Daniel Ellery Willoughby v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: March 13, 2012
• Docket: 0969111
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Felton, Judges Petty and Beales Argued at Chesapeake, Virginia

DANIEL ELLERY WILLOUGHBY MEMORANDUM OPINION * BY v. Record No. 0969-11-1 JUDGE RANDOLPH A. BEALES MARCH 13, 2012 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE Randall D. Smith, Judge

Kimberly E. Karle, Assistant Public Defender (Office of the Public Defender, on brief), for appellant.

Katherine Quinlan Adelfio, Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.

Daniel Ellery Willoughby (appellant) was convicted by the trial court of possession of

cocaine with the intent to distribute, in violation of Code § 18.2-248. During a traffic stop, the

police observed this cocaine sitting on the back floorboard of a vehicle that appellant was driving.

On appeal, appellant challenges the sufficiency of the evidence proving (1) that he had guilty

knowledge of the cocaine’s nature and character and (2) that he intended to distribute the cocaine.

For the following reasons, we affirm.

I. BACKGROUND

On the night of January 14, 2010, at approximately 10:25 p.m., Detective Banks observed a

vehicle pull into the parking lot of a Chesapeake apartment complex known for drug transactions.

Appellant, who was the driver of the vehicle, parked the vehicle in a space in front of one of the

apartments. Marquei Lewis, appellant’s passenger, exited the vehicle and walked into the

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. breezeway that led to the apartment. No more than five minutes later, Lewis ran back to the vehicle,

appellant started the engine, and they drove away. Based on his training, experience, and

knowledge of this location, Detective Banks’s suspicions were aroused. “I know that drug deals are

brief encounters,” Detective Banks testified at appellant’s trial. “They don’t last very long.”

When appellant disregarded a stop sign at the exit of the apartment complex, Detective

Banks conveyed what he had observed to Detectives Croyle and Huttenbrauck, who stopped the

vehicle for the traffic violation. Appellant denied that he had disregarded a stop sign and gave

conflicting accounts for the brief trip to the apartment complex.1 Appellant also voluntarily

produced from his pocket a knotted plastic baggie that, according to Detective Huttenbrauck,

“looked like a corner baggie” that “would normally have drugs in it.” Subsequent laboratory tests

confirmed that this knotted plastic baggie contained cocaine residue.

In addition, Detective Croyle testified that a plastic bag could be seen inside the vehicle “in

plain view” when another officer shined a flashlight toward the back seat of the vehicle.

Detective Croyle testified that the plastic bag was not “tucked underneath the driver’s seat or the

back seat” of the vehicle, but was instead positioned on the floorboard directly behind the

driver’s seat. Inside this plastic bag were eleven smaller plastic baggies, each containing a solid,

off-white substance. Subsequent laboratory tests on five of these plastic baggies confirmed that

this substance was crack cocaine.

Furthermore, Detective Croyle searched Lewis during the traffic stop. Lewis was carrying

two cell phones and a total of $229 in cash – in denominations of one $50 bill, seven $20 bills, two

$10 bills, three $5 bills, and four $1 bills.

1 Appellant first told Detective Huttenbrauck that he drove there to pick up Lewis. However, when the detective informed appellant that he was observed driving into the apartment complex with Lewis already inside the vehicle as his passenger, appellant then explained that he had driven Lewis there so that Lewis could visit his girlfriend. -2- Detective Davis, the Commonwealth’s expert in the distribution of narcotics, opined that the

cocaine recovered from the floorboard of the vehicle was not possessed for personal use. Although

Detective Davis acknowledged that “not a lot of crack cocaine” was recovered from the plastic bag

in the vehicle, he testified that he based his opinion on several other factors. Detective Davis noted

that appellant and Lewis had just left an apartment complex known for drug transactions, that they

had engaged in behavior at that location that was consistent with a brief drug transaction, that no

smoking or ingestion devices were found in the vehicle or at the scene of the traffic stop, and that

appellant denied being a drug user. Detective Davis also explained the significance of Lewis’s two

cell phones and $229 in cash, testifying that drug dealers tend to carry large amounts of cash and

multiple cell phones (one for personal use and another for drug transactions). Detective Davis

testified that drug purchasers do not tend to carry a lot of extra cash, for fear of being robbed by the

drug dealer. Moreover, Detective Davis also testified that the packaging of the cocaine was a

notable factor here. According to Detective Davis, the crack cocaine here would sell for $60 in a

single transaction – but that dividing the crack cocaine into eleven smaller packages would produce

$20 per sale, for a total gross of $220.

At the conclusion of all the evidence and oral argument, the trial court found appellant

guilty of possession of cocaine with intent to distribute. The trial court referenced several

circumstances, including the presence of the plastic bag with cocaine inside that was sitting “in

plain view on the floorboard of the vehicle,” appellant’s “untruthful statements” to Detective

Huttenbrauck, “the fact that there was cash and there were cell phones on the passenger,”

appellant’s behavior, “the fact that [appellant] stated he doesn’t use drugs,” and “all the other

circumstances added together and considering them in their totality establish the defendant’s guilt

and eliminate a reasonable hypothesis of innocence” in this case.

-3- II. ANALYSIS

When considering the sufficiency of the evidence on appeal, “a reviewing court does not

‘ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable

doubt.’” Crowder v. Commonwealth, 41 Va. App. 658, 663, 588 S.E.2d 384, 387 (2003) (quoting

Jackson v. Virginia, 443 U.S. 307, 318-19 (1979)). “Viewing the evidence in the light most

favorable to the Commonwealth, as we must since it was the prevailing party in the trial court,”

Riner v. Commonwealth, 268 Va. 296, 330, 601 S.E.2d 555, 574 (2004), “[w]e must instead ask

whether ‘any rational trier of fact could have found the essential elements of the crime beyond a

reasonable doubt,’” Crowder, 41 Va. App. at 663, 588 S.E.2d at 387 (quoting Kelly v.

Commonwealth, 41 Va. App. 250, 257, 584 S.E.2d 444, 447 (2003) (en banc)). See also Maxwell

v. Commonwealth, 275 Va. 437, 442, 657 S.E.2d 499, 502 (2008). “This familiar standard gives

full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh

the evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Jackson, 443

U.S. at 319.

A. CONSTRUCTIVE POSSESSION OF THE COCAINE WITH GUILTY KNOWLEDGE

To prove a defendant’s possession of an illegal drug, the evidence must “‘establish that the

defendant intentionally and consciously possessed it with knowledge of its nature and character.’”

Young v. Commonwealth, 275 Va. 587, 591, 659 S.E.2d 308, 310 (2008) (quoting Burton v.

Commonwealth, 215 Va. 711, 713, 213 S.E.2d 757, 758 (1975)). “[P]ossession alone, without

more, is insufficient to support an inference of guilty knowledge.” Id. at 592, 659 S.E.2d at 311.

The Supreme Court has explained that the guilty knowledge required to support a conviction for

possessing an illegal drug

may be shown by evidence of the acts, statements or conduct of the accused. Garland v. Commonwealth, 225 Va. 182, 184, 300 S.E.2d 783, 784 (1983). Other circumstantial evidence may also support a finding of a defendant’s knowledge of the nature and character of the -4- substance in his possession, such as the drug’s distinctive odor or appearance, or statements or conduct of others in his presence that would tend to identify it.

Young, 275 Va. at 713, 213 S.E.2d at 758. Furthermore, “the possession need not always be

exclusive. The defendant may share it with one or more.”2 Ritter v. Commonwealth, 210 Va. 732,

741, 173 S.E.2d 799, 806 (1970).

Appellant argues that the evidence was insufficient to prove beyond a reasonable doubt that

he had guilty knowledge of the cocaine recovered from the floorboard of the vehicle. Appellant

contends that this case is controlled by this Court’s decision in Coward v. Commonwealth, 48

Va. App. 653, 633 S.E.2d 752 (2006), where the evidence of Coward’s guilty knowledge of the

cocaine at issue was insufficient as a matter of law. However, as we recently explained in Ervin v.

Commonwealth, 57 Va. App. 495, 704 S.E.2d 135 (2011) (en banc), the decision in Coward simply

reflects the settled principle that occupancy of a vehicle where illegal drugs are found and proximity

to those drugs, “although factors to be considered among the totality of the circumstances, are

insufficient standing alone to prove a defendant’s guilty knowledge of illegal drugs.” Id. at 506,

704 S.E.2d at 140. In other words, the evidence at Coward’s trial was insufficient to prove guilty

knowledge because it “did not establish any other facts or circumstances necessary to draw the legal

conclusion that Coward was aware of the presence and character of the cocaine.” Coward, 48

Va. App. at 659, 633 S.E.2d at 754; see Ervin, 57 Va. App. at 506, 704 S.E.2d at 140.

The decision in Coward is not controlling on the facts of this case because the evidence here

pointed to more factors than appellant’s mere occupancy of a vehicle where illegal drugs were

found and his proximity to those illegal drugs. In Coward, the evidence did not foreclose the

2 Consequently, case law recognizes that appellant and Lewis were able to exercise joint possession over the cocaine, provided that “‘each ha[d] the power of control and intend[ed] to exercise control jointly.’” Smallwood v. Commonwealth, 278 Va. 625, 631, 688 S.E.2d 154, 157 (2009) (quoting Burnette v. Commonwealth, 194 Va. 785, 792, 75 S.E.2d 482, 487 (1953)). -5- hypothesis of innocence that Coward was simply unaware of the illegal drugs in that case. First, the

vehicle did not belong to Coward, who was a mere passenger. Second, the driver of the vehicle in

Coward told the police that the vehicle belonged to his own mother and that he had been in

possession of the vehicle all night. Third, there was no evidence of where the vehicle in Coward

had been prior to the traffic stop. Fourth, Coward made no statements to the police that could have

incriminated himself. Coward, 48 Va. App. at 655-56, 633 S.E.2d at 752-53. Coward is

distinguishable because additional circumstances establishing appellant’s guilty knowledge of the

cocaine are present in this case that simply were not present in Coward.

Here, appellant and Lewis briefly went to an apartment complex known for drug

transactions. While appellant remained in the vehicle, Lewis headed in the direction of an

apartment and then returned to the vehicle in a hurry mere moments later. Detective Banks – who

was conducting surveillance of the apartment complex precisely because it was known for drug

transactions – testified that this behavior was consistent with most drug transactions, which tend to

be brief in duration. Immediately upon exiting the parking lot of the apartment complex, appellant

was stopped by Detectives Croyle and Huttenbrauck for disregarding a stop sign. During this traffic

stop, appellant gave conflicting accounts to Detective Huttenbrauck about his and Lewis’s presence

at the apartment complex, which the trial court specifically found were “untruthful” statements by

appellant. In addition, it is significant that Lewis possessed two cell phones and $229, given the

Commonwealth’s expert testimony that drug dealers tend to carry multiple cell phones and a rather

large amount of cash. Moreover, appellant produced from his pocket a knotted plastic baggie that

contained cocaine residue. Thus, appellant was in actual possession of cocaine.

All of these circumstances are considered in addition to the fact that a plastic bag containing

eleven knotted plastic bags with crack cocaine inside was observed in plain view on the floorboard

of the vehicle – directly behind the driver’s seat. Based on the totality of these circumstances, a

-6- rational factfinder certainly could have concluded that appellant constructively possessed the

cocaine that was sitting on the floorboard of the vehicle -- with knowledge of the cocaine’s nature

and character.

B. INTENT TO DISTRIBUTE

In order to support a conviction for possession of illegal drugs with intent to distribute under

Code § 18.2-248, the evidence must prove beyond a reasonable doubt that the defendant possessed

“the controlled substance contemporaneously with his intention to distribute that substance.”

Christian v. Commonwealth, 33 Va. App. 704, 716, 536 S.E.2d 477, 483 (2000) (en banc). This

Court has explained:

“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). Such evidence may include the quantity of drugs and cash possessed and whether appellant used drugs. See Poindexter v. Commonwealth, 16 Va. App. 730, 734-35, 432 S.E.2d 527, 530 (1993). Possession of a large sum of money, especially in small denominations, and the absence of any paraphernalia suggestive of personal use, also are regularly recognized as factors indicating an intent to distribute. See Colbert v. Commonwealth, 219 Va. 1, 4, 244 S.E.2d 748, 748-49 (1978).

Welshman v. Commonwealth, 28 Va. App. 20, 37, 502 S.E.2d 122, 130 (1998) (en banc). “Expert

testimony, usually that of a police officer familiar with narcotics, is routinely offered to prove the

significance of the weight and packaging of drugs regarding whether it is for personal use.” Askew

v. Commonwealth, 40 Va. App. 104, 109, 578 S.E.2d 58, 61 (2003).

Appellant argues that the Commonwealth’s evidence failed to prove beyond a reasonable

doubt that he intended to distribute the cocaine recovered from the vehicle that he was driving.

Noting Detective Davis’s acknowledgement that “not a lot of crack cocaine” was in evidence here,

appellant relies heavily on the decision in Dukes v. Commonwealth, 227 Va. 119, 313 S.E.2d 382

(1984). In Dukes, the Supreme Court held that “possession of a small quantity creates an inference

-7- that the drug was for the personal use of the defendant.” Id. at 122, 313 S.E.2d at 383. However,

the Supreme Court also explained that such an inference may be overcome by other circumstantial

evidence, even though this inference of personal use was not actually overcome in Dukes. Id. at

122-23, 313 S.E.2d at 383-84.

In this case, “the accumulation of various facts and inferences, each mounting upon the

others,” proved beyond a reasonable doubt that appellant intended to distribute the cocaine that was

recovered from the vehicle. Ervin, 57 Va. App. at 505, 704 S.E.2d at 140. The cocaine here was

packaged for distribution, as Detective Davis, the Commonwealth’s expert witness on the

distribution of illegal drugs, explained. Detective Davis testified that the cocaine here could have

sold for $60 in a single transaction, but instead was divided into eleven smaller packages that could

have sold for $20 each – for a total of $220 – thereby maximizing profit. Detective Davis’s

explanation of the significance of how the cocaine here was packaged is a factor setting this case

apart from Dukes, where “[t]he mode of packaging” of the drugs was “as consistent with possession

for personal use” as it was with possession for distribution purposes. Dukes, 227 Va. at 123, 313

S.E.2d at 384.

The packaging of cocaine was not the only circumstance supporting the trial court’s

conclusion that appellant intended to distribute these illegal drugs. Additional circumstances

present in the record here sufficiently “‘preclude the inference that [the cocaine] was purchased in

the packaged form for personal use rather than being held in that fashion for distribution.’” Servis,

6 Va. App. at 524, 371 S.E.2d at 165 (quoting Monroe v. Commonwealth, 4 Va. App. 154, 156, 355

S.E.2d 336, 337 (1987)). Appellant exercised dominion and control over the cocaine that was

observed inside the vehicle, yet no smoking or ingestion devices were found and appellant denied

being a drug user. Furthermore, appellant had just driven Lewis to an apartment complex known

for drug transactions, and Detective Banks had observed behavior suggesting that Lewis engaged in

-8- a drug transaction at one of the apartments. Although appellant contends that he and Lewis could

have driven to the apartment complex for an innocent purpose, the trial court’s finding that appellant

gave conflicting, “untruthful” accounts for why they went to the apartment is further evidence

refuting this hypothesis of innocence.3

In addition, Lewis possessed two cell phones and $229 in cash, which Detective Davis

testified were two circumstances consistent with drug distribution. Although appellant claims that

$229 is not a large amount of cash, we note that Lewis was carrying seven $20 bills – and Detective

Davis testified that the individual packages of crack cocaine found inside the plastic bag recovered

from the vehicle could sell for $20 apiece. Thus, the fact that Lewis possessed two cell phones and

$229 in cash provided still more evidence supporting the trial court’s finding that the cocaine

recovered from the vehicle was possessed with intent to distribute. Furthermore, as noted supra, the

Commonwealth need not prove that only appellant possessed the cocaine with intent to distribute as

he and Lewis could, of course, jointly possess the cocaine under this fact scenario with a shared

intent to distribute the drugs. See Dunn v. Commonwealth, 52 Va. App. 611, 621, 665 S.E.2d 868,

872 (2008) (en banc) (holding that the defendant aided and abetted the possession of illegal drugs

with intent to distribute).

Based on all of these circumstances, which are viewed in the light most favorable to the

Commonwealth (as the prevailing party below), a rational factfinder certainly could conclude that

3 Appellant’s witness at trial, Walter Stinedurf, testified that appellant was a temporary laborer for Stinedurf’s contracting company and that appellant would often provide transportation for other laborers (although Stinedurf could not provide any specific dates for when appellant transported fellow laborers). Appellant claimed at trial that a fellow temporary laborer must have left the cocaine in the vehicle without appellant noticing. Of course, however, there is considerable case law finding that it is highly improbable that an individual is likely to leave something of value, like drugs, behind when exiting someone else’s car. See, e.g., Powell v. Commonwealth, 27 Va. App. 173, 178, 497 S.E.2d 899, 901 (1998). Regardless, on appeal, we cannot conclude that the trial court’s rejection of appellant’s argued hypothesis of innocence as simply unreasonable was plainly wrong. See Emerson v. Commonwealth, 43 Va. App. 263, 277, 597 S.E.2d 242, 249 (2004). -9- appellant and Lewis shared an intent to distribute the cocaine that was recovered from the vehicle,

which appellant was driving. See Dunn, 52 Va. App. at 621, 665 S.E.2d at 872. Therefore, the trial

court did not err when it found that appellant possessed this cocaine with intent to distribute.

III. CONCLUSION

The totality of the circumstances in this case supported the trial court’s conclusion that

appellant had guilty knowledge of the cocaine recovered from the vehicle he was driving and that

appellant intended to distribute this cocaine. Thus, we certainly cannot say that no rational

factfinder could have come to the same conclusion that the trial court reached here. Accordingly,

for the foregoing reasons, we affirm appellant’s conviction for possession of cocaine with intent to

distribute.

Affirmed.

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