COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Annunziata and Senior Judge Coleman ∗ Argued at Richmond, Virginia
LEROY NATHANIEL INGRAM MEMORANDUM OPINION ∗∗ BY v. Record No. 2996-99-2 JUDGE SAM W. COLEMAN III JANUARY 16, 2001 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND James B. Wilkinson, Judge
Gregory W. Franklin, Assistant Public Defender (Office of the Public Defender, on brief), for appellant.
(Mark L. Earley, Attorney General; H. Elizabeth Shaffer, Assistant Attorney General, on brief), for appellee.
Leroy Nathaniel Ingram was convicted in a bench trial of
possession of cocaine with intent to distribute in violation of
Code § 18.2-248. The sole issue on appeal is whether the
evidence is sufficient to support a finding that Ingram intended
to distribute the cocaine. For the reasons that follow, we
affirm the conviction.
∗ Judge Coleman participated in the hearing and decision of this case prior to the effective date of his retirement on December 31, 2000 and thereafter by his designation as a senior judge pursuant to Code § 17.1-401. ∗∗ Pursuant to Code § 17.1-413, this opinion is not designated for publication. BACKGROUND
Viewed in the light most favorable to the Commonwealth, the
evidence and inferences that reasonably could be drawn from the
evidence proved that at approximately 11:40 a.m., Richmond
Police Officer LaMonte P. Tucker was driving westbound in his
patrol car on Y Street when he observed Ingram and another man
walking eastbound. As Tucker's vehicle approached Ingram,
Tucker observed Ingram reach into his pocket and a small baggie
fall to the ground. Tucker did not see exactly from where the
bag dropped. Tucker stopped and asked Ingram to approach him.
Tucker asked the other man to step away so that Tucker could
talk to Ingram. Tucker testified that when Ingram "walked over
to me he leaned up against my car and he dropped a scale from
underneath his jacket." Tucker testified that, although Ingram
was not facing him and he did not actually see the scale fall
from Ingram's jacket, he heard the "clinking" sound of the scale
as it hit the ground.
The baggie that fell from Ingram's person contained 3.26
grams of cocaine. The cocaine was packaged in such a way that
the outer baggie contained both drugs and two baggie corners,
which also contained drugs. Ingram also possessed a pager and
$30 in currency in five and single dollar denominations.
Officer Thomas Lloyd, accepted by the court as an expert on
street level narcotics, testified that the pager, small
- 2 - denominations of currency, the quantity of cocaine, and the
possession of the scale were inconsistent with personal use.
ANALYSIS
"On review of a challenge to the sufficiency of the
evidence, we view the evidence in the light most favorable to
the Commonwealth, the prevailing party, and grant to it all
reasonable inferences fairly deducible therefrom." Robertson v.
Commonwealth, 31 Va. App. 814, 820, 525 S.E.2d 640, 643 (2000)
(citing Commonwealth v. Jenkins, 255 Va. 516, 521, 499 S.E.2d
263, 265 (1998)). "The judgment of a trial court sitting
without a jury is entitled to the same weight as a jury verdict,
and will not be disturbed on appeal unless plainly wrong or
without evidence to support it." Beck v. Commonwealth, 2 Va.
App. 170, 172, 342 S.E.2d 642, 643 (1986) (citations omitted).
"The credibility of the witnesses and the weight accorded the
evidence are matters solely for the fact finder who has the
opportunity to see and hear that evidence as it is presented."
Sandoval v. Commonwealth, 20 Va. App. 133, 138, 455 S.E.2d 730,
732 (1995) (citations omitted).
"[F]or a defendant to be convicted of possession of a
controlled substance with the intent to distribute, the
Commonwealth must prove that the defendant possessed the
controlled substance contemporaneously with his intention to
distribute that substance." Stanley v. Commonwealth, 12 Va.
- 3 - App. 867, 869, 407 S.E.2d 13, 15 (1991) (en banc). "Because
direct proof of [the] intent [to distribute] 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 sufficient to prove guilt
beyond a reasonable doubt so long as 'all necessary
circumstances proved . . . [are] consistent with guilt and
inconsistent with innocence and must exclude every reasonable
hypothesis of innocence.'" McNair v. Commonwealth, 31 Va. App.
76, 86, 521 S.E.2d 303, 308 (1999) (en banc) (quoting Bishop v.
Commonwealth, 227 Va. 164, 169, 313 S.E.2d 390, 393 (1984)).
Circumstantial proof of a defendant's intent includes the
quantity of the drugs, the manner in which the drugs are
packaged, and the presence or absence of drug paraphernalia
associated with drug distribution or personal use. See Servis,
6 Va. App. at 524-25, 371 S.E.2d at 165; see also White v.
Commonwealth, 25 Va. App. 662, 668, 492 S.E.2d 451, 454 (1997)
(en banc) (recognizing pagers as tools of the drug trade); Davis
v. Commonwealth, 12 Va. App. 728, 733, 406 S.E.2d 922, 925
(1991) (finding that possession of a small quantity of drugs
found together with a handscale and a set of weights divided
into grams, two boxes of plastic sandwich bags, twist ties, and
$800 in cash was sufficient circumstantial evidence of an intent
to distribute). Although "[p]ossession of a small quantity [of
- 4 - drugs] creates an inference that the drug is for personal
use[,]" possession of a small quantity, "when considered with
other circumstances, may be sufficient to establish an intent to
distribute." Servis, 6 Va. App. at 524, 371 S.E.2d at 165
(citations omitted).
Ingram argues that because the evidence is insufficient to
prove that he possessed the scale, it is insufficient to prove
that he intended to distribute the cocaine. We disagree. After
observing Ingram drop a baggie of cocaine, Officer Tucker
stopped his vehicle and asked Ingram to approach him. When
Ingram leaned against the vehicle, Tucker heard the scale
"clinking" as it hit the ground. Although Tucker did not
inspect the area near his car before asking Ingram to approach
him and did not actually see the portable scale fall, there were
no other objects in the area that would account for the noise.
The fact finder, therefore, could have reasonably inferred that
Ingram possessed the scale and dropped it as he approached the
police officer. See Powell v. Commonwealth, 27 Va. App. 173,
178-80,
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COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Annunziata and Senior Judge Coleman ∗ Argued at Richmond, Virginia
LEROY NATHANIEL INGRAM MEMORANDUM OPINION ∗∗ BY v. Record No. 2996-99-2 JUDGE SAM W. COLEMAN III JANUARY 16, 2001 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND James B. Wilkinson, Judge
Gregory W. Franklin, Assistant Public Defender (Office of the Public Defender, on brief), for appellant.
(Mark L. Earley, Attorney General; H. Elizabeth Shaffer, Assistant Attorney General, on brief), for appellee.
Leroy Nathaniel Ingram was convicted in a bench trial of
possession of cocaine with intent to distribute in violation of
Code § 18.2-248. The sole issue on appeal is whether the
evidence is sufficient to support a finding that Ingram intended
to distribute the cocaine. For the reasons that follow, we
affirm the conviction.
∗ Judge Coleman participated in the hearing and decision of this case prior to the effective date of his retirement on December 31, 2000 and thereafter by his designation as a senior judge pursuant to Code § 17.1-401. ∗∗ Pursuant to Code § 17.1-413, this opinion is not designated for publication. BACKGROUND
Viewed in the light most favorable to the Commonwealth, the
evidence and inferences that reasonably could be drawn from the
evidence proved that at approximately 11:40 a.m., Richmond
Police Officer LaMonte P. Tucker was driving westbound in his
patrol car on Y Street when he observed Ingram and another man
walking eastbound. As Tucker's vehicle approached Ingram,
Tucker observed Ingram reach into his pocket and a small baggie
fall to the ground. Tucker did not see exactly from where the
bag dropped. Tucker stopped and asked Ingram to approach him.
Tucker asked the other man to step away so that Tucker could
talk to Ingram. Tucker testified that when Ingram "walked over
to me he leaned up against my car and he dropped a scale from
underneath his jacket." Tucker testified that, although Ingram
was not facing him and he did not actually see the scale fall
from Ingram's jacket, he heard the "clinking" sound of the scale
as it hit the ground.
The baggie that fell from Ingram's person contained 3.26
grams of cocaine. The cocaine was packaged in such a way that
the outer baggie contained both drugs and two baggie corners,
which also contained drugs. Ingram also possessed a pager and
$30 in currency in five and single dollar denominations.
Officer Thomas Lloyd, accepted by the court as an expert on
street level narcotics, testified that the pager, small
- 2 - denominations of currency, the quantity of cocaine, and the
possession of the scale were inconsistent with personal use.
ANALYSIS
"On review of a challenge to the sufficiency of the
evidence, we view the evidence in the light most favorable to
the Commonwealth, the prevailing party, and grant to it all
reasonable inferences fairly deducible therefrom." Robertson v.
Commonwealth, 31 Va. App. 814, 820, 525 S.E.2d 640, 643 (2000)
(citing Commonwealth v. Jenkins, 255 Va. 516, 521, 499 S.E.2d
263, 265 (1998)). "The judgment of a trial court sitting
without a jury is entitled to the same weight as a jury verdict,
and will not be disturbed on appeal unless plainly wrong or
without evidence to support it." Beck v. Commonwealth, 2 Va.
App. 170, 172, 342 S.E.2d 642, 643 (1986) (citations omitted).
"The credibility of the witnesses and the weight accorded the
evidence are matters solely for the fact finder who has the
opportunity to see and hear that evidence as it is presented."
Sandoval v. Commonwealth, 20 Va. App. 133, 138, 455 S.E.2d 730,
732 (1995) (citations omitted).
"[F]or a defendant to be convicted of possession of a
controlled substance with the intent to distribute, the
Commonwealth must prove that the defendant possessed the
controlled substance contemporaneously with his intention to
distribute that substance." Stanley v. Commonwealth, 12 Va.
- 3 - App. 867, 869, 407 S.E.2d 13, 15 (1991) (en banc). "Because
direct proof of [the] intent [to distribute] 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 sufficient to prove guilt
beyond a reasonable doubt so long as 'all necessary
circumstances proved . . . [are] consistent with guilt and
inconsistent with innocence and must exclude every reasonable
hypothesis of innocence.'" McNair v. Commonwealth, 31 Va. App.
76, 86, 521 S.E.2d 303, 308 (1999) (en banc) (quoting Bishop v.
Commonwealth, 227 Va. 164, 169, 313 S.E.2d 390, 393 (1984)).
Circumstantial proof of a defendant's intent includes the
quantity of the drugs, the manner in which the drugs are
packaged, and the presence or absence of drug paraphernalia
associated with drug distribution or personal use. See Servis,
6 Va. App. at 524-25, 371 S.E.2d at 165; see also White v.
Commonwealth, 25 Va. App. 662, 668, 492 S.E.2d 451, 454 (1997)
(en banc) (recognizing pagers as tools of the drug trade); Davis
v. Commonwealth, 12 Va. App. 728, 733, 406 S.E.2d 922, 925
(1991) (finding that possession of a small quantity of drugs
found together with a handscale and a set of weights divided
into grams, two boxes of plastic sandwich bags, twist ties, and
$800 in cash was sufficient circumstantial evidence of an intent
to distribute). Although "[p]ossession of a small quantity [of
- 4 - drugs] creates an inference that the drug is for personal
use[,]" possession of a small quantity, "when considered with
other circumstances, may be sufficient to establish an intent to
distribute." Servis, 6 Va. App. at 524, 371 S.E.2d at 165
(citations omitted).
Ingram argues that because the evidence is insufficient to
prove that he possessed the scale, it is insufficient to prove
that he intended to distribute the cocaine. We disagree. After
observing Ingram drop a baggie of cocaine, Officer Tucker
stopped his vehicle and asked Ingram to approach him. When
Ingram leaned against the vehicle, Tucker heard the scale
"clinking" as it hit the ground. Although Tucker did not
inspect the area near his car before asking Ingram to approach
him and did not actually see the portable scale fall, there were
no other objects in the area that would account for the noise.
The fact finder, therefore, could have reasonably inferred that
Ingram possessed the scale and dropped it as he approached the
police officer. See Powell v. Commonwealth, 27 Va. App. 173,
178-80, 497 S.E.2d 899, 901-02 (1998) (finding the evidence
sufficient to support a conviction for possession of cocaine
where, although not observed dropping the drugs, defendant
unclenched his fist when approached by the police in a high
drug/crime area and drugs were recovered from the ground below
where defendant made the dropping motion); see also Beverly v.
- 5 - Commonwealth, 12 Va. App. 160, 164-65, 403 S.E.2d 175, 177-78
(1991) (finding evidence sufficient to prove possession of
cocaine where a bag of cocaine was found in a heavily-traveled
roadway where defendant was attempting to escape and where
defendant was observed dropping an unidentified object in the
roadway).
Other evidence also was sufficient to support the trial
court's finding that Ingram possessed the cocaine with the
intent to distribute. In addition to possessing cocaine and the
scale, Ingram possessed a pager and $30 in currency in small
bills. An expert witness testified that the manner in which the
drugs were packaged and the presence of the scale, pager, and
currency are factors which are inconsistent with personal use.
The expert witness testified that scales are often used by
street level dealers to weigh drugs before distribution and that
pagers are often used by drug dealers to communicate with each
other. Additionally, the expert witness testified that the
amount of cocaine, 3.26 grams, was inconsistent with personal
use. Further, no evidence proved that Ingram used cocaine or
that he possessed it for his personal use. Therefore, the
evidence is sufficient to support the conviction.
Accordingly, we affirm.
Affirmed.
- 6 -