noting that when considering whether the defendant possessed multiple types of drugs with intent to distribute, his “assertion that he uses one type of drug, contrasted with his silence regarding the use of the other type ‘undermine[ed] [the defendant]’s argument that personal use is the only reasonable hypothesis of possession’” (quoting Harper v. Commonwealth, 49 Va. App. 517, 522 , 642 S.E.2d 779, 781 (2007))
How later courts described this case
- noting that when considering whether the defendant possessed multiple types of drugs with intent to distribute, his “assertion that he uses one type of drug, contrasted with his silence regarding the use of the other type ‘undermine[ed] [the defendant]’s argument that personal use is the only reasonable hypothesis of possession’” (quoting Harper v. Commonwealth, 49 Va. App. 517, 522 , 642 S.E.2d 779, 781 (2007))
- “We have consistently held that the absence of paraphernalia consistent with use is another factor indicating that the drugs were possessed with the intent to distribute.”
- applying the same logic to a defendant’s “silence regarding the use” of the drug he was charged with possessing with an intent to distribute
- “the Commonwealth need only exclude reasonable hypotheses of innocence that flow from the evidence, not those that spring from the imagination of the defendant” (quoting Hamilton v. Commonwealth, 16 Va. App. 751, 755 (1993))
Written by the judges who cited it.
The opinion
COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Felton, Judges Elder, Frank, Humphreys, Kelsey, McClanahan, Haley, Petty,
Beales, Powell and Alston
Argued at Richmond, Virginia
WILLIAM LEE SCOTT
OPINION BY
v. Record No. 1482-08-2 JUDGE CLEO E. POWELL
NOVEMBER 17, 2009
COMMONWEALTH OF VIRGINIA
UPON A REHEARING EN BANC
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Clarence N. Jenkins, Judge
Cassandra M. Hausrath, Assistant Public Defender (Office of the
Public Defender, on brief), for appellant.
Erin M. Kulpa, Assistant Attorney General (William C. Mims,
Attorney General, on brief), for appellee.
This matter comes before the Court on a rehearing en banc from an unpublished panel
decision of June 2, 2009. William Lee Scott (“Scott”) was convicted in a bench trial of
possession of cocaine with intent to distribute in violation of Code § 18.2-248. On appeal, Scott
challenges the sufficiency of the evidence to convict him for possession of cocaine with intent to
distribute. A divided panel of this Court reversed the decision of the trial court as to the
possession with intent to distribute cocaine and remanded the case for a new trial on a charge of
simple possession. At the request of the Commonwealth, we granted a petition for rehearing en
banc. Upon rehearing en banc, we find that the evidence was sufficient to convict Scott for
possession of cocaine with intent to distribute and affirm the decision of the trial court.
I. BACKGROUND
On the evening of September 13, 2007, Officers Michael Kielb and Shane Watson were
on patrol in an apartment complex where drug activity had been reported. After observing a
white Cadillac fail to properly obey a stop sign, the officers initiated a traffic stop.
Officer Watson approached the car and spoke with the driver, while Officer Kielb
scanned the interior of the vehicle to check for contraband or weapons. Officer Kielb recognized
Scott, who was sitting in the front passenger seat, as having prior arrests for drugs and weapons
violations.
Officer Kielb noticed a hand-rolled cigar that he immediately recognized as contraband
between the passenger door and the passenger seat. Based on his past experience with narcotics,
Officer Kielb knew that marijuana users “will take an already made cigar, unravel it, dump out
the tobacco content and refill it with marijuana and twist the ends, making themselves a
hand-rolled cigar of marijuana.” Officer Kielb then motioned to Officer Watson to remove the
occupants from the vehicle in order to retrieve the contraband.
When Officer Kielb began to handcuff Scott, Scott attempted to flee the scene. Both
officers noticed a black object fall from Scott’s waistband as he attempted to flee. Officer Kielb
tackled him ten feet away from the vehicle and placed him in custody. After the struggle, the
officers found that the object that had fallen from Scott’s waistband was a loaded 9-millimeter
handgun.
The officers recovered the hand-rolled cigar of marijuana Officer Kielb had seen in plain
view inside the vehicle and confirmed that it did contain marijuana. Officer Watson then
conducted a search of Scott’s clothing by shaking his pants. Three baggies fell to the ground:
one containing marijuana, another containing a single “rock” of cocaine, and a third containing
cocaine powder. The total weight of the cocaine was 0.733 gram: 0.443 gram of rock cocaine
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and 0.290 gram of cocaine powder. 1 The officers did not find a smoking device or distribution
paraphernalia such as scales, baggy corners, or razor blades on appellant.
After his arrest, Scott admitted that the hand-rolled cigar of marijuana seized from the car
was his and that he smoked marijuana approximately once a week. He did not make any
statements regarding the cocaine.
At trial, Officer Watson testified as an expert in narcotics distribution. According to
Officer Watson, a heavy drug user typically consumed two to three grams of cocaine per day.
He testified that, based on the totality of the circumstances, Scott’s possession of the drugs was
inconsistent with personal use.
At the conclusion of the Commonwealth’s evidence, Scott moved to strike the evidence
as insufficient to convict him of possession of cocaine with intent to distribute. The trial court
denied appellant’s motion to strike. The trial court subsequently found Scott guilty of possession
of cocaine with intent to distribute, possession of a firearm while in possession of cocaine, and
carrying a concealed weapon, third or subsequent offense.
Scott appealed his convictions, arguing that the evidence against him should have been
suppressed, or, in the alternative, that the evidence was insufficient to convict him of possession
of cocaine with intent to distribute. An unpublished panel decision affirmed the trial court’s
decision regarding the suppression of the evidence, and reversed and remanded Scott’s
conviction for possession of cocaine with intent to distribute. See Scott v. Commonwealth,
No. 1482-08-2, 2009 Va. App. LEXIS 251 (Va. Ct. App. June 2, 2009).
1
We further note that the certificate of analysis indicates that, in addition to the
marijuana and cocaine, Scott was also in possession of one tablet of 3,4-
Methylenedioxyamphetamine (MDA), a Schedule I drug.
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II. ANALYSIS
A. EN BANC REVIEW
In the present case, we granted the Commonwealth’s petition for a rehearing en banc on
the sole issue of whether the evidence was sufficient to convict Scott for possession of cocaine
with intent to distribute. Scott did not petition this Court for rehearing en banc on the issue of
whether Officer Kielb had reasonable suspicion to justify his seizure; therefore, we will not
address that issue here. See Ferguson v. Commonwealth, 51 Va. App. 427, 433, 658 S.E.2d 692,
695 (2008) (holding that this Court will not address en banc those issues contained in the panel
decision which were not included in the petition for rehearing en banc). Accordingly, our en
banc review is limited to the question of whether the evidence was sufficient to find Scott guilty
of possession of cocaine with intent to distribute; “the decision of the trial court on [Scott]’s
unchallenged convictions remains undisturbed and we reinstate the panel opinion on the issue[]
not before us.” Id.
B. SUFFICIENCY OF THE EVIDENCE
“When the sufficiency of the evidence is challenged on appeal, we determine whether the
evidence, viewed in the light most favorable to the prevailing party, the Commonwealth, and the
reasonable inferences fairly deducible from that evidence support each and every element of the
charged offense.” Haskins v. Commonwealth, 31 Va. App. 145, 149-50, 521 S.E.2d 777, 779
(1999). “In so doing, we must discard the evidence of the accused in conflict with that of the
Commonwealth, and regard as true all the credible evidence favorable to the Commonwealth and
all fair inferences that may be drawn therefrom.” Watkins v. Commonwealth, 26 Va. App. 335,
348, 494 S.E.2d 859, 866 (1998). “When reviewing the sufficiency of the evidence to support a
conviction, the Court will affirm the judgment unless the judgment is plainly wrong or without
evidence to support it.” Bolden v. Commonwealth, 275 Va. 144, 148, 654 S.E.2d 584, 586
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(2008) (citations omitted). “The weight which should be given to evidence and whether the
testimony of a witness is credible are questions which the fact finder must decide.” Bridgeman
v. Commonwealth, 3 Va. App. 523, 528, 351 S.E.2d 598, 601 (1986).
“In determining whether a defendant is guilty of possession with the intent to distribute,
the trier of fact is entitled to weigh all the circumstances in a given case.” Stanley v.
Commonwealth, 12 Va. App. 867, 869, 407 S.E.2d 13, 14 (1991). “Because direct proof of
intent [to distribute drugs] is often impossible, it must be shown by circumstantial evidence.”
Servis v. Commonwealth, 6 Va. App. 507, 524, 371 S.E.2d 156, 165 (1988). “Circumstantial
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). “However, the Commonwealth
need only exclude reasonable hypotheses of innocence that flow from the evidence, not those
that spring from the imagination of the defendant.” Hamilton v. Commonwealth, 16 Va. App.
751, 755, 433 S.E.2d 27, 29 (1993).
“The quantum of evidence necessary to prove an intent to distribute depends on the facts
and circumstances of each case.” Askew v. Commonwealth, 40 Va. App. 104, 110, 578 S.E.2d
58, 61 (2003).
Among the circumstances that tend to prove an intent to distribute
are “the quantity of the drugs seized, the manner in which they are
packaged, and the presence of . . . equipment related to drug
distribution.” McCain v. Commonwealth, 261 Va. 483, 493, 545
S.E.2d 541, 547 (2001) (citations omitted). Pagers and firearms
are among the equipment that has been recognized as tools of the
drug trade, the possession of which are probative of intent to
distribute. Glasco v. Commonwealth, 26 Va. App. 763, 775, 497
S.E.2d 150, 156 (1998), aff’d, 257 Va. 433, 513 S.E.2d 137
(1999). Furthermore, “the absence of paraphernalia suggestive of
personal use . . . [is] regularly recognized as [a] factor[] indicating
an intent to distribute.” Welshman v. Commonwealth, 28
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Va. App. 20, 37, 502 S.E.2d 122, 130 (1998) (en banc) (citation
omitted).
Id. at 108-09, 578 S.E.2d at 60-61.
“While no single piece of evidence may be sufficient, the ‘combined force of many
concurrent and related circumstances, each insufficient in itself, may lead a reasonable mind
irresistibly to a conclusion.’” Derr v. Commonwealth, 242 Va. 413, 425, 410 S.E.2d 662, 669
(1991) (quoting Stamper v. Commonwealth, 220 Va. 260, 273, 257 S.E.2d 808, 818 (1979)).
Here, the only evidence indicating that the drugs were for personal use was the small
quantity of drugs found in Scott’s possession. However, “[t]he quantity of narcotics possessed is
only one factor to be considered.” Stanley, 12 Va. App. at 869, 407 S.E.2d at 14. “Thus, a
conviction for possession with the intent to distribute may be upheld even though the quantity of
drugs seized is consistent with personal use.” Id. at 869, 407 S.E.2d at 14-15.
There is ample evidence indicating that Scott’s possession of the drugs was inconsistent
with personal use. Officer Watson, an expert in narcotics distribution, testified that, in light of
the “totality of the circumstances,” because Scott was carrying a firearm, his possession of drugs
was inconsistent with personal use. Possession of a firearm, a recognized tool of the drug trade,
is regularly recognized as a factor indicating an intent to distribute. See Dixon v.
Commonwealth, 11 Va. App. 554, 557, 30 S.E.2d 831, 833 (1991). Furthermore, Officer
Watson testified that Scott’s possession was inconsistent with personal use because he possessed
no paraphernalia consistent with personal use of cocaine. We have consistently held that the
absence of paraphernalia consistent with use is another factor indicating that the drugs were
possessed with the intent to distribute. See Welshman, 28 Va. App. at 37, 502 S.E.2d at 130.
Also of significance is the fact that Scott possessed multiple drugs. We have recognized
that the unique, simultaneous possession of a combination of disparate drugs can be indicative of
the possessor’s intent to distribute. Williams v. Commonwealth, 52 Va. App. 194, 662 S.E.2d
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627 (2008); Harper v. Commonwealth, 49 Va. App. 517, 642 S.E.2d 779 (2007). Moreover, the
drugs were packaged individually in baggie corners, making them easier and more profitable to
sell. See Langston v. Commonwealth, 28 Va. App. 276, 504 S.E.2d 380 (1998).
Finally, it is relevant that Scott compounded the incriminating nature of the
circumstances by readily admitting that he smoked marijuana approximately once a week, but
made no such admission regarding the cocaine which he possessed. Scott’s assertion that he uses
one type of drug, contrasted with his silence regarding the use of the other type “undermines
[Scott]’s argument that personal use is the only reasonable hypothesis of possession.” Harper, 49
Va. App. at 522, 642 S.E.2d at 782; see also Shackleford v. Commwealth, 32 Va. App. 307, 528
S.E.2d 123 (2000) (relying on the fact that the defendant “never claimed that he used drugs” as a
factor to be considered in determining whether the defendant had the requisite intent to
distribute).
III. CONCLUSION
We hold that the evidence, when considered as a whole, is sufficient to support the trial
court’s findings that Scott possessed cocaine with the intent to distribute. Accordingly, we will
affirm the judgment of the trial court.
Affirmed.
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Elder, J., dissenting.
I dissent for the reasons set forth in the June 2, 2009 majority memorandum opinion of
the panel. See Scott v. Commonwealth, No. 1482-08-2, 2009 Va. App. LEXIS 251 (Va. Ct.
App. June 2, 2009).
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