COURT OF APPEALS OF VIRGINIA
UNPUBLISHED
Present: Judges Huff, Causey and Senior Judge Clements
Argued by videoconference
RUDOLPH ALEXANDER WATSON
MEMORANDUM OPINION* BY
v. Record No. 1350-20-1 JUDGE JEAN HARRISON CLEMENTS
DECEMBER 14, 2021
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE
Timothy S. Wright, Judge
Terence P. Martin, Deputy Public Defender, for appellant.
Timothy J. Huffstutter, Assistant Attorney General (Mark R.
Herring, Attorney General, on brief), for appellee.
The trial court convicted appellant of possession with the intent to distribute a Schedule I or
II drug, in violation of Code § 18.2-248. On appeal, he argues that the evidence was insufficient to
prove that he both possessed and had the intent to distribute the drug. Finding no error, we affirm
his conviction.
BACKGROUND
“In accordance with familiar principles of appellate review, the facts will be stated in the
light most favorable to the Commonwealth, the prevailing party at trial.” Gerald v. Commonwealth,
295 Va. 469, 472 (2018) (quoting Scott v. Commonwealth, 292 Va. 380, 381 (2016)). On April 19,
2019, at approximately 8:40 p.m., Officer Moorman of the City of Chesapeake Police
Department observed a Chevy Impala operating with the right headlight out. Moorman activated
his siren and emergency lights to conduct a traffic stop and pull over the Impala. Moorman
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
parked behind the Impala, which had pulled into a residential driveway, and opened the door to
get out. As Moorman got out of his vehicle and introduced himself, appellant was standing
outside the Impala.
While Moorman was telling appellant that one of his headlights was out, he noticed that
appellant was acting suspiciously by “blading” his body in an apparent attempt to conceal his left
hand. Moorman noticed in appellant’s left hand a plastic bag. As Moorman walked around
appellant to show him his headlight, appellant moved his left hand into the front pocket of his
coat. When appellant pulled his hand out of the coat, his left hand was empty. Moorman used
his flashlight to look into appellant’s coat pocket and saw the same plastic bag that he originally
saw in appellant’s left hand. Moorman described it as “the bitter end of plastic that was torn.”
Moorman asked appellant “what did you put in your pocket,” to which appellant
responded by turning and running away. Moorman quickly apprehended appellant,
approximately five to ten yards from his police vehicle. When Moorman reached appellant in
the short chase, appellant “went head over heels” and “rolled forward, hitting the ground.” Once
appellant was handcuffed and secured, Moorman could not find the plastic bag in appellant’s
pocket.
After walking appellant to the police car, Moorman found a plastic bag on the ground
near where the chase occurred. Described as a “corner baggie,” it contained nineteen smaller
plastic bags and one larger bag, all of which contained a substance later determined by forensic
analysis to be cocaine. Moorman recalled that while he did not see the plastic bag fall from
appellant’s pocket during the short chase, Moorman identified the bag as being consistent with
the plastic bag that he saw in appellant’s left hand and coat pocket. While Moorman admitted
that he did not search the area before his interaction with appellant, there were no other
individuals or plastic bags on the ground in the vicinity. Altogether, the plastic bag and contents
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weighed 6.08 grams. The nineteen smaller bags of cocaine totaled 2.69 grams, and the larger
bag of cocaine weighed 3.39 grams. No cocaine ingestion devices were located on appellant or
in his vehicle. Appellant was then charged with possession with the intent to distribute a
Schedule I or II drug.1
At trial, Detective Souther of the City of Chesapeake Police Department testified as an
expert in drug distribution and narcotics. Souther concluded that the evidence was inconsistent
with personal use of cocaine. She pointed to multiple factors which led to this decision. First,
there were nineteen individual bags all packaged similarly, with an additional larger bag of
cocaine. She testified that, from her training and experience, the nineteen smaller bags were for
distribution. Regarding the bigger bag of cocaine, she stated that when dealers sell out of the
smaller bags, they typically would break up the bigger bag into smaller bags to sell. Second, she
stated that the most cocaine she had seen an individual use was an “8-ball,” which is 3.5 grams.
Here, the plastic bag contained around 6 grams of cocaine. She stated that from her experience,
the purchaser of cocaine will use it within thirty minutes to an hour. Third, Souther thought it
was important that the street value was more expensive than the typical cocaine buy. She
estimated the street value of all the cocaine to be between $300 to $600. She opined that the
typical cocaine user does not spend that much money on a cocaine buy. Souther went on to state
that she had never seen a user spend $300 to purchase cocaine. The last factor she considered
important was that there were no ingestion devices found on the scene.
Appellant moved to strike the evidence, arguing that there was insufficient evidence to
support the charge for possession of the cocaine with the intent to distribute. The trial court
denied appellant’s motion. The trial court found that, given all the evidence, there was an
1
Appellant was also charged with obstructing justice, which was later dismissed by the
trial court upon motion by appellant. The trial court found that there was insufficient evidence to
support the charge.
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inference that the cocaine came out of appellant’s pocket. Next, given the expert testimony, the
trial court found that appellant had the requisite intent to distribute the cocaine. Finally, the trial
court concluded that appellant was guilty of possessing a Schedule I or II drug with the intent to
distribute. This appeal follows.
ANALYSIS
Appellant challenges the sufficiency of the evidence to convict him of possession with the
intent to distribute the cocaine. “When reviewing the sufficiency of the evidence, ‘[t]he judgment
of the trial court is presumed correct and will not be disturbed unless it is plainly wrong or
without evidence to support it.’” Smith v. Commonwealth, 296 Va. 450, 460 (2018) (alteration
in original) (quoting Commonwealth v. Perkins, 295 Va. 323, 327 (2018)). “In such cases, ‘[t]he
Court does not ask itself whether it believes that the evidence at the trial established guilt beyond
a reasonable doubt.’” Secret v. Commonwealth, 296 Va. 204, 228 (2018) (alteration in original)
(quoting Pijor v. Commonwealth, 294 Va. 502, 512 (2017)). “Rather, the relevant question is
whether ‘any rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.’” Vasquez v. Commonwealth, 291 Va. 232, 248 (2016) (quoting Williams v.
Commonwealth, 278 Va. 190, 193 (2009)). “If there is evidentiary support for the conviction,
‘the reviewing court is not permitted to substitute its own judgment, even if its opinion might
differ from the conclusions reached by the finder of fact at the trial.’” Chavez v.
Commonwealth, 69 Va. App. 149, 161 (2018) (quoting Banks v. Commonwealth, 67 Va. App.
273, 288 (2017)).
Appellant makes two main arguments for why there was insufficient evidence to convict
him. First, appellant argues that the evidence was insufficient to prove that he possessed the
cocaine that was discovered on the ground near where the chase occurred. He reasons that
because Moorman did not search the area beforehand, the plastic bag of cocaine could have been
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there prior to the short chase. Additionally, cocaine was never specifically seen in appellant’s
hand, and Moorman did not see appellant throw or drop the bag.
“In order to convict a person of illegal drug possession, the Commonwealth must prove
beyond a reasonable doubt that the accused was aware of the presence and character of the drug
and that the accused consciously possessed it.” Yerling v. Commonwealth, 71 Va. App. 527,
532 (2020). In proving possession, as with any other element, “circumstantial evidence is
competent and is entitled to as much weight as direct evidence[,] provided that the circumstantial
evidence is sufficiently convincing to exclude every reasonable hypothesis except that of guilt.”
Finney v. Commonwealth, 277 Va. 83, 89 (2009) (alteration in original) (quoting Dowden v.
Commonwealth, 260 Va. 459, 468 (2000)).
There are multiple pieces of circumstantial evidence which could lead a rational
fact-finder to believe beyond a reasonable doubt that appellant possessed the cocaine. Moorman
testified that appellant was acting suspiciously from the beginning of the traffic stop. Appellant
immediately exited his vehicle and was “blading” his body, attempting to hide his left hand from
Moorman, which Moorman noticed held a plastic bag. Then, when Moorman moved around
appellant to show that appellant’s headlight was out, appellant moved his hand holding the bag
into his coat pocket. Moorman again noticed the same plastic bag in his coat pocket. When
Moorman asked appellant what was in his pocket, appellant immediately fled, further providing
evidence of his guilt. See Johnson v. Commonwealth, 12 Va. App. 150, 153 (1991) (holding that
defendant’s flight from the scene may be “some evidence of guilty knowledge,” and a finder of
fact could “infer the [defendant] possessed the drugs at the time he began to run”).
The trial court was free to infer that the plastic bag containing cocaine found on the
ground nearby after the chase was the same bag seen in appellant’s hand and pocket. We must
give deference to the trial court “not only to findings of fact, but also to any reasonable and
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justified inferences the fact-finder may have drawn from the facts proved.” Sullivan v.
Commonwealth, 280 Va. 672, 676 (2010) (citing Johnson v. Commonwealth, 209 Va. 291, 295
(1968)).
Even though Moorman did not thoroughly inspect the area prior to his pursuit of
appellant, they were in a residential area with nobody else nearby, and the trial court could
reasonably infer that due to the value of the drugs, it was unlikely to have been abandoned. See
Collins v. Commonwealth, 13 Va. App. 177, 180 (1991) (noting that the trial court could
“discount” the possibility of drugs being abandoned because “the cocaine was ‘something of
significant value and not something that one is likely to have abandoned or carelessly left in the
area there’”). Moorman testified that the plastic bag found on the ground was consistent with the
plastic bag in appellant’s hand and pocket. With no other plastic bags found in the vicinity, and
the bag no longer on appellant’s person after the chase, the trial court was not clearly wrong in
concluding that appellant possessed the bag of cocaine.
Second, appellant argues that the Commonwealth failed to prove he had the intent to
distribute the cocaine because of the absence of large sums of money, scales, and a firearm.
Furthermore, he argues that the weight and value were not to the point to exclude personal use.
“Because direct proof of intent [to distribute drugs] is often impossible, it must be shown
by circumstantial evidence.” Scott v. Commonwealth, 55 Va. App. 166, 172 (2009) (en banc)
(alteration in original) (quoting Servis v. Commonwealth, 6 Va. App. 507, 524 (1988)).
Accordingly, the fact-finder may consider such factors as “the quantity of the drugs discovered,
the packaging of the drugs, and the presence or absence of drug paraphernalia.” Shackleford v.
Commonwealth, 32 Va. App. 307, 327 (2000).
Here, an expert testified that the presence of cocaine was inconsistent with personal use.
“‘Expert testimony, usually that of a police officer,’ is one factor or circumstance which the fact
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finder may consider in determining whether drugs were possessed with intent to distribute.”
Askew v. Commonwealth, 40 Va. App. 104, 110 (2003) (quoting Shackleford, 32 Va. App. at
327). The expert pointed to multiple factors which brought her to that conclusion.
First, the expert stated that the largest dose of cocaine she has seen taken by a user is an
“8-ball,” which is 3.5 grams. Here, the amount was larger, around 6 grams. “Possession of a
controlled substance in ‘a quantity greater than that ordinarily possessed for one’s personal use
may be sufficient to establish an intent to distribute it.’” Williams v. Commonwealth, 52
Va. App. 194, 202 (2008) (quoting Monroe v. Commonwealth, 4 Va. App. 154, 156 (1987)).
Second, she testified that the street value was more than what a typical user purchases,
amounting to between $300 to $600. The expert went on to state that she had never seen a user
spend more than $300 to buy cocaine, and buyers typically use the cocaine within thirty minutes
to an hour of purchasing.
Third, there were no ingestion devices found in appellant’s car or on his person. Lastly,
the bag contained nineteen individually and similarly wrapped bags of cocaine, along with one
larger bag of cocaine. All of these factors listed by the expert are important when determining
whether appellant possessed the intent to distribute the cocaine. See Shackleford, 32 Va. App. at
327.
The trial court was entitled to consider the expert’s testimony to determine whether the
Commonwealth had provided sufficient evidence to prove beyond a reasonable doubt that
appellant possessed the intent to distribute the cocaine. See Askew, 40 Va. App. at 111. The
totality of the evidence supports the trial court’s finding that appellant possessed the intent to
distribute the cocaine.
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CONCLUSION
Accordingly, we affirm the appellant’s conviction.
Affirmed.
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