COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Coleman and Elder Argued by teleconference
ERIC BLANE LEE MEMORANDUM OPINION * BY v. Record No. 2566-97-3 CHIEF JUDGE JOHANNA L. FITZPATRICK NOVEMBER 10, 1998 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG Richard S. Miller, Judge Joseph A. Sanzone for appellant.
Marla Graff Decker, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.
Eric Blane Lee (appellant) was convicted in a bench trial of
possession with intent to distribute cocaine in violation of Code
§ 18.2-248 and possession of a firearm while in possession of
cocaine in violation of Code § 18.2-308.4(A). On appeal he
contends the evidence was insufficient to convict him of
possession with intent to distribute cocaine. We find no error
and affirm.
I.
Under familiar principles of appellate review, we examine
the evidence in the light most favorable to the Commonwealth,
granting to it all reasonable inferences fairly deducible
therefrom. See Juares v. Commonwealth, 26 Va. App. 154, 156, 493
S.E.2d 677, 678 (1997). The evidence presented at trial * Pursuant to Code § 17-116.010 this opinion is not designated for publication. established that on January 11, 1997, the Lynchburg Police
Department executed a search warrant at 607 Madison Street in
Lynchburg. Officer J.T. Lloyd was one of the first officers
present at the scene. Upon entering the residence, Lloyd went
upstairs and into a bedroom where he found appellant and a woman
named Sherry Wright sitting on the bed with a "glass plate"
between the two. As Lloyd entered the room, appellant and Wright
rolled off the bed onto the floor. The two individuals were then
secured by officers. Appellant was advised by Officer J.L. Hise that the police
had a warrant to search the residence for cocaine. As Hise
grabbed appellant's left hand to place him in handcuffs,
appellant told the officer, "I have an automatic in my back
pocket." A small handgun was removed from appellant's rear
pocket, and a digital pager was found on his waistband.
Appellant was taken downstairs and detained while the police
searched the house. The glass plate, which had been on the bed
when officers first entered the bedroom, was on the floor. "It
had residue on it . . . and there were several chunks of an
off-white substance lying on the floor." Police seized
approximately 6.75 grams of cocaine in plain view on the floor
and on a dresser. The following items were also found in the
bedroom: a box of plastic sandwich bags, digital scales "with
white residue" on them, a small dormitory-size refrigerator, and
a box of baking soda. In the freezer of the refrigerator, police
- 2 - found "a chunk of off-white substance . . . in a shot glass
submerged in water."
Appellant was advised of his Miranda rights and he gave a
statement to the police. He stated that there was some money "in
a blue bag in a window in the upstairs bedroom," and upon a
search of the bedroom, police found $723.04 in cash where
appellant said it would be located. Appellant also admitted that
a .22 caliber rifle was in the house on the main level. When
questioned about the narcotics, appellant told the officers that
when the police entered the bedroom he was getting ready to smoke
some of the cocaine. He stated that the drugs on the glass plate
were all he had. Ms. Wright, the woman sitting on the bed with appellant when
police entered the room, also made a statement to Officer Hise.
She indicated that her home address was 607 Madison Street, the
same address as appellant's. She also stated that she was
cutting up some cocaine when the police entered the house and
that she was planning on selling it.
At trial, Investigator Wayne Duff was qualified as an expert
in the field of narcotics distribution in the City of Lynchburg.
Duff testified that indicia of distribution include the
following: possession of a firearm; use of a pager; presence of
plastic sandwich bags, digital scales, and baking soda; and large
amounts of hidden cash. Duff also stated that 6.75 grams of
cocaine was an amount more consistent with distribution because
- 3 - "[i]t's very rare to find almost a quarter of an ounce of crack
cocaine on a smoker [user]."
At the conclusion of the Commonwealth's case, appellant
moved to strike the evidence, which was denied by the trial
court. Appellant presented no further evidence and following
arguments by both parties the trial court found appellant guilty
of both charges.
II. On appeal, "[w]e may not disturb the trial court's judgment
unless it is `plainly wrong or without evidence to support it.'"
Barlow v. Commonwealth, 26 Va. App. 421, 429, 494 S.E.2d 901,
904 (1998) (citation omitted). In addition, "the inferences to
be drawn from proven facts are matters solely for the fact
finder's determination." Marshall v. Commonwealth, 26 Va. App.
627, 633, 496 S.E.2d 120, 123 (1998).
Appellant contends that the evidence was insufficient to
establish the required intent to distribute narcotics. He argues
that other than the amount of cocaine he was preparing to smoke
when the police officers arrived, the remaining cocaine and drug
paraphernalia found during the search of his residence belonged
to Wright. Accordingly, appellant argues, there was not
sufficient evidence to support his conviction. We disagree.
It is well established that "[b]ecause direct proof of
intent is often impossible, it must be shown by circumstantial
evidence. Circumstantial proof of a defendant's intent includes
- 4 - the quantity of the drug discovered, the packaging of the drugs,
and the presence or absence of drug paraphernalia." White v.
Commonwealth, 25 Va. App. 662, 668, 492 S.E.2d 451, 454 (1997)
(en banc) (citing Servis v. Commonwealth, 6 Va. App. 507, 524,
371 S.E.2d 156, 165 (1988)).
In the instant case, many recognized indicia of intent to
distribute were tied to appellant. The police seized from
appellant's residence approximately 6.75 grams of cocaine, an
amount which Investigator Duff testified was inconsistent with an
individual's personal use. Plastic sandwich bags and digital
scales were also found. Empty plastic sandwich bags and the
possession of an electronic scale can provide a sufficient basis
to support an inference of distribution of narcotics. See Shears
v. Commonwealth, 23 Va. App. 394, 402, 477 S.E.2d 309, 313
(1996); White, 25 Va. App. at 668, 492 S.E.2d at 454.
Additionally, the police found a digital pager and a handgun
on appellant, both of which have been routinely classified as
tools of the drug trade. See White, 25 Va. App. at 668, 492
S.E.2d at 454 (citing Wilkins v. Commonwealth, 18 Va. App. 293,
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COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Coleman and Elder Argued by teleconference
ERIC BLANE LEE MEMORANDUM OPINION * BY v. Record No. 2566-97-3 CHIEF JUDGE JOHANNA L. FITZPATRICK NOVEMBER 10, 1998 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG Richard S. Miller, Judge Joseph A. Sanzone for appellant.
Marla Graff Decker, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.
Eric Blane Lee (appellant) was convicted in a bench trial of
possession with intent to distribute cocaine in violation of Code
§ 18.2-248 and possession of a firearm while in possession of
cocaine in violation of Code § 18.2-308.4(A). On appeal he
contends the evidence was insufficient to convict him of
possession with intent to distribute cocaine. We find no error
and affirm.
I.
Under familiar principles of appellate review, we examine
the evidence in the light most favorable to the Commonwealth,
granting to it all reasonable inferences fairly deducible
therefrom. See Juares v. Commonwealth, 26 Va. App. 154, 156, 493
S.E.2d 677, 678 (1997). The evidence presented at trial * Pursuant to Code § 17-116.010 this opinion is not designated for publication. established that on January 11, 1997, the Lynchburg Police
Department executed a search warrant at 607 Madison Street in
Lynchburg. Officer J.T. Lloyd was one of the first officers
present at the scene. Upon entering the residence, Lloyd went
upstairs and into a bedroom where he found appellant and a woman
named Sherry Wright sitting on the bed with a "glass plate"
between the two. As Lloyd entered the room, appellant and Wright
rolled off the bed onto the floor. The two individuals were then
secured by officers. Appellant was advised by Officer J.L. Hise that the police
had a warrant to search the residence for cocaine. As Hise
grabbed appellant's left hand to place him in handcuffs,
appellant told the officer, "I have an automatic in my back
pocket." A small handgun was removed from appellant's rear
pocket, and a digital pager was found on his waistband.
Appellant was taken downstairs and detained while the police
searched the house. The glass plate, which had been on the bed
when officers first entered the bedroom, was on the floor. "It
had residue on it . . . and there were several chunks of an
off-white substance lying on the floor." Police seized
approximately 6.75 grams of cocaine in plain view on the floor
and on a dresser. The following items were also found in the
bedroom: a box of plastic sandwich bags, digital scales "with
white residue" on them, a small dormitory-size refrigerator, and
a box of baking soda. In the freezer of the refrigerator, police
- 2 - found "a chunk of off-white substance . . . in a shot glass
submerged in water."
Appellant was advised of his Miranda rights and he gave a
statement to the police. He stated that there was some money "in
a blue bag in a window in the upstairs bedroom," and upon a
search of the bedroom, police found $723.04 in cash where
appellant said it would be located. Appellant also admitted that
a .22 caliber rifle was in the house on the main level. When
questioned about the narcotics, appellant told the officers that
when the police entered the bedroom he was getting ready to smoke
some of the cocaine. He stated that the drugs on the glass plate
were all he had. Ms. Wright, the woman sitting on the bed with appellant when
police entered the room, also made a statement to Officer Hise.
She indicated that her home address was 607 Madison Street, the
same address as appellant's. She also stated that she was
cutting up some cocaine when the police entered the house and
that she was planning on selling it.
At trial, Investigator Wayne Duff was qualified as an expert
in the field of narcotics distribution in the City of Lynchburg.
Duff testified that indicia of distribution include the
following: possession of a firearm; use of a pager; presence of
plastic sandwich bags, digital scales, and baking soda; and large
amounts of hidden cash. Duff also stated that 6.75 grams of
cocaine was an amount more consistent with distribution because
- 3 - "[i]t's very rare to find almost a quarter of an ounce of crack
cocaine on a smoker [user]."
At the conclusion of the Commonwealth's case, appellant
moved to strike the evidence, which was denied by the trial
court. Appellant presented no further evidence and following
arguments by both parties the trial court found appellant guilty
of both charges.
II. On appeal, "[w]e may not disturb the trial court's judgment
unless it is `plainly wrong or without evidence to support it.'"
Barlow v. Commonwealth, 26 Va. App. 421, 429, 494 S.E.2d 901,
904 (1998) (citation omitted). In addition, "the inferences to
be drawn from proven facts are matters solely for the fact
finder's determination." Marshall v. Commonwealth, 26 Va. App.
627, 633, 496 S.E.2d 120, 123 (1998).
Appellant contends that the evidence was insufficient to
establish the required intent to distribute narcotics. He argues
that other than the amount of cocaine he was preparing to smoke
when the police officers arrived, the remaining cocaine and drug
paraphernalia found during the search of his residence belonged
to Wright. Accordingly, appellant argues, there was not
sufficient evidence to support his conviction. We disagree.
It is well established that "[b]ecause direct proof of
intent is often impossible, it must be shown by circumstantial
evidence. Circumstantial proof of a defendant's intent includes
- 4 - the quantity of the drug discovered, the packaging of the drugs,
and the presence or absence of drug paraphernalia." White v.
Commonwealth, 25 Va. App. 662, 668, 492 S.E.2d 451, 454 (1997)
(en banc) (citing Servis v. Commonwealth, 6 Va. App. 507, 524,
371 S.E.2d 156, 165 (1988)).
In the instant case, many recognized indicia of intent to
distribute were tied to appellant. The police seized from
appellant's residence approximately 6.75 grams of cocaine, an
amount which Investigator Duff testified was inconsistent with an
individual's personal use. Plastic sandwich bags and digital
scales were also found. Empty plastic sandwich bags and the
possession of an electronic scale can provide a sufficient basis
to support an inference of distribution of narcotics. See Shears
v. Commonwealth, 23 Va. App. 394, 402, 477 S.E.2d 309, 313
(1996); White, 25 Va. App. at 668, 492 S.E.2d at 454.
Additionally, the police found a digital pager and a handgun
on appellant, both of which have been routinely classified as
tools of the drug trade. See White, 25 Va. App. at 668, 492
S.E.2d at 454 (citing Wilkins v. Commonwealth, 18 Va. App. 293,
296, 443 S.E.2d 440, 442 (1994)); Glasco v. Commonwealth, 26 Va.
App. 763, 775, 497 S.E.2d 150, 156 (1998) (citing Dixon v.
Commonwealth, 11 Va. App. 554, 557, 399 S.E.2d 831, 833 (1991)).
Evidence of large amounts of cash is some evidence of
involvement in drug transactions. See Johnson v. Commonwealth,
12 Va. App. 150, 153, 402 S.E.2d 502, 504 (1991). In this case,
- 5 - appellant knew of the presence of cash in the house and told the
police officers exactly where it was located. In view of
appellant's possession of cocaine, the drug paraphernalia, and
the large sum of money, we find the record sufficient to support
the trial court's finding that appellant possessed cocaine with
the intent to distribute.
Nevertheless, appellant contends that Wright's statement to
police that she owned and intended to sell the cocaine was
sufficient evidence to exonerate appellant of the distribution
charge. This argument is without merit. In her statement Wright
admits to her own culpability; she does not exonerate appellant
nor does she address his involvement in the distribution of
cocaine in their home. 1 The trial court, as the trier of fact,
was free to reject any or all parts of Wright's statements to the
extent they were related to appellant's case. See Woodard v.
1 Wright did not testify in appellant's trial and her statements came to light through the following testimony:
Q. Investigator Hise, you also arrested Ms. Wright that day? A. Yes, sir. Q. What address did she give you? A. I believe she gave me the same address. Yes, sir. She gave me the same address, 607 Madison Street. Q. And I believe she made a statement, didn't you say she was cutting up the cocaine when the police arrived? A. Yes, sir. I believe I testified to that earlier. Q. And she said that she was planning on selling some of it? A. Yes, sir.
- 6 - Commonwealth, 27 Va. App. 405, 408-09, 499 S.E.2d 557, 559
(1998).
Additionally, assuming Ms. Wright's admission of ownership
of the drugs was considered by the trial court, it is well
settled that possession need not be exclusive. It can also be
joint. See Hamilton v. Commonwealth, 16 Va. App. 751, 755, 433
S.E.2d 27, 29 (1993) ("Possession need not be exclusive and, in
fact, may be joint possession with others."). Finding no error,
we affirm. Affirmed.
- 7 -