Holloway v. Commonwealth

705 S.E.2d 510, 57 Va. App. 658, 2011 Va. App. LEXIS 94
CourtCourt of Appeals of Virginia
DecidedFebruary 15, 2011
Docket0828081
StatusPublished
Cited by95 cases

This text of 705 S.E.2d 510 (Holloway v. Commonwealth) is published on Counsel Stack Legal Research, covering Court of Appeals of Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Holloway v. Commonwealth, 705 S.E.2d 510, 57 Va. App. 658, 2011 Va. App. LEXIS 94 (Va. Ct. App. 2011).

Opinions

UPON A REHEARING EN BANC

FRANK, Judge.

Kevin L. Holloway (“appellant”) was convicted, in a bench trial, of possession with intent to distribute an imitation controlled substance, in violation of Code § 18.2-248(G), and assault and battery of a law enforcement officer, in violation of Code § 18.2-57. On a rehearing, a divided panel reversed the possession with the intent to distribute conviction, but affirmed the conviction for assault and battery of a law enforcement officer.1 See Holloway v. Commonwealth, 56 Va.App. 667, 696 S.E.2d 247 (2010).

We granted the Commonwealth’s petition for rehearing en banc and stayed the mandate of the panel’s decision. On rehearing en banc, we now lift the stay and conclude the evidence was sufficient to prove an intent to distribute. We affirm appellant’s conviction on that charge.

BACKGROUND

On the evening of August 19, 2006, Portsmouth police responded to a residence and observed appellant standing on [662]*662the porch. They also observed another male standing in front of the porch. As the police pulled up to the residence, the second male began walking to the street. He was not apprehended.

The police observed appellant making a “pitching motion” with his left hand toward the front door. The officer was unable to determine what appellant threw. Appellant was ordered to the ground. As one officer advanced toward the house, he observed a plastic bag (“corner baggie”) resting on the porch, in the area of appellant’s “pitching motion.”

Approximately fifteen to thirty seconds elapsed between the time appellant moved his arm and Officer Riddle’s observation of the corner baggie. The corner baggie contained three smaller corner baggies, each holding what appeared to be $20 worth of crack cocaine. Testing later revealed the substance was not crack cocaine, but an imitation substance.

During the officers’ interaction with appellant, no one else entered the porch area. The officers did not find any scales, packaging materials, or ingestion devices, either around the porch or on appellant’s person. Officer Riddle testified that appellant did not have any money on his person, or if he did, it was “a minimal amount, not worth recovering.” Appellant was arrested that evening.

At trial, Detective K. Gavin qualified, without objection, as an expert in the use, packaging, and distribution of narcotics. He testified that possession of three individually wrapped rocks of an imitation controlled substance, without possession of a smoking device, is inconsistent with personal use. He stated, “[Tjhere is no reason to possess an imitation controlled substance unless [an individual was] either ripped off or ... possessed it to distribute.” Detective Gavin dismissed the possibility that an individual would unknowingly purchase crack cocaine in three individually wrapped baggies apparently worth $20 each, because “[i]t is not cost effective for a user to purchase three twenty-dollar rocks individually, packaged that way, for sixty dollars. They could get a lot more crack if they purchase[d] it in a larger quantity.” Detective Gavin [663]*663opined that a regular cocaine user would know that purchasing three twenty-dollar packages of crack cocaine was not cost effective and that a “new cocaine user ... wouldn’t have been purchasing three rocks at the same time. That’s a lot more than a new cocaine user would attempt.” However, when asked whether “all cocaine users, everyone who buys crack, shops around for the best deal, like Wal-Mart [sic],” Detective Gavin conceded that he could confirm only “that is what ... most ... users do.”

Detective Gavin acknowledged that an individual may not carry a crack pipe or other ingestion device on their person if they bought the crack cocaine for later use; however, he stated that “normal user[s]” “maintain a stem or crack pipe on their person when they purchase crack cocaine.”

The trial court found appellant guilty of possession with the intent to distribute an imitation controlled substance. This appeal follows.

ANALYSIS

A. Standard of Appellate Review

On appeal, “we review the evidence in the ‘light most favorable’ to the Commonwealth.” Pryor v. Commonwealth, 48 Va.App. 1, 4, 628 S.E.2d 47, 48 (2006) (quoting Commonwealth v. Hudson, 265 Va. 505, 514, 578 S.E.2d 781, 786 (2003)). “Viewing the record through this evidentiary prism requires us to ‘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 to be drawn therefrom.’ ” Cooper v. Commonwealth, 54 Va.App. 558, 562, 680 S.E.2d 361, 363 (2009) (quoting Parks v. Commonwealth, 221 Va. 492, 498, 270 S.E.2d 755, 759 (1980) (emphasis omitted)).

We examine a trial court’s factfinding “with the highest degree of appellate deference.” Thomas v. Commonwealth, 48 Va.App. 605, 608, 633 S.E.2d 229, 231 (2006). An appellate court does not “ask itself whether it believes that the evidence [664]*664at the trial established guilt beyond a reasonable doubt.” Williams v. Commonwealth, 278 Va. 190, 193, 677 S.E.2d 280, 282 (2009) (emphasis in original) (quoting Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979)). Instead, the only “relevant question is, after reviewing the evidence in the light most favorable to the prosecution, whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Sullivan v. Commonwealth, 280 Va. 672, 676, 701 S.E.2d 61, 63 (2010) (citing Jackson, 443 U.S. at 319, 99 S.Ct. at 2789). We are “not permitted to reweigh the evidence,” Nusbaum v. Berlin, 273 Va. 385, 408, 641 S.E.2d 494, 507 (2007), because appellate courts have no authority “to preside de novo over a second trial,” Haskins v. Commonwealth, 44 Va.App. 1, 11, 602 S.E.2d 402, 407 (2004).

This deferential standard “applies not only to the historical facts themselves, but the inferences from those facts as well.” Clanton v. Commonwealth, 53 Va.App. 561, 566, 673 S.E.2d 904, 907 (2009) (en banc) (citation omitted); see also Sullivan, 280 Va. at 676, 701 S.E.2d at 63-64. Thus, a factfinder may “draw reasonable inferences from basic facts to ultimate facts,” Haskins, 44 Va.App. at 10, 602 S.E.2d at 406 (citation omitted), unless doing so would push “into the realm of non sequitur,” Thomas, 48 Va.App. at 608, 633 S.E.2d at 231 (citation omitted).

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Bluebook (online)
705 S.E.2d 510, 57 Va. App. 658, 2011 Va. App. LEXIS 94, Counsel Stack Legal Research, https://law.counselstack.com/opinion/holloway-v-commonwealth-vactapp-2011.