Mark Edward Robinson v. Commonwealth

• Court: Court of Appeals of Virginia
• Decided: February 20, 1996
• Docket: 0572953
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Willis and Bray Argued at Richmond, Virginia

MARK EDWARD ROBINSON MEMORANDUM OPINION * BY v. Record No. 0572-95-3 JUDGE JAMES W. BENTON, JR. FEBRUARY 20, 1996 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG Mosby G. Perrow, III, Judge Elizabeth P. Murtagh, Assistant Public Defender (Office of the Public Defender, on brief), for appellant.

Brian Wainger, Assistant Attorney General (James S. Gilmore, III, Attorney General; Monica S. McElyea, Assistant Attorney General, on brief), for appellee.

Mark Edward Robinson was convicted of possessing cocaine

with the intent to distribute in violation of Code § 18.2-248.

He contends that the evidence was insufficient to prove beyond a

reasonable doubt that he intended to distribute the cocaine. We

agree and reverse the conviction.

The evidence proved that Investigator P. K. Morris of the

Lynchburg Police Department received information that a man, who

was standing in front of a building on Church Street, possessed

cocaine. The report stated that the man was wearing a black

t-shirt with "Jordan" written across it, blue jeans, and white

tennis shoes. The investigator and three other officers drove to

* Pursuant to Code § 17-116.010 this opinion is not designated for publication. the area and observed Robinson fitting that description. As the

officers watched, Robinson walked in and out of a building three

times. After the officers drove towards Robinson and exited

their vehicle, Robinson ran and threw a plastic bag to the

ground. The investigator followed Robinson and arrested him. In

a search of Robinson, the investigator recovered a razor blade

from Robinson's wallet. The white residue on the razor blade was

not identified. One of the officers recovered the plastic bag and saw that

it contained over forty white chunks. A laboratory analysis

revealed that the bag contained 8.57 grams of cocaine.

The trial judge overruled Robinson's motion to strike the

evidence. The trial judge ruled that the evidence was sufficient

to convict Robinson of possession of cocaine with intent to

distribute. Robinson appeals the finding of sufficient evidence

to prove intent.

Where, as in this case, "evidence of an intent to distribute

is entirely circumstantial, 'all necessary circumstances proved

must be consistent with guilt and inconsistent with innocence and

exclude every reasonable hypothesis of innocence.'" Morton v.

Commonwealth, 13 Va. App. 6, 9, 408 S.E.2d 583, 584 (1991)

(citation omitted). When the proof of intent to distribute narcotics rests upon circumstantial evidence, the quantity which the defendant possesses is a circumstance to be considered. Indeed, quantity, alone, may be sufficient to establish such intent if it is greater than the supply ordinarily possessed for one's

- 2 - personal use. However, possession of a small quantity creates an inference that the drug was for the personal use of the defendant.

Dukes v. Commonwealth, 227 Va. 119, 122, 313 S.E.2d 382, 383

(1984) (citation omitted). As in all criminal prosecutions, the

burden is upon the Commonwealth to prove beyond a reasonable

doubt the elements of the offense. In re Winship, 397 U.S. 358,

364 (1970); Morton, 13 Va. App. at 11, 408 S.E.2d at 586.

In the present case, the evidence proved only the quantity

of cocaine. No evidence established that the quantity was not

consistent with personal use. No other evidence tended to prove

intent to distribute. The Commonwealth argues that the trial judge could have

inferred intent to distribute from the proof that Robinson went

into the building several times. We disagree. That conduct,

even when combined with Robinson's possession of cocaine,

provides no foundation from which the trial judge could have

inferred beyond a reasonable doubt that Robinson was entering the

building for the purpose of distributing cocaine. Accordingly,

we reverse the conviction. Reversed and remanded.

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