COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judge Benton and Senior Judge Duff Argued at Alexandria, Virginia
MICHAEL SUMMERS, S/K/A MICHAEL SCOTT SUMMERS MEMORANDUM OPINION * BY v. Record No. 0166-97-3 CHIEF JUDGE JOHANNA L. FITZPATRICK JUNE 2, 1998 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ROCKINGHAM COUNTY Porter R. Graves, Jr., Judge
Danita S. Alt for appellant.
Ruth Ann Morken, Assistant Attorney General (Richard Cullen, Attorney General, on brief), for appellee.
Michael Scott Summers (appellant) was convicted in a jury
trial of possession with the intent to distribute methamphetamine
in violation of Code § 18.2-248. On appeal he contends the
evidence was insufficient to prove either possession or the
intent to distribute. Finding no error, we affirm the
conviction.
I.
Taken in the light most favorable to the Commonwealth, the
evidence adduced at trial established that on April 30, 1995,
Officer Rob Greer stopped a pickup truck for erratic driving at
the intersection of Routes 42 and 257 in Rockingham County.
Greer smelled the odor of alcohol in the truck and asked the * Pursuant to Code § 17-116.010 this opinion is not designated for publication. driver, Melody Ann Whitmer, to come to his vehicle. Tina
Shifflett, who was Whitmer's sister and a passenger, remained in
her seat in the center of the vehicle. Appellant, also a
passenger and the owner of the truck, remained in his seat on the
right side of the vehicle. Officer Greer asked Whitmer if she
had been drinking, and she admitted having had four or five
beers. She further stated that she had smoked a joint of
marijuana earlier. Greer left Whitmer in the police car,
returned to the truck, and obtained appellant's consent to search
it. The police found the following items in the truck: (1) a
grocery bag wrapped around six plastic sandwich bags of marijuana
under the driver's seat; (2) two plastic sandwich bag corners
containing methamphetamine and tied shut with twist ties tucked
between a package of Marlboro cigarettes and the outside lining
of the package on the passenger side of the floor; (3) a plastic
bag of marijuana on the floor beside the cigarette package; (4)
three individually wrapped sandwich bag corners of
methamphetamine in Whitmer's wallet near the gearshift; (5) a
blue Crown Vic Royal bag containing two smoking devices near the
wallet; (6) empty plastic sandwich bags with the corners cut off;
a plastic bag that contained a cut corner of a plastic bag and
small twist ties; (7) a pager; and (8) address and phone books.
During a pat-down search, Greer recovered $165 in small bills
from appellant. He asked appellant what he did for a living, and
2 appellant replied that he was unemployed. Appellant was arrested
and charged with possession with the intent to distribute
methamphetamine.
At trial, Whitmer testified that the drugs found in her
wallet were not hers. She further testified that earlier in the
evening appellant had supplied her with "methamphetamine [that]
was in a cut off baggie." At the close of the Commonwealth's
case, appellant moved to strike the evidence as insufficient to
support a conviction on the grounds that at least one-third of
the drugs were in Whitmer's wallet and there was no proof that
the drugs were not for personal use. The trial court denied
appellant's motion to strike. The jury convicted appellant of
possession with the intent to distribute methamphetamine. He was
sentenced in accordance with the verdict to five years in prison
and a $500 fine. II.
Appellant contends the Commonwealth failed to prove he
possessed the methamphetamine. He argues the only link between
himself and the methamphetamine was that it was found in his
truck and that this fact was insufficient to establish
constructive possession.
"To sustain a conviction for possession of a controlled
substance . . . the evidence must prove beyond a reasonable doubt
that the accused was aware of the presence and character of the
controlled substance." Jones v. Commonwealth, 17 Va. App. 572,
3 574, 439 S.E.2d 863, 864 (1994). "Ownership of a vehicle where
drugs are found and mere proximity to the drugs . . . are
insufficient alone to prove possession." Scruggs v.
Commonwealth, 19 Va. App. 58, 61, 448 S.E.2d 663, 665 (1994).
However, "[o]wnership or occupancy of a vehicle . . . where illicit drugs are found is a circumstance that may be considered together with other evidence tending to prove that the owner or occupant exercised dominion and control over items in the vehicle . . . in order to prove that the owner or occupant constructively possessed the contraband. Furthermore, proof that a person is in close proximity to contraband is a relevant fact that, depending on the circumstances, may tend to show that, as an owner or occupant of . . . a vehicle, the person necessarily knows of the presence, nature and character of a substance that is found there."
Logan v. Commonwealth, 19 Va. App. 437, 444, 452 S.E.2d 364, 369
(1994) (citing Burchette v. Commonwealth, 15 Va. App. 432, 435,
425 S.E.2d 81, 83 (1992)).
When the sufficiency of the evidence is challenged on
appeal, "'we must view all the evidence in the light most
favorable to the Commonwealth and accord to the evidence all
reasonable inferences fairly deducible therefrom.'" Phillips v.
Commonwealth, 25 Va. App. 144, 155, 487 S.E.2d 235, 240-41 (1997)
(citation omitted). The evidence in the instant case proved that
the police found two cut-corner baggies of methamphetamine in the
Marlboro cigarette package on the floor of the truck near where
appellant had been sitting. Shifflett and Whitmer testified that
4 they smoked other brands of cigarettes. They also testified that
appellant smoked Marlboros and that he had purchased some earlier
that evening. From this testimony, the jury could conclude
beyond a reasonable doubt that the package of Marlboros and the
drugs tucked inside the wrapper belonged to appellant.
Additionally, despite appellant's attempt to impeach Whitmer
as a codefendant, it was within the jury's province as finder of
fact to credit her testimony that appellant had supplied
methamphetamine to her earlier in the evening. See Marshall v.
Commonwealth, 26 Va. App. 627, 633, 496 S.E.2d 120, 123 (1998).
In light of appellant's ownership of the vehicle, his position in
proximity to the drugs, the evidence that he owned the package of
Marlboros, and the testimony that he had given Whitmer drugs that
evening, we hold that the evidence was sufficient to prove beyond
a reasonable doubt that appellant possessed methamphetamine.
III.
Appellant further contends the trial court erred in failing
to strike the evidence regarding the intent to distribute. He
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COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judge Benton and Senior Judge Duff Argued at Alexandria, Virginia
MICHAEL SUMMERS, S/K/A MICHAEL SCOTT SUMMERS MEMORANDUM OPINION * BY v. Record No. 0166-97-3 CHIEF JUDGE JOHANNA L. FITZPATRICK JUNE 2, 1998 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ROCKINGHAM COUNTY Porter R. Graves, Jr., Judge
Danita S. Alt for appellant.
Ruth Ann Morken, Assistant Attorney General (Richard Cullen, Attorney General, on brief), for appellee.
Michael Scott Summers (appellant) was convicted in a jury
trial of possession with the intent to distribute methamphetamine
in violation of Code § 18.2-248. On appeal he contends the
evidence was insufficient to prove either possession or the
intent to distribute. Finding no error, we affirm the
conviction.
I.
Taken in the light most favorable to the Commonwealth, the
evidence adduced at trial established that on April 30, 1995,
Officer Rob Greer stopped a pickup truck for erratic driving at
the intersection of Routes 42 and 257 in Rockingham County.
Greer smelled the odor of alcohol in the truck and asked the * Pursuant to Code § 17-116.010 this opinion is not designated for publication. driver, Melody Ann Whitmer, to come to his vehicle. Tina
Shifflett, who was Whitmer's sister and a passenger, remained in
her seat in the center of the vehicle. Appellant, also a
passenger and the owner of the truck, remained in his seat on the
right side of the vehicle. Officer Greer asked Whitmer if she
had been drinking, and she admitted having had four or five
beers. She further stated that she had smoked a joint of
marijuana earlier. Greer left Whitmer in the police car,
returned to the truck, and obtained appellant's consent to search
it. The police found the following items in the truck: (1) a
grocery bag wrapped around six plastic sandwich bags of marijuana
under the driver's seat; (2) two plastic sandwich bag corners
containing methamphetamine and tied shut with twist ties tucked
between a package of Marlboro cigarettes and the outside lining
of the package on the passenger side of the floor; (3) a plastic
bag of marijuana on the floor beside the cigarette package; (4)
three individually wrapped sandwich bag corners of
methamphetamine in Whitmer's wallet near the gearshift; (5) a
blue Crown Vic Royal bag containing two smoking devices near the
wallet; (6) empty plastic sandwich bags with the corners cut off;
a plastic bag that contained a cut corner of a plastic bag and
small twist ties; (7) a pager; and (8) address and phone books.
During a pat-down search, Greer recovered $165 in small bills
from appellant. He asked appellant what he did for a living, and
2 appellant replied that he was unemployed. Appellant was arrested
and charged with possession with the intent to distribute
methamphetamine.
At trial, Whitmer testified that the drugs found in her
wallet were not hers. She further testified that earlier in the
evening appellant had supplied her with "methamphetamine [that]
was in a cut off baggie." At the close of the Commonwealth's
case, appellant moved to strike the evidence as insufficient to
support a conviction on the grounds that at least one-third of
the drugs were in Whitmer's wallet and there was no proof that
the drugs were not for personal use. The trial court denied
appellant's motion to strike. The jury convicted appellant of
possession with the intent to distribute methamphetamine. He was
sentenced in accordance with the verdict to five years in prison
and a $500 fine. II.
Appellant contends the Commonwealth failed to prove he
possessed the methamphetamine. He argues the only link between
himself and the methamphetamine was that it was found in his
truck and that this fact was insufficient to establish
constructive possession.
"To sustain a conviction for possession of a controlled
substance . . . the evidence must prove beyond a reasonable doubt
that the accused was aware of the presence and character of the
controlled substance." Jones v. Commonwealth, 17 Va. App. 572,
3 574, 439 S.E.2d 863, 864 (1994). "Ownership of a vehicle where
drugs are found and mere proximity to the drugs . . . are
insufficient alone to prove possession." Scruggs v.
Commonwealth, 19 Va. App. 58, 61, 448 S.E.2d 663, 665 (1994).
However, "[o]wnership or occupancy of a vehicle . . . where illicit drugs are found is a circumstance that may be considered together with other evidence tending to prove that the owner or occupant exercised dominion and control over items in the vehicle . . . in order to prove that the owner or occupant constructively possessed the contraband. Furthermore, proof that a person is in close proximity to contraband is a relevant fact that, depending on the circumstances, may tend to show that, as an owner or occupant of . . . a vehicle, the person necessarily knows of the presence, nature and character of a substance that is found there."
Logan v. Commonwealth, 19 Va. App. 437, 444, 452 S.E.2d 364, 369
(1994) (citing Burchette v. Commonwealth, 15 Va. App. 432, 435,
425 S.E.2d 81, 83 (1992)).
When the sufficiency of the evidence is challenged on
appeal, "'we must view all the evidence in the light most
favorable to the Commonwealth and accord to the evidence all
reasonable inferences fairly deducible therefrom.'" Phillips v.
Commonwealth, 25 Va. App. 144, 155, 487 S.E.2d 235, 240-41 (1997)
(citation omitted). The evidence in the instant case proved that
the police found two cut-corner baggies of methamphetamine in the
Marlboro cigarette package on the floor of the truck near where
appellant had been sitting. Shifflett and Whitmer testified that
4 they smoked other brands of cigarettes. They also testified that
appellant smoked Marlboros and that he had purchased some earlier
that evening. From this testimony, the jury could conclude
beyond a reasonable doubt that the package of Marlboros and the
drugs tucked inside the wrapper belonged to appellant.
Additionally, despite appellant's attempt to impeach Whitmer
as a codefendant, it was within the jury's province as finder of
fact to credit her testimony that appellant had supplied
methamphetamine to her earlier in the evening. See Marshall v.
Commonwealth, 26 Va. App. 627, 633, 496 S.E.2d 120, 123 (1998).
In light of appellant's ownership of the vehicle, his position in
proximity to the drugs, the evidence that he owned the package of
Marlboros, and the testimony that he had given Whitmer drugs that
evening, we hold that the evidence was sufficient to prove beyond
a reasonable doubt that appellant possessed methamphetamine.
III.
Appellant further contends the trial court erred in failing
to strike the evidence regarding the intent to distribute. He
argues that the small amount of drugs recovered was consistent
with personal use and the evidence of intent to distribute was
highly speculative. We disagree.
"'Because direct proof of [the] intent [to distribute] is
often impossible, it must be shown by circumstantial evidence.'"
Shears v. Commonwealth, 23 Va. App. 394, 402, 477 S.E.2d 309,
313 (1996) (quoting Servis v. Commonwealth, 6 Va. App. 507, 524,
5 371 S.E.2d 156, 165 (1988)). "The quantity of the controlled
substance is one factor to be considered. A small quantity of
drugs, along with other circumstances, may support a conviction
of possession with intent to distribute." Davis v. Commonwealth,
12 Va. App. 728, 733, 406 S.E.2d 922, 925 (1991). Accord Stanley
v. Commonwealth, 12 Va. App. 867, 869, 407 S.E.2d 13, 14-15
(1991) ("a conviction for possession with the intent to
distribute may be upheld even though the quantity of drugs seized
is consistent with personal use"). "Indeed, where the facts
support a finding that a defendant has recently consummated a
sale or a distribution, that circumstance may support the
inference that the person in possession has an intent to
distribute drugs." Id. at 873-74, 407 S.E.2d at 17.
Whitmer testified that earlier that evening appellant had
cut bags of methamphetamine in his pocket and distributed them to
her and her sister. She identified the packages taken from the
truck to be identical to the ones appellant possessed. Moreover,
each of the two cut-corner baggies in the Marlboro package that
was found under appellant's seat in the truck contained
approximately 0.70 grams of methamphetamine and was tied with a
cut-length twist tie. The officers also found empty baggies with
the corners cut off, cut-corner baggies, and twist ties.
Although the Commonwealth's expert admitted that the amount of
drugs was consistent with personal use, he stated that "people
that buy for personal use don't necessarily repackage their own
6 personal use supply." The expert testified that the presence of
the items such as twist ties and cut corners of baggies was not
consistent with personal use. This circumstantial evidence of an
intent to distribute that flows from the packages, combined with
Whitmer's direct testimony that appellant supplied her with
methamphetamine on the night in question, was sufficient to prove
beyond a reasonable doubt that appellant had the intent to
distribute the methamphetamine in his possession. For the foregoing reasons, the conviction is affirmed.
Affirmed.