COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Lemons and Senior Judge Cole
Argued at Richmond, Virginia
DERRICK O. RAMSEY
MEMORANDUM OPINION * BY
v. Record No. 2958-98-2 JUDGE LARRY G. ELDER
OCTOBER 19, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF HOPEWELL
James F. D'Alton, Jr., Judge
Brad P. Butterworth (Butterworth & Waymack,
on brief), for appellant.
Shelly R. James, Assistant Attorney General
(Mark L. Earley, Attorney General; Ruth M.
McKeaney, Assistant Attorney General, on
brief), for appellee.
Derrick O. Ramsey (appellant) appeals from his bench trial
conviction for distribution of cocaine pursuant to Code
§ 18.2-248. 1 On appeal, he contends the evidence was
insufficient to prove he distributed cocaine or possessed it
with an intent to distribute. We agree, and we reverse his
conviction and remand for conviction and sentencing on the
lesser offense of possession of cocaine.
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
1
Appellant also was convicted for possession of marijuana
pursuant to Code § 18.2-250.1. He does not challenge that
conviction on appeal.
I.
FACTS
On February 25, 1998, Detective Michael Whittington met
with a confidential informant, searched him and gave him a
marked twenty-dollar bill. At about 7:15 p.m., the informant
proceeded to 614 Victoria Street, Apartment 57. Whittington saw
the informant go to the door of Apartment 57 but did not see
whether he entered it. When the informant returned about ten
minutes later, he gave Whittington "[s]uspected crack cocaine in
a plastic bag." Whittington again searched the informant and
did not find the marked twenty-dollar bill. With this
information, Whittington sought and obtained a search warrant
for Apartment 57.
At about 3:36 a.m., Whittington and other officers arrived
at the apartment to execute the warrant and discovered the door
had been barricaded with two foot lockers. In a back bedroom,
Whittington found Shatisha Monroe, appellant's girlfriend, on
the right side of the bed; appellant, dressed only in shorts or
sweatpants, was "hanging out the [bedroom] window." Police
later learned that appellant was "a fugitive from Petersburg."
On the headboard on the left side of the bed, the officers
saw in plain view two clear plastic baggies, one containing five
rocks of crack cocaine totaling 1.094 grams and the other
containing 3.4 grams of marijuana. Appellant said the cocaine
and marijuana were his and that Monroe "didn't have anything to
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do with it." In a closet in the bedroom, the officers found a
man's black leather jacket in a size that would have fit
appellant. In the pocket of the jacket, they found $313 in
five-, ten- and twenty-dollar bills. Among the bills was the
marked twenty-dollar bill Whittington had given to the informant
several hours earlier. From the dresser in the bedroom, the
officers seized two functional electronic pagers and a Sears
credit card bearing appellant's name. The credit card had
expired in 1996 and had never been signed by appellant. Current
bills on the dresser bore only Monroe's name. In the kitchen,
the officers found a small electronic scale with powder residue
on it and "boxes of . . . sandwich bags that had the corners cut
off of them." Whittington testified that the scale and baggie
corners were indicative of drug distribution.
The officers found a child and Monroe's brother, a young
male juvenile, asleep in a second bedroom.
Appellant offered evidence that Monroe lived in the
apartment with Monroe's and appellant's four-year-old son and
Monroe's two brothers, ages sixteen and eighteen. Monroe's son
and one of her brothers occupied the other bedroom, and the
other brother slept on the couch. Monroe testified that
appellant did not live there. On February 25, appellant paged
her, said he needed to talk to her because he was going to turn
himself in, and arrived at her apartment at about 1:00 or
1:30 a.m. Monroe said that the black jacket belonged to her
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brother, Orlando, who "used to stay with [her] sometimes," and
that the money in the jacket, which totaled no more than $290,
belonged to her. She said the credit card in appellant's name
was one appellant gave to her so that she could get things for
their child. She kept the card in her room on the mirror and
had never used it.
Appellant took the stand and testified that he and Monroe
were in the bedroom with the television on. He heard banging at
the front door but never heard the police identify themselves,
and said he was merely looking out the window to see who was
there. He admitted he was a convicted felon but denied knowing
the drugs were in the room and denied being in the apartment or
selling drugs from the apartment earlier in the day. Appellant
claimed he never admitted the drugs were his and asked
Whittington to charge him rather than Monroe with the drug
offense because he was concerned about what would happen to his
son if Monroe was arrested. He denied owning the jacket in
which the marked bill was found. His testimony about the other
events of that night roughly paralleled Monroe's.
II.
ANALYSIS
Under familiar principles of appellate review, we examine
the evidence in the light most favorable to the Commonwealth,
granting to it all reasonable inferences fairly deducible
therefrom. See Martin v. Commonwealth, 4 Va. App. 438, 443, 358
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S.E.2d 415, 418 (1987). In its role of judging witness
credibility, the fact finder is entitled to disbelieve the
self-serving testimony of the accused and to conclude that the
accused is lying to conceal his guilt. See Speight v.
Commonwealth, 4 Va. App. 83, 88, 354 S.E.2d 95, 98 (1987) (en
banc).
Appellant was convicted for violating Code § 18.2-248,
which provides that "it shall be unlawful for any person to
manufacture, sell, give, distribute, or possess with intent to
manufacture, sell, give or distribute a controlled substance or
an imitation controlled substance." Any element of a
crime--such as distribution or intent to distribute--may be
proved by circumstantial evidence. See, e.g., Servis v.
Commonwealth, 6 Va. App. 507, 524, 371 S.E.2d 156, 165 (1988).
Such evidence "is as competent and is entitled to as much weight
as direct evidence, provided it is sufficiently convincing to
exclude every reasonable hypothesis except that of guilt."
Coleman v. Commonwealth, 226 Va. 31, 53, 307 S.E.2d 864, 876
(1983).
Here, the evidence, viewed in the light most favorable to
the Commonwealth, establishes that appellant constructively
possessed the cocaine found on the headboard in the master
bedroom, for he admitted to Detective Whittington that the
cocaine was his. However, assuming without deciding that the
evidence also is sufficient to establish that the informant
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purchased cocaine in Apartment 57 at 7:15 p.m. on February 25, 2
insufficient evidence links appellant to that sale or
establishes that he intended to distribute the cocaine in his
possession. The evidence establishes, at best, that appellant
was present in the apartment with cocaine in his possession at
least five hours after the sale. Even if the trial court
rejected the testimony of appellant and Monroe and concluded
that appellant was lying to conceal his guilt, such a conclusion
does not constitute affirmative evidence of guilt, and the
remaining evidence was insufficient to exclude all reasonable
hypotheses of appellant's innocence.
No evidence proved that appellant owned or constructively
possessed the coat, its contents or the items found in the
kitchen. The mere presence of the baggies and scales in the
kitchen and the marked twenty-dollar bill in the coat in the
bedroom closet while appellant possessed the cocaine in plain
view in the bedroom does not exclude the reasonable hypothesis
that the paraphernalia and the coat containing the marked bill
belonged to someone other than appellant. First, both Monroe
and Monroe's teenaged brother were present in the apartment when
the police executed the warrant. Second, the only items in the
bedroom linking appellant to the premises did not exclude the
2
The record contains no indication that the substance was
ever tested and no evidence explaining Whittington's basis for
suspecting the substance was crack cocaine. The informant did
not testify.
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reasonable hypothesis that he did not reside there and arrived,
as he and Monroe testified, only after the sale of cocaine had
occurred at least five hours earlier. Other than his presence,
the only evidence affirmatively linking appellant to the
premises was a credit card in his name which had expired over a
year earlier and had never been signed by him. No evidence
established that he kept clothes, important papers or other
personal possessions there, and all recent bills were in
Monroe's name.
Third, evidence that the front door of the apartment had
been barricaded with footlockers and that appellant may have
attempted to flee through the bedroom window when the police
entered also does not exclude all reasonable hypotheses of
innocence. Although attempted flight is a circumstance which
may be probative of guilt, see, e.g., Hope v. Commonwealth, 10
Va. App. 381, 386, 392 S.E.2d 830, 833 (1990) (en banc), it had
little probative value in this case; the evidence here
establishes that appellant both was guilty of possessing cocaine
and marijuana and was a fugitive wanted by the Petersburg
police, so any attempt at flight could reasonably have been
related to one of these offenses and not to any fear of being
apprehended for distributing or intending to distribute cocaine.
Finally, the Commonwealth offered no evidence that the quantity
of cocaine appellant possessed was consistent with distribution
and inconsistent with personal use. Therefore, although the
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evidence established that appellant possessed the cocaine, it
failed to exclude all reasonable hypotheses of appellant's
innocence on the distribution or intent to distribute charge.
For these reasons, we hold the evidence was insufficient to
support appellant's conviction for distributing cocaine or
possessing it with the intent to distribute pursuant to Code
§ 18.2-248. Therefore, pursuant to appellant's request, we
reverse his conviction and remand to the trial court for
conviction and sentencing for the lesser offense of possession
of cocaine. See Fierst v. Commonwealth, 210 Va. 757, 762-63,
173 S.E.2d 807, 812 (1970) (reversing bench trial conviction for
"possession of more than 25 grains of illegally acquired
narcotic drugs" and remanding for "new sentencing" for
possessing no more than 25 grains).
Reversed and remanded.
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