COURT OF APPEALS OF VIRGINIA
Present: Judges Kelsey, Haley and Beales Argued at Chesapeake, Virginia
MICHAEL A. BAILEY MEMORANDUM OPINION * BY v. Record No. 2665-06-1 JUDGE D. ARTHUR KELSEY JANUARY 8, 2008 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH Dean W. Sword, Jr., Judge
S. Jane Chittom, Appellate Defender (Office of the Appellate Defender, on briefs), for appellant. Rosemary V. Bourne, Assistant Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee.
The trial court convicted Michael A. Bailey of possession of cocaine with intent
to distribute, a violation of Code § 18.2-248(A). On appeal, Bailey challenges the
relevance of certain evidence admitted at trial and the evidentiary sufficiency of his
conviction. Finding neither challenge persuasive, we affirm.
I.
Under settled principles, we review the evidence in the “light most favorable” to
the Commonwealth. Commonwealth v. Hudson, 265 Va. 505, 514, 578 S.E.2d 781, 786
(2003). That principle 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.” Parks v. Commonwealth,
221 Va. 492, 498, 270 S.E.2d 755, 759 (1980) (emphasis and citation omitted).
The evidence at trial described an on-going drug surveillance operation conducted
at the 40 and 50 block of Grove Street in Portsmouth, an area notorious for drug dealing.
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. From a concealed location, Officer S.W. Johnson observed several apparent drug sales at
57 Grove Street. The police had already made several arrests in this area that day and
recovered crack cocaine. Officer Johnson saw Bailey talking with Sharon Boone in front
of the residence at 57 Grove Street. They appeared to be sharing a marijuana cigarette.
For a period of time, Bailey sat in front of the residence in a lawn chair as Boone
repeatedly walked in and out. Officer Johnson watched as a vehicle stopped in the
middle of the street in front of the residence. A female exited and walked to the front of
the vehicle. Bailey rose from the lawn chair, walked over to the woman, and briefly
spoke with her. He then took cash from the woman and walked to the side of the front
porch at 57 Grove Street.
After Bailey said something, Boone appeared from the front door and reached
into the right rear pocket of her jeans. She removed a plastic bag, extracted from the bag
what appeared to Officer Johnson to be a rock of crack cocaine, and handed the rock to
Bailey. He, in turn, handed her the money he had received from the woman at the car.
Boone returned the plastic bag to her right rear pocket and placed the money in a
different jeans pocket. Boone then went back into the residence. Bailey walked back to
the street, where he handed the rock to the woman at the car. The woman got back into
the vehicle and left. Bailey returned to the lawn chair.
Police officers then arrested Bailey and Boone for suspected distribution of
cocaine. In Boone’s right rear pocket, officers found a bag containing four rocks of crack
cocaine. They also found $80 in cash in one of her front pockets. Boone confessed to
police that Bailey gave her $10 in “exchange” for the “dime” in her back pocket. When
asked what a “dime” was, Boone answered, “I guess crack.” When asked if by “crack”
she meant crack cocaine, she responded, “I guess so.”
-2- A grand jury indicted Bailey for distribution of cocaine and for conspiring to
distribute cocaine. At trial, Boone testified she did not have an “independent
recollection” of the events but could affirm that her earlier statement to the police was
“true and correct.” She also admitted that she pled guilty to “selling cocaine on that day”
but made no specific agreement with the prosecution to testify against Bailey.
Without objection, the trial court admitted into evidence the certificate of analysis
confirming that the four rocks taken from Boone’s right rear pocket, which Officer
Johnson suspected to be cocaine, were in fact cocaine. When the prosecutor offered the
actual rocks of cocaine (previously analyzed and described by the certificate of analysis),
Bailey objected. The cocaine, counsel argued, lacked a sufficient “nexus” between
Boone and Bailey. The trial court disagreed and admitted the cocaine into evidence.
At the close of the Commonwealth’s evidence, the trial court dismissed the
conspiracy charge and denied Bailey’s motion to strike the evidence of the possession
with intent to distribute charge. Bailey elected not to present any evidence. The trial
court found him guilty of possession of cocaine with intent to distribute.
II.
On appeal, Bailey contends the trial court erred in admitting the four rocks of
cocaine into evidence because they were legally irrelevant. Bailey also argues that the
evidence failed to prove his guilt beyond a reasonable doubt. We disagree with both
assertions.
A. The Admissibility of the Same-Bag, Same-Pocket, Cocaine Rocks
Any evidence, “however remote or insignificant, that tends to establish the
probability or improbability of a fact in issue is relevant.” Thomas v. Commonwealth, 44
Va. App. 741, 753, 607 S.E.2d 738, 743, adopted upon reh’g en banc, 45 Va. App. 811,
-3- 613 S.E.2d 870 (2005) (footnote and citation omitted). In other words, “evidence has
relevance if it ‘tends to cast any light’ on any material point.” Id. at 753, 607 S.E.2d at
744 (citation omitted). Thus, the evidence need not itself be dispositive:
It is its tendency to prove or disprove — not its sufficiency, standing alone, to satisfy the ultimate burden of proof — that makes a fact relevant: “It is universally recognized that evidence, to be relevant to an inquiry, need not conclusively prove the ultimate fact in issue, but only have ‘any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.’”
Id. at 753-54, 607 S.E.2d at 744 (footnote omitted) (quoting McKoy v. North Carolina,
494 U.S. 433, 440 (1990), with citations and internal brackets omitted); see also Pryor v.
Commonwealth, 50 Va. App. 42, 50-51, 646 S.E.2d 21, 25 (2007).
We agree with the trial court that the four rocks of crack cocaine found in the bag
taken from Boone’s right rear pocket were relevant to this case. Officer Johnson saw
Boone take out of that same pocket (and same bag) what appeared to be a rock of crack
cocaine and give it to Bailey in exchange for money. Boone confessed to police that she
received $10 from Bailey and in return gave him a “dime” of what she reluctantly
acknowledged (“I guess so”) to be crack cocaine. She later pled guilty to selling cocaine.
It is of obvious relevance that the rock that appeared to be cocaine came from a stash of
rocks that proved in fact to be cocaine. To be sure, had the rocks instead been four
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COURT OF APPEALS OF VIRGINIA
Present: Judges Kelsey, Haley and Beales Argued at Chesapeake, Virginia
MICHAEL A. BAILEY MEMORANDUM OPINION * BY v. Record No. 2665-06-1 JUDGE D. ARTHUR KELSEY JANUARY 8, 2008 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH Dean W. Sword, Jr., Judge
S. Jane Chittom, Appellate Defender (Office of the Appellate Defender, on briefs), for appellant. Rosemary V. Bourne, Assistant Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee.
The trial court convicted Michael A. Bailey of possession of cocaine with intent
to distribute, a violation of Code § 18.2-248(A). On appeal, Bailey challenges the
relevance of certain evidence admitted at trial and the evidentiary sufficiency of his
conviction. Finding neither challenge persuasive, we affirm.
I.
Under settled principles, we review the evidence in the “light most favorable” to
the Commonwealth. Commonwealth v. Hudson, 265 Va. 505, 514, 578 S.E.2d 781, 786
(2003). That principle 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.” Parks v. Commonwealth,
221 Va. 492, 498, 270 S.E.2d 755, 759 (1980) (emphasis and citation omitted).
The evidence at trial described an on-going drug surveillance operation conducted
at the 40 and 50 block of Grove Street in Portsmouth, an area notorious for drug dealing.
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. From a concealed location, Officer S.W. Johnson observed several apparent drug sales at
57 Grove Street. The police had already made several arrests in this area that day and
recovered crack cocaine. Officer Johnson saw Bailey talking with Sharon Boone in front
of the residence at 57 Grove Street. They appeared to be sharing a marijuana cigarette.
For a period of time, Bailey sat in front of the residence in a lawn chair as Boone
repeatedly walked in and out. Officer Johnson watched as a vehicle stopped in the
middle of the street in front of the residence. A female exited and walked to the front of
the vehicle. Bailey rose from the lawn chair, walked over to the woman, and briefly
spoke with her. He then took cash from the woman and walked to the side of the front
porch at 57 Grove Street.
After Bailey said something, Boone appeared from the front door and reached
into the right rear pocket of her jeans. She removed a plastic bag, extracted from the bag
what appeared to Officer Johnson to be a rock of crack cocaine, and handed the rock to
Bailey. He, in turn, handed her the money he had received from the woman at the car.
Boone returned the plastic bag to her right rear pocket and placed the money in a
different jeans pocket. Boone then went back into the residence. Bailey walked back to
the street, where he handed the rock to the woman at the car. The woman got back into
the vehicle and left. Bailey returned to the lawn chair.
Police officers then arrested Bailey and Boone for suspected distribution of
cocaine. In Boone’s right rear pocket, officers found a bag containing four rocks of crack
cocaine. They also found $80 in cash in one of her front pockets. Boone confessed to
police that Bailey gave her $10 in “exchange” for the “dime” in her back pocket. When
asked what a “dime” was, Boone answered, “I guess crack.” When asked if by “crack”
she meant crack cocaine, she responded, “I guess so.”
-2- A grand jury indicted Bailey for distribution of cocaine and for conspiring to
distribute cocaine. At trial, Boone testified she did not have an “independent
recollection” of the events but could affirm that her earlier statement to the police was
“true and correct.” She also admitted that she pled guilty to “selling cocaine on that day”
but made no specific agreement with the prosecution to testify against Bailey.
Without objection, the trial court admitted into evidence the certificate of analysis
confirming that the four rocks taken from Boone’s right rear pocket, which Officer
Johnson suspected to be cocaine, were in fact cocaine. When the prosecutor offered the
actual rocks of cocaine (previously analyzed and described by the certificate of analysis),
Bailey objected. The cocaine, counsel argued, lacked a sufficient “nexus” between
Boone and Bailey. The trial court disagreed and admitted the cocaine into evidence.
At the close of the Commonwealth’s evidence, the trial court dismissed the
conspiracy charge and denied Bailey’s motion to strike the evidence of the possession
with intent to distribute charge. Bailey elected not to present any evidence. The trial
court found him guilty of possession of cocaine with intent to distribute.
II.
On appeal, Bailey contends the trial court erred in admitting the four rocks of
cocaine into evidence because they were legally irrelevant. Bailey also argues that the
evidence failed to prove his guilt beyond a reasonable doubt. We disagree with both
assertions.
A. The Admissibility of the Same-Bag, Same-Pocket, Cocaine Rocks
Any evidence, “however remote or insignificant, that tends to establish the
probability or improbability of a fact in issue is relevant.” Thomas v. Commonwealth, 44
Va. App. 741, 753, 607 S.E.2d 738, 743, adopted upon reh’g en banc, 45 Va. App. 811,
-3- 613 S.E.2d 870 (2005) (footnote and citation omitted). In other words, “evidence has
relevance if it ‘tends to cast any light’ on any material point.” Id. at 753, 607 S.E.2d at
744 (citation omitted). Thus, the evidence need not itself be dispositive:
It is its tendency to prove or disprove — not its sufficiency, standing alone, to satisfy the ultimate burden of proof — that makes a fact relevant: “It is universally recognized that evidence, to be relevant to an inquiry, need not conclusively prove the ultimate fact in issue, but only have ‘any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.’”
Id. at 753-54, 607 S.E.2d at 744 (footnote omitted) (quoting McKoy v. North Carolina,
494 U.S. 433, 440 (1990), with citations and internal brackets omitted); see also Pryor v.
Commonwealth, 50 Va. App. 42, 50-51, 646 S.E.2d 21, 25 (2007).
We agree with the trial court that the four rocks of crack cocaine found in the bag
taken from Boone’s right rear pocket were relevant to this case. Officer Johnson saw
Boone take out of that same pocket (and same bag) what appeared to be a rock of crack
cocaine and give it to Bailey in exchange for money. Boone confessed to police that she
received $10 from Bailey and in return gave him a “dime” of what she reluctantly
acknowledged (“I guess so”) to be crack cocaine. She later pled guilty to selling cocaine.
It is of obvious relevance that the rock that appeared to be cocaine came from a stash of
rocks that proved in fact to be cocaine. To be sure, had the rocks instead been four
peppermint candies, Bailey would no doubt remonstrate — correctly so — about their
logical relevance to the case. 1
1 Given our ruling, we need not address the Commonwealth’s argument that, even if the admission of the four rocks of cocaine was error, it was harmless given the uncontested admission of the certificate of analysis proving the four rocks found in Boone’s right rear pocket to be crack cocaine. See Smoot v. Commonwealth, 18 Va. App. 562, 566, 445 S.E.2d 688, 690-91 (1994) (applying harmless error “because the -4- B. Sufficiency of the Evidence
In Virginia, the factfinding of a lower court receives “the highest degree of
appellate deference.” Thomas v. Commonwealth, 48 Va. App. 605, 608, 633 S.E.2d 229,
231 (2006). Presuming factual findings to be correct, we reverse “only if the trial court’s
decision is ‘plainly wrong or without evidence to support it.’” Kelly v. Commonwealth,
41 Va. App. 250, 257, 584 S.E.2d 444, 447 (2003) (en banc) (citations omitted); see also
Haskins v. Commonwealth, 44 Va. App. 1, 7, 602 S.E.2d 402, 405 (2004) (citation
omitted). Under this standard, a “trial judge’s factual findings cannot be disturbed on
appeal unless no ‘rational trier of fact’ could have come to the conclusions he did.” Boyd
v. County of Henrico, 42 Va. App. 495, 525, 592 S.E.2d 768, 783 (2004) (en banc)
(citations omitted).
To be found guilty under Code § 18.2-248(A), a defendant must possess “the
controlled substance contemporaneously with his intention to distribute that substance.”
Craddock v. Commonwealth, 40 Va. App. 539, 553, 580 S.E.2d 454, 461 (2003) (citation
omitted). Like any other mens rea issue, intent to distribute can be (and usually must be)
inferred from the surrounding circumstances. See Cost v. Commonwealth, 49 Va. App.
215, 228, 638 S.E.2d 714, 720 (2006). “While no single piece of evidence may be
sufficient, the ‘combined force of many concurrent and related circumstances, each
insufficient in itself, may lead a reasonable mind irresistibly to a conclusion.’” Emerson
v. Commonwealth, 43 Va. App. 263, 277, 597 S.E.2d 242, 249 (2004) (citation omitted);
see also Harper v. Commonwealth, 49 Va. App. 517, 521-22, 642 S.E.2d 779, 781
(2007).
same information was properly before the fact finder by virtue of other evidence”); West v. Commonwealth, 12 Va. App. 906, 911, 407 S.E.2d 22, 25 (1991).
-5- In this case, we have no difficulty confirming the rationality of the trial court’s
factfinding. Officer Johnson saw Bailey possess what appeared to be a rock of crack
cocaine. Bailey received it from Boone who pulled the rock out of a bag taken from her
right rear pocket. In that same bag was a stash of four other rocks of crack. Boone
admitted giving a “dime” rock to Bailey in exchange for $10, a transfer that took place
just after Bailey had received a sum of money from the woman stepping out of the car
stopped in the middle of the street.
Bailey argues “one might surmise” he obtained a rock of crack cocaine from
Boone, but that inference would be “only a conjecture.” Appellant’s Br. at 11 (emphasis
in original). We concede the line between supposition and proof sometimes blurs, but
like everything else it depends on where the line is initially drawn. The burden of proof
in criminal cases, however, is not irrefutable certitude or the absence of every ephemeral
possibility of doubt — it is proof beyond a reasonable doubt. “Anything is possible,” as
Judge Posner has observed, “but a merely metaphysical doubt . . . is not a reasonable
doubt for purposes of the criminal law. If it were, no one could be convicted.” United
States v. Ytem, 255 F.3d 394, 397 (7th Cir. 2001) (citations omitted).
III.
Finding no evidentiary errors or insufficiencies of proof, we affirm Bailey’s
conviction for possession of cocaine with intent to distribute.
Affirmed.
-6-