COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Elder and Humphreys Argued at Alexandria, Virginia
JUSTIN THOMAS BROOKS MEMORANDUM OPINION * BY v. Record No. 0811-02-4 JUDGE LARRY G. ELDER MARCH 4, 2003 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF STAFFORD COUNTY J. Peyton Farmer, Judge Designate
Patricia Kelly (Woodbridge, Ventura & Kelly, P.C., on brief), for appellant.
Jennifer R. Franklin, Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.
Justin Thomas Brooks (appellant) appeals from his jury
trial conviction for possession of cocaine with intent to
distribute. On appeal, he contends the evidence was
insufficient to prove both that he possessed the cocaine and
that he did so with the requisite intent. We hold the evidence
was sufficient to support the conviction, and we affirm.
On appellate review, we examine the evidence in the light
most favorable to the Commonwealth, and we may not disturb the
jury's verdict unless it is plainly wrong or without evidence to
support it. Traverso v. Commonwealth, 6 Va. App. 172, 176, 366
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. S.E.2d 719, 721 (1988). Any element of an offense may be proved
by circumstantial evidence, provided the evidence as a whole is
sufficiently convincing to exclude all reasonable hypotheses of
innocence. Coleman v. Commonwealth, 226 Va. 31, 53, 307 S.E.2d
864, 876 (1983).
I.
POSSESSION
"To convict a person of possession of illegal drugs 'the
Commonwealth must prove that the defendant was aware of the
presence and character of the drugs and that he intentionally
and consciously possessed them.'" Castaneda v. Commonwealth, 7
Va. App. 574, 583, 376 S.E.2d 82, 86 (1989) (en banc) (quoting
Andrews v. Commonwealth, 216 Va. 179, 182, 217 S.E.2d 812, 814
(1975)). "Physical possession giving the defendant 'immediate
and exclusive control' is sufficient." Gillis v. Commonwealth,
215 Va. 298, 301-02, 208 S.E.2d 768, 771 (1974). Proximity to a
controlled substance, standing alone, is insufficient. Wright
v. Commonwealth, 217 Va. 669, 670, 232 S.E.2d 733, 734 (1977).
Here, the direct and circumstantial evidence supported a
finding that appellant had actual possession of the cocaine
Deputy C.W. Reed retrieved from the ground. Appellant admitted
that he expected Deputy Reed to search him during the traffic
stop. Deputy Reed testified, and the videotape confirmed, that
appellant appeared nervous while he waited at the rear of his
car and that he placed his hands in his pockets repeatedly. The
- 2 - videotape showed appellant using several pulling motions to
remove an unidentified object from his right pants pocket. The
videotape then showed appellant moving his hand off-camera to
the right and making a throwing motion with that hand before
placing both hands on the rear of the car.
Within minutes, Deputy Reed retrieved an object from the
ground, five to seven feet from where appellant stood, and from
the same area toward which appellant appeared to have thrown the
object he removed from his pocket. Before Deputy Reed
approached the object, he stood the same distance from the
object as appellant. Although Deputy Reed could not tell what
the object was from that distance, appellant, who presumably had
no better opportunity to identify the object from that distance
than Deputy Reed did, said, "Oh, man, I guess you're going to
say that those are mine." Thus, appellant indicated an
awareness of the presence and character of the drugs he had
discarded moments earlier.
Although the store parking lot in which the stop occurred
was "fairly well traveled," was known as "a high drug traffic
area," and contained other parked cars, the store was closed,
"no one [other than Deputy Reed's back-up officers was] in the
area" during the time of the stop, and the plastic baggie
containing the cocaine did not appear to have been "walked
over[,] . . . driven upon or anything to that effect." Further,
no evidence established that Deputy Reed found any other item on
- 3 - the ground in the area in which appellant had discarded the item
he pulled from his pocket. Finally, the jury was entitled to
infer from the value of the drugs, which the evidence
established was about sixty dollars, that they had not been
randomly discarded by someone other than appellant. Cf. Brown
v. Commonwealth, 15 Va. App. 1, 9, 421 S.E.2d 877, 883 (1992)
(en banc) ("[T]he finder of fact may infer from the value of
drugs found on premises owned or occupied by an individual that
it is unlikely anyone who is a transient would leave a thing of
great value in a place not under his dominion and control.").
Thus, the only reasonable hypothesis flowing from the
evidence, viewed in the light most favorable to the
Commonwealth, was that appellant had actual possession of the
crack cocaine at the time of the stop, anticipated being
searched, and discarded the cocaine so that it would not be
found on his person.
II.
INTENT TO DISTRIBUTE
The intent of an accused to distribute drugs may be shown
by circumstantial evidence. Wells v. Commonwealth, 2 Va. App.
549, 551, 347 S.E.2d 139, 140 (1986). Circumstances that shed
light on the accused's specific intent regarding illegal drugs
in his possession include (1) the quantity and method of
packaging of the drugs possessed by him, (2) the presence or
absence of an unusual amount of money suggesting profit from
- 4 - sales, and (3) the presence or absence of drug paraphernalia.
See Servis v. Commonwealth, 6 Va. App. 507, 524-25, 371 S.E.2d
156, 165 (1988); see also Dukes v. Commonwealth, 227 Va. 119,
122, 313 S.E.2d 382, 383 (1984); Wells, 2 Va. App. at 551-52,
347 S.E.2d at 140.
Here, the evidence established that appellant had in his
possession three twenty-dollar rocks of crack cocaine weighing a
total of 0.88 grams. Although appellant also had the remains of
a marijuana cigarette in his pocket, indicating he may have been
a user of marijuana, no evidence established that he possessed a
device, either on his person or in his car, for ingesting the
cocaine. Appellant had over four hundred dollars in cash,
including sixteen twenty-dollar bills, five one-dollar bills,
one ten-dollar bill and one hundred-dollar bill. The bills
"were all crumpled individually and separate from each other."
Sergeant Gil Kendall, qualified as an expert witness in the
field of illegal narcotics, testified that the quantity of
cocaine appellant possessed and the method of its packaging,
coupled with the quantity of loose and crumpled twenty-dollar
bills he possessed, was consistent with possession of cocaine
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COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Elder and Humphreys Argued at Alexandria, Virginia
JUSTIN THOMAS BROOKS MEMORANDUM OPINION * BY v. Record No. 0811-02-4 JUDGE LARRY G. ELDER MARCH 4, 2003 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF STAFFORD COUNTY J. Peyton Farmer, Judge Designate
Patricia Kelly (Woodbridge, Ventura & Kelly, P.C., on brief), for appellant.
Jennifer R. Franklin, Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.
Justin Thomas Brooks (appellant) appeals from his jury
trial conviction for possession of cocaine with intent to
distribute. On appeal, he contends the evidence was
insufficient to prove both that he possessed the cocaine and
that he did so with the requisite intent. We hold the evidence
was sufficient to support the conviction, and we affirm.
On appellate review, we examine the evidence in the light
most favorable to the Commonwealth, and we may not disturb the
jury's verdict unless it is plainly wrong or without evidence to
support it. Traverso v. Commonwealth, 6 Va. App. 172, 176, 366
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. S.E.2d 719, 721 (1988). Any element of an offense may be proved
by circumstantial evidence, provided the evidence as a whole is
sufficiently convincing to exclude all reasonable hypotheses of
innocence. Coleman v. Commonwealth, 226 Va. 31, 53, 307 S.E.2d
864, 876 (1983).
I.
POSSESSION
"To convict a person of possession of illegal drugs 'the
Commonwealth must prove that the defendant was aware of the
presence and character of the drugs and that he intentionally
and consciously possessed them.'" Castaneda v. Commonwealth, 7
Va. App. 574, 583, 376 S.E.2d 82, 86 (1989) (en banc) (quoting
Andrews v. Commonwealth, 216 Va. 179, 182, 217 S.E.2d 812, 814
(1975)). "Physical possession giving the defendant 'immediate
and exclusive control' is sufficient." Gillis v. Commonwealth,
215 Va. 298, 301-02, 208 S.E.2d 768, 771 (1974). Proximity to a
controlled substance, standing alone, is insufficient. Wright
v. Commonwealth, 217 Va. 669, 670, 232 S.E.2d 733, 734 (1977).
Here, the direct and circumstantial evidence supported a
finding that appellant had actual possession of the cocaine
Deputy C.W. Reed retrieved from the ground. Appellant admitted
that he expected Deputy Reed to search him during the traffic
stop. Deputy Reed testified, and the videotape confirmed, that
appellant appeared nervous while he waited at the rear of his
car and that he placed his hands in his pockets repeatedly. The
- 2 - videotape showed appellant using several pulling motions to
remove an unidentified object from his right pants pocket. The
videotape then showed appellant moving his hand off-camera to
the right and making a throwing motion with that hand before
placing both hands on the rear of the car.
Within minutes, Deputy Reed retrieved an object from the
ground, five to seven feet from where appellant stood, and from
the same area toward which appellant appeared to have thrown the
object he removed from his pocket. Before Deputy Reed
approached the object, he stood the same distance from the
object as appellant. Although Deputy Reed could not tell what
the object was from that distance, appellant, who presumably had
no better opportunity to identify the object from that distance
than Deputy Reed did, said, "Oh, man, I guess you're going to
say that those are mine." Thus, appellant indicated an
awareness of the presence and character of the drugs he had
discarded moments earlier.
Although the store parking lot in which the stop occurred
was "fairly well traveled," was known as "a high drug traffic
area," and contained other parked cars, the store was closed,
"no one [other than Deputy Reed's back-up officers was] in the
area" during the time of the stop, and the plastic baggie
containing the cocaine did not appear to have been "walked
over[,] . . . driven upon or anything to that effect." Further,
no evidence established that Deputy Reed found any other item on
- 3 - the ground in the area in which appellant had discarded the item
he pulled from his pocket. Finally, the jury was entitled to
infer from the value of the drugs, which the evidence
established was about sixty dollars, that they had not been
randomly discarded by someone other than appellant. Cf. Brown
v. Commonwealth, 15 Va. App. 1, 9, 421 S.E.2d 877, 883 (1992)
(en banc) ("[T]he finder of fact may infer from the value of
drugs found on premises owned or occupied by an individual that
it is unlikely anyone who is a transient would leave a thing of
great value in a place not under his dominion and control.").
Thus, the only reasonable hypothesis flowing from the
evidence, viewed in the light most favorable to the
Commonwealth, was that appellant had actual possession of the
crack cocaine at the time of the stop, anticipated being
searched, and discarded the cocaine so that it would not be
found on his person.
II.
INTENT TO DISTRIBUTE
The intent of an accused to distribute drugs may be shown
by circumstantial evidence. Wells v. Commonwealth, 2 Va. App.
549, 551, 347 S.E.2d 139, 140 (1986). Circumstances that shed
light on the accused's specific intent regarding illegal drugs
in his possession include (1) the quantity and method of
packaging of the drugs possessed by him, (2) the presence or
absence of an unusual amount of money suggesting profit from
- 4 - sales, and (3) the presence or absence of drug paraphernalia.
See Servis v. Commonwealth, 6 Va. App. 507, 524-25, 371 S.E.2d
156, 165 (1988); see also Dukes v. Commonwealth, 227 Va. 119,
122, 313 S.E.2d 382, 383 (1984); Wells, 2 Va. App. at 551-52,
347 S.E.2d at 140.
Here, the evidence established that appellant had in his
possession three twenty-dollar rocks of crack cocaine weighing a
total of 0.88 grams. Although appellant also had the remains of
a marijuana cigarette in his pocket, indicating he may have been
a user of marijuana, no evidence established that he possessed a
device, either on his person or in his car, for ingesting the
cocaine. Appellant had over four hundred dollars in cash,
including sixteen twenty-dollar bills, five one-dollar bills,
one ten-dollar bill and one hundred-dollar bill. The bills
"were all crumpled individually and separate from each other."
Sergeant Gil Kendall, qualified as an expert witness in the
field of illegal narcotics, testified that the quantity of
cocaine appellant possessed and the method of its packaging,
coupled with the quantity of loose and crumpled twenty-dollar
bills he possessed, was consistent with possession of cocaine
for sale 1 and caused him to conclude that appellant did not
possess the cocaine for personal use. He testified that a user
1 Appellant did not allege at trial and does not contend on appeal that Kendall's statement was improper testimony on an ultimate issue in the case. Thus, we do not consider this issue.
- 5 - of crack cocaine ordinarily would not have bought the three
twenty-dollar rocks of crack cocaine that appellant had in his
possession. The rocks weighed 0.88 grams, and Sergeant Kendall
testified that a typical user would have purchased an uncut gram
of cocaine because he could have obtained it for a lower price.
Sergeant Kendall also noted the rocks of crack cocaine appellant
possessed ordinarily sold for twenty or twenty-five dollars each
and, for this reason, that appellant's possession of a quantity
of crumpled twenty-dollar bills was significant. He explained
that drug sales usually occur with "exact change" because, in
"transactions between [a] buyer and [a] seller, nobody trust[s]
anybody." He also noted that the condition of the money was
"inconsistent with someone just getting money from the bank or
cashing a check or someone giving it to you because most people
keep their money in a standard way."
Thus, although Kendall admitted the quantity of cocaine
appellant possessed was not unusually large, evidence of the
method of cutting and packaging of the cocaine as twenty-dollar
rocks, coupled with the quantity of cash and crumpled
twenty-dollar bills and the absence of a smoking device or other
evidence that he possessed the drugs for personal use, supported
the finding that he possessed the cocaine with an intent to
distribute it.
- 6 - For these reasons, we hold the evidence is sufficient to
support appellant's conviction, and we affirm.
Affirmed.
- 7 -