COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Clements and Agee
Argued at Richmond, Virginia
CHARLES DELK
MEMORANDUM OPINION * BY
v. Record No. 2498-00-2 JUDGE LARRY G. ELDER
DECEMBER 27, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
James B. Wilkinson, Judge
Gregory W. Franklin, Assistant Public
Defender (Office of the Public Defender, on
brief), for appellant.
Marla Graff Decker, Assistant Attorney
General (Randolph A. Beales, Attorney
General, on brief), for appellee.
Charles Delk (appellant) appeals from his bench trial
conviction for possession of cocaine with intent to distribute.
We hold the evidence, viewed in the light most favorable to the
Commonwealth, provided reasonable suspicion that appellant was
trespassing and supported a finding that he possessed the
cocaine found on his person with an intent to distribute it, and
we affirm the conviction.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
A.
MOTION TO SUPPRESS
On appeal of the denial of a motion to suppress, we view
the evidence in the light most favorable to the Commonwealth.
Commonwealth v. Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d
47, 48 (1991). "[W]e are bound by the trial court's findings of
historical fact unless 'plainly wrong' or without evidence to
support them," McGee v. Commonwealth, 25 Va. App. 193, 198, 487
S.E.2d 259, 261 (1997) (en banc), but we review de novo the
trial court's application of defined legal standards such as
reasonable suspicion to the particular facts of the case, see
Ornelas v. United States, 517 U.S. 690, 699, 116 S. Ct. 1657,
1663, 134 L. Ed. 2d 911 (1996).
In order to justify a Terry stop, an officer must have a
"reasonable and articulable suspicion of criminal activity on
the part of the defendant." Commonwealth v. Holloway, 9 Va.
App. 11, 15, 384 S.E.2d 99, 101 (1989). An officer who develops
such a reasonable suspicion may stop a person "in order to
identify him, to question him briefly, or to detain him briefly
while attempting to obtain additional information" to confirm or
dispel his suspicions. Hayes v. Florida, 470 U.S. 811, 816, 105
S. Ct. 1643, 1647, 84 L. Ed. 2d 705 (1985).
An officer may not search a suspect simply because he is
effecting a Terry stop, see, e.g., Adams v. Williams, 407 U.S.
143, 146, 92 S. Ct. 1921, 1923, 32 L. Ed. 2d 612 (1972), but he
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may do so if he obtains the suspect's consent, see, e.g.,
Reynolds v. Commonwealth, 9 Va. App. 430, 439, 388 S.E.2d 659,
665 (1990). "The mere fact that a person is in custody at the
time he . . . consents to a search is not sufficient in itself
to demonstrate a coerced consent to search." Id.; see Gray v.
Commonwealth, 233 Va. 313, 327, 356 S.E.2d 157, 164 (1987)
(holding fact that suspect was under arrest and in handcuffs did
not prevent him from giving valid consent for search of his
car). The question whether "a 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." Schneckloth v. Bustamonte,
412 U.S. 218, 227, 93 S. Ct. 2041, 2048, 36 L. Ed. 2d 854
(1973). The Commonwealth bears the burden of proving
voluntariness by a preponderance of the evidence. See Camden v.
Commonwealth, 17 Va. App. 725, 727, 441 S.E.2d 38, 39 (1994).
The evidence here, viewed in the light most favorable to
the Commonwealth, provided Officer LaMonte P. Tucker with
reasonable suspicion to believe appellant was trespassing, which
justified Officer Tucker's decision to place appellant under
investigative detention while he attempted to obtain additional
information to confirm or dispel his suspicions. During a
consensual encounter, appellant told Officer Tucker he was
visiting his girlfriend, but he merely "pointed in the general
direction of a building" in which he claimed his girlfriend
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resided. Appellant did not identify a specific building or
provide his girlfriend's address or apartment number when
requested to do so. Appellant also said his companion was his
cousin, but appellant was unable to give his companion's last
name and then admitted that the companion was not, in fact, his
cousin. Appellant's continued inability to justify his presence
on the premises during the consensual encounter provided Officer
Tucker with reasonable suspicion to detain appellant briefly in
order to investigate further.
In addition, the evidence supported the trial court's
finding that appellant's consent to the search was voluntary.
The encounter occurred in broad daylight. Although it involved
two uniformed officers, only Officer Tucker approached
appellant, and neither officer exhibited any other show of
authority until Officer Tucker told appellant he was placing him
under investigative detention. Appellant was "[p]retty calm"
once detained, and Officer Tucker obtained permission to
handcuff appellant, telling appellant specifically that he was
not under arrest. When appellant said, "[Y]es," to Tucker's
inquiry about whether he minded if Tucker searched him, Tucker
inquired again, this time rephrasing his question to determine
whether appellant's response indicated that Tucker could search
him or instead indicated that he would mind if Tucker searched
him. When Tucker asked appellant two more times, "I can search
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you?", appellant responded, "[Y]es," making clear to Tucker that
he consented to be searched.
Thus, the evidence, viewed in the light most favorable to
the Commonwealth, supported the trial court's express finding
that there was "no coercion whatsoever," and we hold the trial
court's denial of the motion to suppress was not erroneous.
B.
SUFFICIENCY OF EVIDENCE TO PROVE INTENT TO DISTRIBUTE
We examine the evidence in the light most favorable to the
Commonwealth, granting to its evidence all reasonable inferences
fairly deducible therefrom. See, e.g., Higginbotham v.
Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975).
Circumstantial evidence is as competent as direct evidence to
prove the elements of a crime as long as the evidence as a whole
excludes all reasonable hypotheses of innocence flowing from it.
See, e.g., Tucker v. Commonwealth, 18 Va. App. 141, 143, 442
S.E.2d 419, 420 (1994). Intent may be proved by circumstantial
evidence, including the quantity of drugs and cash possessed,
the method of packaging, and whether appellant himself used
drugs. Servis v. Commonwealth, 6 Va. App. 507, 524, 371 S.E.2d
156, 165 (1988); Hambury v. Commonwealth, 3 Va. App. 435, 438,
350 S.E.2d 524, 525 (1986).
Officer David Naoroz, who qualified as an expert in street
level narcotics packaging and distribution, testified that
appellant's possession of 1.626 grams of cocaine packaged in
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twelve individual packages without simultaneous possession of a
smoking device was inconsistent with personal use because
someone using that quantity of drugs himself "would usually buy
that amount [in] a few [big] chunks, not 12 [smaller] chunks"
and would have a smoking device in his possession. The evidence
also established that appellant, who had no job, was found in
possession of more than two hundred dollars in cash. Thus, the
only reasonable hypothesis flowing from the evidence, viewed in
the light most favorable to the Commonwealth, was that appellant
possessed the cocaine with the intent to distribute it rather
than use it himself.
For these reasons, we hold that the trial court's denial of
appellant's motion to suppress was not erroneous and that the
evidence was sufficient to prove appellant intended to
distribute the crack cocaine found in his possession.
Therefore, we affirm his conviction.
Affirmed.
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