Rodney Mosbey, etc. v. Commonwealth

• Court: Court of Appeals of Virginia
• Decided: October 17, 1995
• Docket: 2184932
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Elder and Annunziata Argued at Richmond, Virginia

RODNEY MOSBEY, S/K/A RODNEY O. MOSBEY MEMORANDUM OPINION * BY v. Record No. 2184-93-2 JUDGE LARRY G. ELDER OCTOBER 17, 1995 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF PETERSBURG James F. D'Alton, Jr., Judge Mary Katherine Martin, Senior Assistant Public Defender (Office of the Public Defender, on brief), for appellant.

Robert B. Beasley, Jr., Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.

Rodney O. Mosbey (appellant) appeals his convictions for (1)

possession of cocaine with intent to distribute after having been

previously convicted of the same offense, in violation of Code

§ 18.2-248 and (2) failing to stop his vehicle or offer

assistance at the scene of an accident, in violation of Code

§ 46.2-894. While appellant argues the evidence was insufficient

to support either conviction, we disagree and affirm his

convictions.

I.

FACTS

On April 16, 1993, Officers Carl Moore and Michael Elmore of

* Pursuant to Code § 17-116.010 this opinion is not designated for publication. the Petersburg Police Department observed a Chevrolet Blazer,

driven by appellant, stationary in the middle of a street, five

to ten feet from the intersection. Several persons were observed

leaning into the windows on both sides of the vehicle. As the

officers approached, the persons scattered from the vehicle,

before it quickly accelerated. Officer Moore attempted to

initiate a traffic stop of appellant's vehicle. Even though

Officer Moore activated his vehicle's grill lights, visor lights,

and siren, appellant attempted to evade the officer. A vehicle

pursuit ended when appellant struck a railroad track. Appellant then reversed his vehicle, striking the police car

in the process. Officer Elmore's leg became trapped between the

door and the frame of the police car, and the vehicle sustained

heavy damage. Appellant thereafter exited his vehicle, ran

across the hood of the police car, and began to flee on foot. As

Officer Moore chased him, appellant jumped down an embankment and

into the Appomattox River. While appellant swam across the

river, Officer Moore observed four bags float from beneath

appellant to the top of the water. Officer Moore recovered three

bags, which contained smaller baggies of crack cocaine, but was

not able to retrieve the fourth bag.

Police apprehended appellant when he swam back toward the

shore. Officer Moore found an operational pager, which was

turned on, at the river bank close to where appellant entered the

river. A search of appellant turned up a fourth package

containing twenty-five plastic baggies of cocaine.

2 Officer Christopher Lemire, an expert in the area of drug

packaging and valuation, testified that each individual baggie

was worth ten dollars as packaged; that crack cocaine purchasers

usually possess no more than one or two baggies of crack cocaine;

and that the "high" associated with the consumption of one ten

dollar bag of crack cocaine lasts approximately twenty minutes.

Appellant testified he fled from the police because he

lacked a driver's license and was carrying cocaine for his own

personal use. Appellant stated that he was a cocaine addict who

had smoked cocaine for the last seven to eight years; that

although one could use up to 200 to 300 ten dollar packets of

cocaine daily, the most he used was seventy; and that he could

obtain cocaine for cheaper amounts of money if he bought it in

bulk quantities. Appellant denied owning a pager. A jury convicted appellant on both charges.

II.

POSSESSION OF COCAINE WITH INTENT TO DISTRIBUTE

Appellant concedes the evidence was sufficient to prove he

possessed the cocaine. "This case therefore presents the

question whether the facts proven by the Commonwealth established

intent to distribute rather than mere possession for personal

use." Wells v. Commonwealth, 2 Va. App. 549, 551, 347 S.E.2d

139, 140 (1986). After reviewing the record, we hold that

sufficient evidence existed for the jury to find appellant guilty

beyond a reasonable doubt of possessing cocaine with intent to

3 distribute.

On appeal, the evidence must be viewed in the light most

favorable to the Commonwealth and be given all reasonable

inferences fairly deducible therefrom. Higginbotham v.

Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975). "The

jury's verdict will not be disturbed on appeal unless it is

plainly wrong or without evidence to support it." Traverso v.

Commonwealth, 6 Va. App. 172, 176, 366 S.E.2d 719, 721 (1988). In order to support appellant's conviction, the Commonwealth

needed to prove beyond a reasonable doubt that he intended to

distribute the cocaine that he possessed. See Patterson v.

Commonwealth, 215 Va. 698, 699, 213 S.E.2d 752, 753 (1975). "The

Commonwealth's evidence of appellant's . . . possession was based

on circumstantial evidence. It is well settled . . . that

'circumstantial evidence is as competent and is entitled to as

much weight as direct evidence, provided it is sufficiently

convincing to exclude every reasonable hypothesis except that of

guilt.'" Shurbaji v. Commonwealth, 18 Va. App. 415, 423, 444

S.E.2d 549, 553 (1994) (citation omitted).

We are reminded that "while no single piece of evidence may

be sufficient [to prove intent], the combined force of many

concurrent and related circumstances, each insufficient in

itself, may lead a reasonable mind irresistibly to a conclusion."

Id. (citations omitted). Circumstances relevant to proof of

4 intent to distribute include the quantity of drugs possessed 1 and

whether large quantities of a drug were packaged for

distribution. Monroe v. Commonwealth, 4 Va. App. 154, 156, 355

S.E.2d 336, 337 (1987); see Servis v. Commonwealth, 6 Va. App.

507, 524, 371 S.E.2d 156, 165 (1988) (circumstance proving intent

to distribute includes the presence of a large, or bulk, quantity

from which smaller packages may have been made up for

distribution). Additionally, paraphernalia commonly used in drug

distribution, such as pagers, may be considered. See Hetmeyer v.

Commonwealth, 19 Va. App. 103, 111, 448 S.E.2d 894, 899 (1994).

In this case, the circumstantial evidence, considered as a

whole and viewed in the light most favorable to the Commonwealth,

excludes all reasonable hypotheses of innocence and is therefore

sufficient to support the trial court's finding of guilt. The

evidence shows appellant was parked stationary in the middle of a

street surrounded by persons on both sides of the vehicle who

fled when police approached. Appellant took extreme measures to

elude the police, first by leading them on a high-speed chase in

which their vehicles collided, and then by swimming across a

river. Police recovered four large bags from appellant, each of

which contained twenty-five individually wrapped, smaller

baggies. Police also found an operational pager near appellant's

1 Even possession of a small quantity of a drug, "when considered with other circumstances, may be sufficient to establish an intent to distribute." Servis v. Commonwealth, 6 Va. App. 507, 524, 371 S.E.2d 156, 165 (1988).

5 entry route into the river.

Expert testimony from Officer Lemire revealed (1) each

baggie contained a "hit" of crack cocaine; (2) each baggie was

the size normally sold on the street for ten dollars; (3) both

the method of packaging and the quantity of appellant's cocaine

were inconsistent with personal use; (4) most purchasers of crack

cocaine possess no more than one or two "hits" of crack cocaine;

and (5) appellant possessed a "large" amount of cocaine. 2

While appellant provided explanations for his possession of

the cocaine, his past personal usage, and how he acquired the

cocaine in bulk quantities for personal use, it was within the

jury's province to assess his credibility and the weight to be

given his testimony. Servis, 6 Va. App. at 525, 371 S.E.2d at

165. The jury may have disbelieved appellant's testimony where

it was inherently improbable or inconsistent with circumstances

in evidence. Id.

III.

FAILING TO STOP AT SCENE OF AN ACCIDENT

We hold that sufficient evidence supported beyond a

reasonable doubt appellant's conviction for misdemeanor failure

to stop at the scene of an accident. 2 The Commonwealth presented expert testimony on drug usage and packaging in order to comply with Hudak v. Commonwealth, 19 Va. App. 260, 263, 450 S.E.2d 769, 771 (1994), where we stated that expert testimony is necessary where a jury is confronted with issues that "cannot be determined intelligently from deductions made and inferences drawn on the basis of ordinary knowledge, common sense, and practical experience."

6 A misdemeanor conviction under Code § 46.2-894 requires the

driver of any vehicle involved in an accident in which an

attended vehicle is damaged to immediately stop and report the

accident to the police or supply his name and other pertinent

information to another driver involved in the accident. The

Commonwealth has the burden of showing that the accused

"possessed actual knowledge of the accident [] and such knowledge

of injury [or property damage] which would be attributed to a

reasonable person under the circumstances of the case." Kil v.

Commonwealth, 12 Va. App. 802, 811, 407 S.E.2d 674, 679 (1991).

In this case, it is undisputed that appellant knew his

Blazer and the police vehicle collided. Testimony from the

police officers revealed their vehicle sustained heavy damage on

its side panels and doors after it became "locked together" with

appellant's Blazer. Furthermore, appellant left footprints on

the police vehicle's hood after he exited the Blazer and ran

across the police vehicle toward the river. From these

circumstances, the jury could infer that appellant knew the

police vehicle sustained property damage. Appellant's failure to

stop and render assistance in the matter support his misdemeanor

conviction.

Accordingly, we affirm the convictions.

Affirmed.

7 Benton, J., concurring and dissenting.

I concur in Part III and agree that the evidence was

sufficient to prove beyond a reasonable doubt that Mosbey failed

to stop at the scene of the accident in violation of Code

§ 46.2-894. However, I dissent from the remainder of the opinion

because although the evidence was sufficient to prove that Mosbey

possessed cocaine, the evidence failed to prove beyond a

reasonable doubt that Mosbey possessed the cocaine with the

intent to distribute it. The principle is well established that

when "the Commonwealth's evidence of intent to distribute is

wholly circumstantial, 'all necessary circumstances proved must

be consistent with guilt and inconsistent with innocence and

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

Commonwealth, 2 Va. App. 549, 551, 347 S.E.2d 139, 140 (1986)

(quoting Inge v. Commonwealth, 217 Va. 360, 366, 228 S.E.2d 563,

567 (1976)).

The evidence in this record failed to prove that Mosbey

distributed or intended to distribute the cocaine he possessed.

The evidence did not establish that Mosbey engaged in any

transactions with any of the persons outside his vehicle. His

flight from the police is not inconsistent with the hypothesis

that he was aware that he possessed cocaine, an illegal

substance, for his personal use. The Commonwealth's evidence

established that users of cocaine received discounts when

purchasing twenty bags and more of cocaine and that a user could

8 purchase a bag of cocaine, such as seized from Mosbey, with

twenty-five "hits." The Commonwealth's evidence further

established that a user would get a better price if the user

purchased cocaine in such quantity.

Although an officer testified that most cocaine users that

he had arrested possessed only one or two "hits", in light of the

other testimony in the case, that testimony does not provide a

basis from which the jury could have inferred beyond a reasonable

doubt that the cocaine Mosbey possessed was inconsistent with his

personal use. Indeed, none of the Commonwealth's evidence was

inconsistent with Mosbey's evidentiary hypothesis that he

purchased the cocaine at a discount for his personal use. It is

elementary that "possession and ownership may imply intent to use

rather than intent to distribute." Hunter v. Commonwealth, 213

Va. 569, 571, 193 S.E.2d 779, 780 (1973). Moreover, the

principle is well established that the "[e]xistence of the intent

. . . cannot be based upon surmise or speculation." Patterson v. Commonwealth, 215 Va. 698, 699, 213 S.E.2d 752, 753 (1975).

Based upon the evidence in this record, in particular the

testimony of the Commonwealth's expert, "[i]t is just as

plausible that [Mosbey] . . . purchased the packaged substance

for personal use as it is that . . . [he] packaged [it] . . . for

distribution." Dukes v. Commonwealth, 227 Va. 119, 123, 313

S.E.2d 382, 384 (1984). Thus, I would reverse the conviction

because the evidence was insufficient to prove beyond a

9 reasonable doubt Mosbey's intent to distribute cocaine.