COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Willis and Clements
Argued at Richmond, Virginia
MICHAEL LAMONT FOSTER
MEMORANDUM OPINION * BY
v. Record No. 0336-01-2 JUDGE JAMES W. BENTON, JR.
FEBRUARY 12, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
James B. Wilkinson, Judge
Craig W. Stallard, Assistant Public Defender
(Office of the Public Defender, on brief),
for appellant.
Linwood T. Wells, Jr., Assistant Attorney
General (Randolph A. Beales, Attorney
General, on brief), for appellee.
The trial judge convicted Michael Lamont Foster of possession
of cocaine with the intent to distribute in violation of Code
§ 18.2-248. Foster contends the evidence was insufficient to
prove intent to distribute. We agree, and we reverse the
conviction.
I.
The evidence at trial proved that Officer Jason Reese
investigated a report of a suspicious man sitting on a porch and
that, when he arrived at the location, he saw Foster sitting on
the steps. He detained and questioned Foster because Foster was
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
very intoxicated. After Foster gave the officer several false
names and social security numbers, the officer arrested him for
public drunkenness and searched him incident to that arrest.
During the search, the officer seized "four individual rocks [of
cocaine] packaged in four baggie corners" and one hundred and
twelve dollars.
At the conclusion of the evidence, Foster's attorney argued
that the evidence failed to prove intent to distribute and made a
motion to strike the evidence. The trial judge ruled that by
applying his "common sense" and judicial experience he did not
"have any question looking at the amount of the cocaine that it's
more than users have." Accordingly, he denied the motion and
convicted Foster of possession of cocaine with the intent to
distribute.
II.
Foster contends the evidence failed to prove an intent to
distribute and that the trial judge impermissibly relied upon his
knowledge from other cases to infer an intent to distribute. The
Commonwealth argues that Foster possessed an amount of cocaine
greater than ordinarily used for personal use and had a "somewhat
large amount of cash" in small denominations. Thus, it contends
the evidence was sufficient to prove his intent to distribute the
cocaine.
"[T]o convict appellant for having violated Code § 18.2-248,
[the Commonwealth] was required to prove beyond a reasonable doubt
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that appellant knowingly possessed cocaine with the intent to
distribute it." Wilson v. Commonwealth, 16 Va. App. 213, 219, 429
S.E.2d 229, 233 (1993).
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."
When the proof of intent to distribute
narcotics 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. However, possession
of a small quantity creates an inference
that the drug was for the personal use of
the defendant.
Dukes v. Commonwealth, 227 Va. 119, 122, 313 S.E.2d 382, 383
(1984) (citations omitted).
No evidence in this record explains the significance of
"four individual rocks packaged in four baggie corners," which
had a total weight of 2.6 grams. "Existence of the intent [to
distribute] cannot be based upon surmise or speculation."
Patterson v. Commonwealth, 215 Va. 698, 699, 213 S.E.2d 752, 753
(1975). No testimony established facts that would allow a trier
of fact to discern whether the packaging or amount was
indicative of personal use or intent to distribute. See Wells
v. Commonwealth, 2 Va. App. 549, 552-53, 347 S.E.2d 139, 141
(1986). Likewise, no testimony establishes that "four twenties,
two tens, two fives, and two one dollar bills" was an unusual
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manner to have the cash or was so large an amount as to be
manifestly greater than an individual might ordinarily possess.
Based on the evidence in the record, "[i]t is just as plausible
that [Foster] . . . purchased the packaged substance for
personal use as it is that . . . [he] packaged [it] . . . for
distribution." Dukes, 227 Va. at 123, 313 S.E.2d at 384.
We agree with Foster that the trial judge impermissibly
relied upon his own knowledge of proof in other cases to infer
an intent to distribute.
While courts take judicial notice of such
facts as are commonly known from human
experience, "facts which are not judicially
cognizable must be proved, even though known
to the judge or to the court as an
individual. In other words, the individual
and extrajudicial knowledge on the part of a
judge will not dispense with proof of facts
not judicially cognizable, and cannot be
resorted to for the purpose of supplementing
the record."
Darnell v. Barker, 179 Va. 86, 93, 18 S.E.2d 271, 275 (1942)
(citation omitted).
For these reasons, we hold that the evidence failed to
prove beyond a reasonable doubt that Foster possessed the
cocaine with the intent to distribute. Therefore, we reverse
the conviction.
Reversed.
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Michael Lamont Foster v. Commonwealth of VA
Combined Opinion