COURT OF APPEALS OF VIRGINIA
Present: Judges Petty, O’Brien, and Senior Judge Frank UNPUBLISHED
Argued by teleconference
MICHAEL ANTHONY PATTON, JR. MEMORANDUM OPINION* BY v. Record No. 1494-19-2 JUDGE ROBERT P. FRANK JULY 7, 2020 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF HENRICO COUNTY L. A. Harris, Jr., Judge
Stephen A. Mutnick (Blackburn, Conte, Schilling & Click, P.C., on brief), for appellant.
Leanna C. Minix, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.
Michael Anthony Patton, Jr., appellant, was convicted, in a bench trial, of possession
with the intent to distribute cocaine, in violation of Code § 18.2-248.1 On appeal, he challenges
the sufficiency of the evidence. For the reasons stated, we affirm the conviction.
BACKGROUND
Henrico County Police Officer L.D. Pacifico observed appellant’s vehicle speeding and
employed his lights and siren to stop the car. Appellant drove past ten houses before entering the
driveway of his uncle’s house and parking the car behind the house. Appellant was the sole
occupant of the vehicle. Officer Pacifico became suspicious when he saw appellant reach down
to the right of the driver’s seat.
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. 1 Appellant also was charged with possession of a firearm while in possession of cocaine and possession of a firearm as a nonviolent convicted felon. The trial court acquitted appellant of the firearm charges. Officer Pacifico patted down appellant after smelling marijuana emanating from the
vehicle and appellant handing him a marijuana smoking device. Appellant reluctantly spread his
legs for the pat down. Officer Pacifico found nothing suspicious. Officer J. R. Burton arrived as
back-up and patted down appellant again, also finding nothing. Appellant did not appear to be
nervous, and the officers allowed him to walk around the immediate area. At one point,
appellant bent over at the waist to look at the police car, but nothing fell out of his pants.
While searching appellant’s vehicle, Officer Pacifico discovered a firearm in a “secret
compartment” located below and to the right of the driver’s seat but not in the center console.
Officer Burton then handcuffed appellant with his hands behind his back. Appellant denied any
knowledge of the firearm and informed the officers that the vehicle belonged to his mother.
Officer Pacifico continued to search appellant’s vehicle while Officer Burton stood with
appellant between a trashcan and the rear of Pacifico’s police vehicle. Officer Burton heard a
“thud from . . . the rubber trashcan at the side.” Although he had been holding appellant by one
elbow, Officer Burton did not recall appellant making “any weird movements” before he heard
the thud. Officer Burton immediately looked to the ground and saw two plastic bags, but he
“couldn’t make out completely” what was inside them. Officer Burton exclaimed, “Really!” He
called Officer Pacifico over to shine a flashlight on the two objects, which revealed two separate
plastic corner baggies containing white powder. Officer Burton testified that the trashcan was
about eight or nine inches from him and appellant and that the drugs were on the ground four to
six inches from the trashcan. Officer Burton, appellant, the two baggies, and the trashcan “were
all within a couple of feet of each other.” Appellant, whose hands were still handcuffed behind
his back, “denied anything to do with that cocaine on the ground.”
Officer Burton testified that he had walked by the area where the baggies were recovered
five to six times. He had not observed anything on the ground in that area before he heard the -2- thud. Officer Burton said that he could not always see the location of appellant’s hands prior to
appellant being handcuffed. Officer Burton stated that appellant would still have been able to
access the back of his pants and belt after he was handcuffed, but he did not feel the appellant’s
arm move in any way prior to the thud. Officer Burton did not identify anything else in the area
that could have caused the sound.
Officer Pacifico testified that he saw two corner baggies of white powder on the ground
about six to eighteen inches from appellant. He stated that he had walked through the area where
the drugs were recovered at least three times and had not seen anything there previously. He
testified that he had not looked specifically in the area of the trashcan when walking to and from
his police car, but he had checked the area because he was trained to examine his surroundings
“to make sure there’s nothing there that can either hurt you or something that is important.”
Because it was nighttime, the area was illuminated by an outdoor light attached to the nearby
house and by the police vehicle lights, and both officers could see the ground clearly.
Officer Pacifico testified that appellant had about $400 in cash. Officer Pacifico said that
he did not consider the cash to be a suspiciously large amount. He did not recover any scales in
appellant’s vehicle.
Forensic analysis determined that the two baggies held approximately seven grams of
cocaine. One baggie contained 1.1186 grams, and the second baggie contained 5.92 grams.
Detective K.M. Winter testified as an expert in investigating the distribution and possession of
narcotics. Detective Winter testified that, based on his training and experience, the quantity of
cocaine recovered was inconsistent with personal use. He testified that he had never encountered
a single user with that amount of cocaine. Detective Winter explained that a heavy cocaine user
uses about 1.5 grams per day, and therefore “[i]t is pretty unheard of for a user with that amount
of a habit to have seven grams on him because when they’re that bad in their addiction, they -3- would use as much as they had on hand.” Detective Winter noted that a user who is “that bad at
their habit” usually does not have enough money to purchase seven grams of cocaine. He
testified that when a user purchases cocaine for his habit, it is not typical for the purchaser to
“buy[] in bulk.” Detective Winter also noted that the cocaine was contained in two individual
baggies. He estimated the amount of cocaine recovered was valued at roughly $500.
Appellant was convicted of possession of cocaine with intent to distribute. This appeal
followed.
ANALYSIS
On appeal, appellant contends the evidence is insufficient to convict him because the
evidence does not exclude the possibility that the drugs were on the ground before the officers
discovered the two baggies. He also challenges the sufficiency of the evidence to prove he
distributed drugs.
“We review a challenge to the sufficiency of the evidence under well-settled legal
principles. On appeal, this Court considers the evidence in the light most favorable to the
Commonwealth, as the prevailing party below, granting to it all reasonable inferences that flow
from the evidence.” Chavez v. Commonwealth, 69 Va. App. 149, 161-62 (2018) (quoting Banks
v. Commonwealth, 67 Va. App. 273, 288 (2017)). “Viewing the record through this evidentiary
prism requires [the Court] to ‘discard the evidence of the accused in conflict with that of the
Commonwealth.’” Id. (quoting Banks, 67 Va. App. at 288). “If there is evidentiary support for
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COURT OF APPEALS OF VIRGINIA
Present: Judges Petty, O’Brien, and Senior Judge Frank UNPUBLISHED
Argued by teleconference
MICHAEL ANTHONY PATTON, JR. MEMORANDUM OPINION* BY v. Record No. 1494-19-2 JUDGE ROBERT P. FRANK JULY 7, 2020 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF HENRICO COUNTY L. A. Harris, Jr., Judge
Stephen A. Mutnick (Blackburn, Conte, Schilling & Click, P.C., on brief), for appellant.
Leanna C. Minix, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.
Michael Anthony Patton, Jr., appellant, was convicted, in a bench trial, of possession
with the intent to distribute cocaine, in violation of Code § 18.2-248.1 On appeal, he challenges
the sufficiency of the evidence. For the reasons stated, we affirm the conviction.
BACKGROUND
Henrico County Police Officer L.D. Pacifico observed appellant’s vehicle speeding and
employed his lights and siren to stop the car. Appellant drove past ten houses before entering the
driveway of his uncle’s house and parking the car behind the house. Appellant was the sole
occupant of the vehicle. Officer Pacifico became suspicious when he saw appellant reach down
to the right of the driver’s seat.
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. 1 Appellant also was charged with possession of a firearm while in possession of cocaine and possession of a firearm as a nonviolent convicted felon. The trial court acquitted appellant of the firearm charges. Officer Pacifico patted down appellant after smelling marijuana emanating from the
vehicle and appellant handing him a marijuana smoking device. Appellant reluctantly spread his
legs for the pat down. Officer Pacifico found nothing suspicious. Officer J. R. Burton arrived as
back-up and patted down appellant again, also finding nothing. Appellant did not appear to be
nervous, and the officers allowed him to walk around the immediate area. At one point,
appellant bent over at the waist to look at the police car, but nothing fell out of his pants.
While searching appellant’s vehicle, Officer Pacifico discovered a firearm in a “secret
compartment” located below and to the right of the driver’s seat but not in the center console.
Officer Burton then handcuffed appellant with his hands behind his back. Appellant denied any
knowledge of the firearm and informed the officers that the vehicle belonged to his mother.
Officer Pacifico continued to search appellant’s vehicle while Officer Burton stood with
appellant between a trashcan and the rear of Pacifico’s police vehicle. Officer Burton heard a
“thud from . . . the rubber trashcan at the side.” Although he had been holding appellant by one
elbow, Officer Burton did not recall appellant making “any weird movements” before he heard
the thud. Officer Burton immediately looked to the ground and saw two plastic bags, but he
“couldn’t make out completely” what was inside them. Officer Burton exclaimed, “Really!” He
called Officer Pacifico over to shine a flashlight on the two objects, which revealed two separate
plastic corner baggies containing white powder. Officer Burton testified that the trashcan was
about eight or nine inches from him and appellant and that the drugs were on the ground four to
six inches from the trashcan. Officer Burton, appellant, the two baggies, and the trashcan “were
all within a couple of feet of each other.” Appellant, whose hands were still handcuffed behind
his back, “denied anything to do with that cocaine on the ground.”
Officer Burton testified that he had walked by the area where the baggies were recovered
five to six times. He had not observed anything on the ground in that area before he heard the -2- thud. Officer Burton said that he could not always see the location of appellant’s hands prior to
appellant being handcuffed. Officer Burton stated that appellant would still have been able to
access the back of his pants and belt after he was handcuffed, but he did not feel the appellant’s
arm move in any way prior to the thud. Officer Burton did not identify anything else in the area
that could have caused the sound.
Officer Pacifico testified that he saw two corner baggies of white powder on the ground
about six to eighteen inches from appellant. He stated that he had walked through the area where
the drugs were recovered at least three times and had not seen anything there previously. He
testified that he had not looked specifically in the area of the trashcan when walking to and from
his police car, but he had checked the area because he was trained to examine his surroundings
“to make sure there’s nothing there that can either hurt you or something that is important.”
Because it was nighttime, the area was illuminated by an outdoor light attached to the nearby
house and by the police vehicle lights, and both officers could see the ground clearly.
Officer Pacifico testified that appellant had about $400 in cash. Officer Pacifico said that
he did not consider the cash to be a suspiciously large amount. He did not recover any scales in
appellant’s vehicle.
Forensic analysis determined that the two baggies held approximately seven grams of
cocaine. One baggie contained 1.1186 grams, and the second baggie contained 5.92 grams.
Detective K.M. Winter testified as an expert in investigating the distribution and possession of
narcotics. Detective Winter testified that, based on his training and experience, the quantity of
cocaine recovered was inconsistent with personal use. He testified that he had never encountered
a single user with that amount of cocaine. Detective Winter explained that a heavy cocaine user
uses about 1.5 grams per day, and therefore “[i]t is pretty unheard of for a user with that amount
of a habit to have seven grams on him because when they’re that bad in their addiction, they -3- would use as much as they had on hand.” Detective Winter noted that a user who is “that bad at
their habit” usually does not have enough money to purchase seven grams of cocaine. He
testified that when a user purchases cocaine for his habit, it is not typical for the purchaser to
“buy[] in bulk.” Detective Winter also noted that the cocaine was contained in two individual
baggies. He estimated the amount of cocaine recovered was valued at roughly $500.
Appellant was convicted of possession of cocaine with intent to distribute. This appeal
followed.
ANALYSIS
On appeal, appellant contends the evidence is insufficient to convict him because the
evidence does not exclude the possibility that the drugs were on the ground before the officers
discovered the two baggies. He also challenges the sufficiency of the evidence to prove he
distributed drugs.
“We review a challenge to the sufficiency of the evidence under well-settled legal
principles. On appeal, this Court considers the evidence in the light most favorable to the
Commonwealth, as the prevailing party below, granting to it all reasonable inferences that flow
from the evidence.” Chavez v. Commonwealth, 69 Va. App. 149, 161-62 (2018) (quoting Banks
v. Commonwealth, 67 Va. App. 273, 288 (2017)). “Viewing the record through this evidentiary
prism requires [the Court] to ‘discard the evidence of the accused in conflict with that of the
Commonwealth.’” Id. (quoting Banks, 67 Va. App. at 288). “If there is evidentiary support for
the conviction, ‘the reviewing court is not permitted to substitute its own judgment, even if its
opinion might differ from the conclusions reached by the finder of fact at the trial.’” Id. (quoting
Banks, 67 Va. App. at 288). The challenge for the appellate court reviewing the sufficiency of
the evidence is “whether, after viewing the evidence in the light most favorable to the
-4- prosecution, any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.” Id. at 161-62 (quoting Banks, 67 Va. App. at 288).
“This familiar standard gives full play to the responsibility of the trier of fact fairly to
resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from
basic facts to ultimate facts.” Maldonado v. Commonwealth, 70 Va. App. 554, 561-62 (2019)
(quoting Burrous v. Commonwealth, 68 Va. App. 275, 279 (2017)). In conducting our analysis,
we are mindful that “determining the credibility of the witnesses and the weight afforded the
testimony of those witnesses are matters left to the trier of fact, who has the ability to hear and
see them as they testify.” Id. (quoting Miller v. Commonwealth, 64 Va. App. 527, 536 (2015)).
Additionally, “circumstantial evidence is competent and is entitled to as much weight as
direct evidence provided that the circumstantial evidence is sufficiently convincing to exclude
every reasonable hypothesis except that of guilt.” Dowden v. Commonwealth, 260 Va. 459, 468
(2000). Circumstantial evidence is not “viewed in isolation.” Brown v. Commonwealth, 54
Va. App. 107, 119 (2009). Rather, the “combined force of many concurrent and related
circumstances, each insufficient in itself, may lead a reasonable mind irresistibly to a
conclusion.” Dowden, 260 Va. 459, at 470; Brown, 54 Va. App. at 119.
To convict appellant of illegal drug possession, the Commonwealth had to prove beyond
a reasonable doubt that appellant was aware of the presence and character of the cocaine and that
he consciously possessed it. See Yerling v. Commonwealth, 71 Va. App. 527, 532 (2020).
“Mere proximity to a controlled drug is not sufficient to establish dominion and control,” but
proximity is a factor to be considered. Id. (quoting Drew v. Commonwealth, 230 Va. 471, 473
(1986). “[P]roof of actual possession is not required; proof of constructive possession will
suffice.” Id. (quoting Walton v. Commonwealth, 255 Va. 422, 426 (1998)). “Constructive
possession may be established when there are ‘acts, statements, or conduct of the accused or -5- other facts or circumstances which tend to show that the [accused] was aware of both the
presence and character of the substance and that it was subject to his dominion and control.’” Id.
(quoting Drew, 230 Va. at 473).
In finding appellant guilty of possessing cocaine with the intent to distribute, the trial
court noted that, when examining “the whole circumstances,” appellant continued to drive his
vehicle after Officer Pacifico initiated the traffic stop, the appellant admitted there was marijuana
in the vehicle, and Officer Pacifico observed unusual movement while appellant was still in the
vehicle. The court also noted the officers had viewed the area where the cocaine was recovered
several times and that Officer Burton immediately saw two bags on the ground after he heard a
thud in that exact area. The court stated, “You have to use a little bit of reasonableness in this.”
The court noted the “amount of drugs on the street” and concluded that it was “unlikely” for the
appellant to be “stand[ing] there and then find the drugs.”
The record supports the trial court’s findings. When Officer Pacifico attempted to stop
appellant’s vehicle, appellant ignored the officer’s signals and continued to drive without pulling
over. After Officer Pacifico stopped the vehicle, he saw appellant reaching down to the right
side of the driver’s seat.
Once appellant exited his car, he reluctantly spread his legs wide enough for a pat down
search after Officer Pacifico repeatedly told him to widen his legs. Appellant’s hesitancy
indicates his knowledge of the cocaine and his desire to conceal it.
Officer Burton was standing next to appellant between a trashcan and the rear of a police
car when he heard a thud from the rubber trashcan. No one else was in the area. Officer Burton
immediately looked to the ground where he saw two plastic bags. Officer Pacifico shone his
flashlight on the ground, illuminating two separate baggies that each contained a white
substance. Both officers had surveyed the area when they previously walked through it, and -6- neither officer had seen anything on the ground before Officer Burton heard the thud. The
trashcan was about eight to nine inches from where appellant stood, and the drugs were four to
six inches from the trashcan.
Here, the trial court, as fact finder, considered appellant’s reluctance to cooperate with
the police, his furtive gestures, the location of the cocaine in close proximity to appellant, and the
fact that the two baggies were not on the ground when the officers first inspected the area. The
evidence clearly reveals appellant was aware of the presence and character of the cocaine and
that he continuously and consciously possessed it until he threw the two baggies to the ground
near the trashcan.
Appellant contends that the evidence did not exclude the “very real possibility” that the
drugs were there prior to appellant being near the trashcan. However, “[t]he Commonwealth is
not required to prove that there is no possibility that someone else may have planted, discarded,
abandoned or placed the drugs” on the ground. Langston v. Commonwealth, 28 Va. App. 276,
286 (1998) (quoting Brown v. Commonwealth, 15 Va. App. 1, 10 (1992) (en banc)). “Whether
[a] hypothesis of innocence is reasonable is itself a ‘question of fact’ subject to deferential
appellate review.” Haskins v. Commonwealth, 44 Va. App. 1, 9 (2004) (citation omitted)
(quoting Emerson v. Commonwealth, 43 Va. App. 263, 277 (2004)). The trial court rejected
appellant’s “hypothesis.” It properly may be inferred that the baggies were dropped when the
officer heard a thud. See Langston, 28 Va. App. at 286 (holding that the evidence sufficiently
proved that the defendant possessed the bag of cocaine found on the floor of a police van after
the defendant had been the only person transported in the van). Further, it reasonably may be
inferred that no one would carelessly or deliberately leave drugs valued at $500 on the ground.
See Watts v. Commonwealth, 57 Va. App. 217, 233 (2010).
-7- The evidence further proved that appellant possessed the cocaine with the intent to
distribute. Proof of intent to distribute drugs often must be shown by circumstantial evidence
when direct proof is not possible. See Burrell v. Commonwealth, 58 Va. App. 417, 434 (2011).
Accordingly, the fact-finder may consider such factors as the quantity of the drugs seized and the presence of equipment or other items related to drug distribution. An expert witness may use these factors to express an opinion on whether a defendant’s possession of drugs was inconsistent with personal use. As with any case, the fact-finder is entitled to make reasonable inferences from the evidence presented at trial to determine whether the defendant possessed drugs with the intent to distribute them.
Id. (citations omitted).
Here, the two baggies contained approximately seven grams of cocaine; one baggie held
1.1186 grams, and the second baggie held 5.92 grams. That there were two separate bags,
containing different amounts of cocaine, indicates possession with an intent to distribute. See
Scott v. Commonwealth, 55 Va. App. 166, 174 (2009) (en banc) (noting the drugs the defendant
possessed were packaged individually in baggie corners); Langston, 28 Va. App. at 286 (same).
The police recovered no paraphernalia indicating appellant personally used cocaine. See Scott,
55 Va. App. at 178-79 (“We have consistently held that the absence of paraphernalia consistent
with use is another factor indicating that the drugs were possessed with the intent to distribute.”).
Detective Winter testified as an expert that, based on his training and experience, the
quantity of drugs recovered was inconsistent with personal use; he explained that he had never
seen a single user with that amount of cocaine. “[Q]uantity, alone, may be sufficient to establish
such intent [to distribute] if it is greater than the supply ordinarily possessed for one’s personal
use.” Cole v. Commonwealth, 294 Va. 342, 361-62 (2017) (holding that the evidence was
sufficient to establish defendant’s intent to distribute cocaine where defendant had “at least five
rocks of cocaine weighing over five grams collectively,” which an expert testified was “at least
-8- five times the amount of cocaine that a typical user would carry”) (quoting Dukes v.
Commonwealth, 227 Va. 119, 122 (1984)).
Given the totality of the circumstances in this case, the trial court did not err in convicting
appellant of possession with the intent to distribute. See Holloway v. Commonwealth, 57
Va. App. 658, 670 (2011) (en banc).
CONCLUSION
The trial court did not err in finding appellant guilty of possession with the intent to
distribute cocaine. Appellant was aware of the presence and character of the cocaine, and the
cocaine was subject to his dominion and control. The evidence also supports the trial court’s
finding that appellant had the intent to distribute the cocaine.
Affirmed.
-9-