observations and
partial verification, McClaren had reason to suspect that the
defendant was engaged in selling drugs. See Draper, 358 U.S.
307. Therefore, when McClaren stopped the defendant he had
reason to detain the defendant temporarily in order to inquire
about his activities and to investigate whether defendant was
engaged in criminal activity.
Officer McClaren stated during cross-examination that he
requested and was granted permission to search the defendant's
pockets. The trial court found that the defendant granted "clear
permission . . . for entry into [his] pockets." "The test of a
valid consent search is whether it was `freely and voluntarily
given.'" Deer v. Commonwealth, 17 Va. App. 730, 734, 441 S.E.2d
33, 36 (1994) (quoting Bumper v. North Carolina, 391 U.S. 543,
548 (1968)). The Commonwealth must demonstrate that the consent
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was not the product of duress, and "[t]he question of whether a
particular `consent to a search was in fact voluntary or was the
product of duress or coercion, express or implied, is a question
of fact to be determined from the totality of all the
circumstances.'" Id. at 735, 441 S.E.2d at 36 (quoting
Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973)).
Here, Officer McClaren conducted a valid Terry stop.
Although he drew his weapon when the defendant did not show both
hands, he reholstered the gun before asking for permission to
search the defendant's pockets. McClaren informed the defendant
that he was investigating a report of drug dealing and that the
defendant would be free to go if there were no problems. On
these facts, the trial court's finding that the defendant
voluntarily consented to the search of his pockets was not
"clearly erroneous." Limonja v. Commonwealth, 8 Va. App. 532,
540, 383 S.E.2d 476, 481 (1989) (en banc), cert. denied, 495 U.S.
905 (1990).
The defendant also contends that the evidence was
insufficient to prove that he intended to distribute the cocaine
seized from him. On appeal, the evidence is "viewed in the light
most favorable to the Commonwealth, and given all reasonable
inferences fairly deducible therefrom." Albert v. Commonwealth,
2 Va. App. 734, 741-42, 347 S.E.2d 534, 538 (1986). This Court
will not disturb the trial judge's verdict "unless it is plainly
wrong or without evidence to support it." Id. at 742, 347 S.E.2d
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at 538-39.
"When the proof of intent to distribute narcotics rests upon
circumstantial evidence, the quantity which the defendant
possesses may indicate the purpose for which it is possessed.
Possession of a quantity greater than that ordinarily possessed
for one's personal use may be sufficient to establish an intent
to distribute it." Iglesias v. Commonwealth, 7 Va. App. 93, 110,
372 S.E.2d 170, 180 (1988) (en banc) (citations omitted). At
trial, Officer McClaren testified that, based upon his training
and experience, he believed that possession of 3.4 grams of
cocaine was consistent with distribution, not personal use.
Moreover, McClaren also testified that the method of packaging of
the cocaine seized from the defendant was consistent with
distribution. See Early v. Commonwealth, 10 Va. App. 219, 222,
391 S.E.2d 340, 341-42 (1990). Although Officer McClaren
testified on cross-examination that it was conceivable that an
individual with "a serious addiction" could consume around three
grams of cocaine in two days, we hold that his testimony, viewed
in the light most favorable to the Commonwealth, was sufficient
to prove intent to distribute.
In addition to testifying that the amount of cocaine seized
and the method of packaging were consistent with distribution,
McClaren also testified that the tipster reported that an
individual was "standing in the street waving down motorists
[and] asking them if they wanted to purchase drugs." Although
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the tipster's statement was inadmissible hearsay, see Arnold v.
Commonwealth, 4 Va. App. 275, 279-80, 356 S.E.2d 847, 850 (1987),
the defendant failed to object to the statement at the time it
was offered into evidence. See Burns v. Board of Supervisors,
227 Va. 354, 363, 315 S.E.2d 856, 862 (1984) (holding that
failure to object to the admission of the statement constitutes a
waiver of the hearsay objection). Therefore, the statement was
properly before the trial court and was relevant to prove the
defendant's guilt.
Because the anonymous tip was sufficiently corroborated,
Officer McClaren had reasonable suspicion to conduct a Terry
investigatory stop. The seizure of the cocaine was valid because
the defendant voluntarily consented to the search of his pockets.
Therefore, the trial court did not err by overruling the
defendant's motion to suppress the cocaine. Moreover, the
evidence was sufficient to prove that the defendant intended to
distribute the cocaine seized from him. Accordingly, we affirm
the defendant's conviction.
Affirmed.
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BENTON, J., dissenting.
The evidence proved that the police dispatcher relayed an
anonymous telephone tip to the officer. The officer acted on the
tip and stopped Gregory. However, the officer did not know the
tipster and had no basis to believe the tipster was honest or
reliable. The evidence failed to establish that the anonymous
tipster was reliable. Thus, the evidence failed to prove that
the officer had a reasonable articulable suspicion to support a
Terry stop.
The principle is well established that "[t]he informant must
provide some basis for his knowledge before the police officer
relies upon it as being reliable enough to support an
investigatory stop." Beckner v. Commonwealth, 15 Va. App. 533,
537, 425 S.E.2d 530, 533 (1993). In a case involving an
anonymous tip, the Supreme Court ruled as follows in upholding a
Terry stop:
[T]he independent corroboration by the police
of significant aspects of the informer's
predictions imparted some degree of
reliability to the other allegations made by
the caller.
[It is] also important that, as in
[Illinois v. Gates, 462 U.S. 213 (1983)],
"the anonymous [tip] contained a range of
details relating not just to easily obtained
facts and conditions existing at the time of
the tip, but to future actions of third
parties ordinarily not easily predicted."
Id., at 245. . . . What was important was
the caller's ability to predict respondent's
future behavior, because it demonstrated
inside information - a special familiarity
with respondent's affairs.
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Alabama v. White, 496 U.S. 325, 332 (1990). Despite the
predictive nature of the tip and the corroboration, the Court
nonetheless concluded that "it [was] a close case." Id.
Although this Court, in dicta, has stated that reasonable
suspicion may exist even if the anonymous tipster does not
"provid[e] the government with information that predicts the
future actions of the [defendant]," that statement was premised
upon proof in the record that "some other indicia of reliability
of the informant exists." Beckner, 15 Va. App. at 535, 425
S.E.2d at 531. In the absence of predictive information, the
ingredient that allowed the Supreme Court in White to infer that
the content of the information "demonstrated [the tipster had]
. . . a special familiarity with the [suspect's] affairs," 496
U.S. at 332, the Commonwealth must prove that the tipster had a
special familiarity with the details of Gregory's affairs. Only
then will the evidence support the anonymous tipster's
reliability through other "indicia." See id. at 329-32.
The tip that the officer acted upon when he stopped Gregory
"'provide[d] virtually nothing from which one might conclude that
[the tipster was] either honest or his information reliable.'"
496 U.S. at 329. Nothing intrinsic to the tip reasonably allowed
the officer to draw conclusions of honesty or reliability. The
tip did not contain any information that indicated the tipster
had a familiarity with Gregory's affairs. The tip neither
predicted his future behavior nor contained "a range of details
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relating not just to easily obtained facts and conditions
existing at the time of the tip." White, 496 U.S. at 332.
The substance of the tip might support an inference that the
tipster saw Gregory in the vicinity. However, the tip did not
convey any other information upon which an inference of guilt
could have been made. The tipster might have been someone who
merely bore a grudge against Gregory, or a practical joker, or
another suspicious police officer. The record does not disclose
any information concerning the tipster and contains no basis upon
which to conclude that the tipster "appears to have been a
concerned citizen." Precisely because someone can easily harass
another person, the Supreme Court has stated that "if a tip has a
relatively low degree of reliability, more information will be
required to establish the requisite quantum of suspicion than
would be required if the tip were more reliable." White, 496
U.S. at 330.
To guard against that same mischief, this Court barred Terry
stops based on tips that reflected no more than a suspicion or a
hunch of criminal activity.
The facts that the police rely upon must
amount to more than an "inchoate and
unparticularized suspicion or 'hunch.'"
Here, the informant's tip did not provide a
range of detail that would elevate what may
have been a mere "hunch" to a reasonable
suspicion. If a hunch is not enough for a
police officer to effectuate a stop, it
follows that the hunch of an unnamed
informant, albeit an informant with some
indicia of personal reliability, is also not
sufficient. The fact that the informant's
hunch is conveyed to the police officer does
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not raise the hunch to the level of
reasonable suspicion. "Manifestly, this
conduct falls below activity necessary to
justify a reasonable suspicion that a
violation of law had occurred or was
occurring."
Beckner, 15 Va. App. at 537, 425 S.E.2d at 533 (citations
omitted). The tip in this case neither established that the
caller was "honest [nor] his information reliable," White, 496
U.S. at 329, nor negated the hypothesis that the tip was based
solely on the observer's hunch. Beckner, 15 Va. App. at 537, 425
S.E.2d at 533. "[S]omething more" than the tip was necessary to
establish reasonable suspicion in this case. White, 496 U.S. at
329 (quoting Illinois v. Gates, 462 U.S. 213, 227 (1983)).
The Commonwealth attempted to establish the tipster's
reliability by showing that the officer corroborated aspects of
the tip by the officer's independent observations. Although the
officer testified that he observed facts reported by the tipster,
he observed nothing more than any uninformed tipster might have
seen. The criminal conduct that the tipster reported, which may
have been embellished because of a hunch, was not observed by the
officer.
The record established that the anonymous tipster described
a person to the police dispatcher and informed the dispatcher
that the person was "standing out in the roadway flagging
motorists down to ask them if they wanted to buy drugs." When
the officer arrived at the particular street, he saw a man
sitting in a vehicle and dressed as described by the tipster.
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The officer saw no criminal or unusual activity. Thus, the
officer did not corroborate in any manner the tipster's report of
illegal conduct. The Commonwealth's assertion that "[c]learly
the officer reasonably inferred that the [tipster] had observed
[Gregory] in the act of selling drugs" is baseless. This record
provides no foundation from which any such inference could have
been drawn. Before the officer stopped Gregory, the officer
observed "nothing more than innocent details which any casual
observer could have given. . . . Anyone who saw [Gregory] . . .
that day could have given the same description of him." Hardy v.
Commonwealth, 11 Va. App. 433, 435, 399 S.E.2d 27, 28 (1990).
The corroboration the Commonwealth relies upon consists of
wholly innocent activity that would normally not command the
attention of the police. These facts do not provide a basis to
conclude that the tipster was reliable and certainly do not
negate the hypothesis that the tipster's report was any more than
a hunch of criminal activity. See Beckner, 15 Va. App. at 537,
425 S.E.2d at 533. The only reasonable inference to draw from
these facts is that the tipster saw Gregory in the area, nothing
more. Conceding that the officer did not observe Gregory
approaching passing vehicles or engaging in other activity
consistent with drug distribution, the majority concludes that
Gregory's departure from his car and "nervous" demeanor added
credence to the tipster's report that a similarly dressed person
had been offering to sell drugs. I fail to see the connection.
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Nothing that the officer observed in Gregory's behavior supported
the tipster's report. When Gregory walked away from his vehicle
and watched the police vehicle, he was engaged in perfectly
lawful activity. We have no idea why Gregory acted as he did.
However, he had a right to walk away from a police officer unless
the police officer had grounds to detain him. The circular
nature of the majority's reasoning is obvious. If you walk away
from a police officer, you can't be stopped except upon
reasonable suspicion, but if you walk away, ipse dixit, you have
given the officer reasonable suspicion.
In Smith v. Commonwealth, 12 Va. App. 1100, 407 S.E.2d 49
(1991), a police officer saw Smith shortly after 10:00 p.m. on a
playground that had a reputation as a place where drugs were
prevalent. When Smith looked in the officer's direction, Smith
suddenly placed something in his pants pocket. This Court held
that the officer's observations of "suspicious" activity were not
sufficient to warrant an investigatory stop. 12 Va. App. at
1104, 407 S.E.2d at 52. See also Goodwin v. Commonwealth, 11 Va.
App. 363, 367, 398 S.E.2d 690, 692 (1990); Moss v. Commonwealth,
7 Va. App. 305, 308, 373 S.E.2d 170, 172 (1988). Likewise, the
evidence in this record does not support the trial judge's
finding that Gregory was lawfully stopped. I would hold that the
trial judge erred in refusing to suppress the evidence.
Furthermore, the evidence in this case failed to prove
beyond a reasonable doubt that Gregory intended to distribute the
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cocaine that was seized. The Commonwealth's proof of intent to
distribute was based primarily upon the following testimony of
the arresting officer:
Q Seven individual baggies with how much
weight?
A 3.4 grams.
Q Based upon your training and experience,
is that method of packaging with that weight,
is that consistent with personal use or
distribution?
A Distribution.
Q You base that on your years of working in
the property section and your training and
experience as a police officer?
A Yes, sir.
The officer admitted, however, that a user of cocaine could
personally consume three grams of cocaine in two days. On cross-
examination, the officer was unable to testify as to the usage of
a typical addicted person.
Q Officer, based on your training and
experience, how much crack cocaine could an
individual smoke in a day if they're an
addict?
A If they're an addict?
Q Yes.
A Well, I couldn't really go into as far as
what personal consumption would be for an
individual.
The relatively small quantity of cocaine warrants the
inference that Gregory possessed it for his personal use. See
Dukes v. Commonwealth, 227 Va. 119, 122-23, 313 S.E.2d 382, 384
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(1984). Moreover, no other evidence indicated an intent to
distribute. The individual packages of cocaine were not unique.
"The mode of packaging and the way the packages were hidden are
as consistent with possession for personal use as they are with
intent to distribute." Id. at 123, 313 S.E.2d at 384.
For these reasons, I would also hold that the evidence
failed to prove beyond a reasonable doubt that Gregory possessed
the cocaine with intent to distribute. Thus, I would reverse the
conviction.
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