COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Overton and Bumgardner
Argued at Salem, Virginia
WILLIAM MARSHALL WARD
MEMORANDUM OPINION * BY
v. Record No. 1164-97-3 JUDGE RICHARD S. BRAY
MAY 19, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG
Richard S. Miller, Judge
Clinton R. Shaw, Jr., for appellant.
Ruth Ann Morken, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief)
for appellee.
William Marshall Ward (defendant) was convicted in a bench
trial for possession of marijuana with intent to distribute, a
violation of Code § 18.2-248.1. On appeal, defendant complains
that the evidence was insufficient to prove the requisite intent
to distribute. We disagree and affirm the conviction.
The parties are fully conversant with the record and this
memorandum opinion recites only those facts necessary to
disposition of the appeal.
When the sufficiency of the evidence is challenged on
appeal, we view the record in the light most favorable to the
Commonwealth, granting it all reasonable inferences fairly
deducible therefrom, and the decision will not be disturbed
unless plainly wrong or without evidence to support it.
Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534,
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
537 (1975).
While executing a search warrant at defendant's residence,
Lynchburg police seized a pager, $97 in cash, and a "plastic
baggie" containing 26.52 grams (.935 ounces) of marijuana from
his bedroom. The packaged marijuana was discovered resting
inside an opened box containing similar plastic "sandwich bags."
Defendant admitted ownership of the marijuana, stating to police
that his girlfriend, Brenda Banks, with whom he shared the
residence, "wasn't dealing drugs," "[t]hat it wasn't hers." At
trial, Banks denied knowledge of the marijuana and testified
that, although defendant "say [sic] he smokes," she had "never
seen him smoke." Defendant testified that the marijuana was for
his use only, but police discovered no paraphernalia consistent
with personal consumption.
Qualified as an expert in the "sale and distribution of
marijuana in the City of Lynchburg," Investigator H.W. Duff
testified that the quantity of marijuana seized had a "street
value" of approximately $530, if divided for distribution into
the customary "dime bag" lots. He also noted that "drug dealers"
often purchase in "large quantity" to "get a better deal." Huff
further testified that plastic sandwich bags are commonplace in
the "drug trade . . . to package narcotics to be sold on the
street" and that a "drug dealer will use a pager to be contacted
at any time."
Defendant argues correctly that "[t]he quantity of the
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controlled substance [possessed] is one factor to be considered"
in determining the intended use by an accused. Davis v.
Commonwealth, 12 Va. App. 728, 733, 406 S.E.2d 922, 925 (1991)
(citations omitted). However, "[a] small quantity of drugs,
along with other circumstances, may support a conviction of
possession with intent to distribute." Id. "Such other
circumstances include the presence of paraphernalia used in
packaging," id., and "the absence of any [evidence] suggestive of
personal use" by an accused. Glasco v. Commonwealth, 26 Va. App.
763, 775, 497 S.E.2d 150, 156 (1998) (citations omitted).
Here, although defendant and two defense witnesses refuted
certain circumstantial evidence of defendant's intent to
distribute, it was within the province of the trial court to
assess credibility and disbelieve all or portions of such
testimony. See Servis v. Commonwealth, 6 Va. App. 507, 525, 371
S.E.2d 156, 165 (1988). Thus, when viewed without regard to
defendant's evidence, the Commonwealth established that defendant
possessed a bulk quantity of marijuana, consistent with a
purchase by a drug dealer for resale at substantial profit,
together with paraphernalia to facilitate distribution, but not
personal consumption, of the drug. Defendant's statement to
police further suggested that defendant possessed the marijuana
for purposes of "dealing." Such evidence provided sufficient
support for the instant conviction.
Accordingly, we affirm the decision.
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Affirmed.
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