COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Benton and Kelsey Argued at Richmond, Virginia
SHAWN SPRATLEY, S/K/A SHAWN ALEXANDER SPRATLEY MEMORANDUM OPINION * BY v. Record No. 0533-02-2 JUDGE D. ARTHUR KELSEY MAY 20, 2003 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF HOPEWELL James A. Luke, Judge
(Christopher B. Ackerman, on brief), for appellant. Appellant submitting on brief.
Amy L. Marshall, Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.
Shawn Alexander Spratley claims that the trial court lacked
sufficient evidence to find him guilty beyond a reasonable doubt
of possessing cocaine with intent to distribute in violation of
Code § 18.2-248(A). We disagree and affirm the conviction.
I.
On appeal, we review the evidence "in the light most
favorable to the Commonwealth." Morrisette v. Commonwealth, 264
Va. 386, 389, 569 S.E.2d 47, 50 (2002). That principle requires
us to "discard the evidence of the accused in conflict with that
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. of the Commonwealth, and regard as true all the credible
evidence favorable to the Commonwealth and all fair inferences
that may be drawn therefrom." Holsapple v. Commonwealth, 39
Va. App. 522, 528, 574 S.E.2d 756, 758-59 (2003) (en banc)
(citation omitted); see also Wactor v. Commonwealth, 38 Va. App.
375, 380, 564 S.E.2d 160, 162 (2002).
While patrolling in separate police cruisers, Hopewell
Police Sergeant James Hamilton and Detective George Burgess
received a dispatch to be on the lookout for Spratley, a "wanted
subject" that police believed would be in a particular vehicle
at a gas station in Hopewell. The officers drove to the gas
station and stopped the vehicle described in the dispatch. They
ordered the driver and Spratley, a passenger, to exit the
vehicle and raise their hands. The driver immediately complied.
Spratley, however, began "making movements with his left hand"
and appeared to be "lifting" and "digging" to his left in the
center of the vehicle.
As Sergeant Hamilton approached the vehicle, Spratley
turned to face him but continued digging in between the driver
and passenger seat. While Sergeant Hamilton removed Spratley
from the vehicle, Spratley made "a movement with his left hand
towards the center of the vehicle." Moments later, at that
exact location, the officers found a plastic bag containing
twelve individually packaged bag corners of rock cocaine.
- 2 - At trial, Sergeant Hamilton testified as an expert on
personal drug use and concluded that the possession of twelve
individually packaged bags of rock cocaine was inconsistent with
personal use. Although no cell phone, pager or money was found
on Spratley, Sergeant Hamilton testified that experienced drug
dealers no longer carry all three items on their person. Today,
he explained, it is common for these items to be divided among
several individuals to avoid any association of the use of those
items with drug trafficking.
Following the Commonwealth's presentation of the evidence,
Spratley moved to strike the evidence, claiming that it was
insufficient to prove that he either possessed the cocaine or that
he intended to distribute it. The trial judge denied the motion
and found that "the defendant did have constructive possession of
these drugs" and that "twelve individually wrapped rocks of
cocaine are sufficient evidence of possession with intent to
distribute." Spratley received a fifteen-year sentence, with
twelve years and six months suspended.
II.
Under settled principles, we "presume the judgment of the
trial court to be correct" and reverse on sufficiency grounds
only if the trial court's decision is "plainly wrong or without
evidence to support it." Davis v. Commonwealth, 39 Va. App. 96,
99, 570 S.E.2d 875, 876-77 (2002) (citations omitted); see also
- 3 - McGee v. Commonwealth, 25 Va. App. 193, 197-98, 487 S.E.2d 259,
261 (1997) (en banc).
When a jury decides the case, Code § 8.01-680 requires that
"we review the jury's decision to see if reasonable jurors could
have made the choices that the jury did make." Pease v.
Commonwealth, 39 Va. App. 342, 355, 573 S.E.2d 272, 278 (2002)
(en banc). "We let the decision stand unless we conclude no
rational juror could have reached that decision." Id. The same
standard applies when a trial judge sits as the fact finder
because "the court's judgment is accorded the same weight as a
jury verdict." Shackleford v. Commonwealth, 262 Va. 196, 209,
547 S.E.2d 899, 907 (2001).
Put another way, when faced with a challenge to the
sufficiency of the evidence, a reviewing court does not "ask
itself whether it believes that the evidence at the trial
established guilt beyond a reasonable doubt." Jackson v.
Virginia, 443 U.S. 307, 318-19 (1979) (emphasis in original and
citation omitted). 1 Instead, the relevant question is whether
"any rational trier of fact could have found the essential
1 Unless the fact finder acted unreasonably, we consider it our duty not to "substitute our judgment for that of the trier of fact, even were our opinion to differ." Wactor, 38 Va. App. at 380, 564 S.E.2d at 162 (citing Commonwealth v. Presley, 256 Va. 465, 466, 507 S.E.2d 72, 72 (1998)); see also Dowden v. Commonwealth, 260 Va. 459, 467, 536 S.E.2d 437, 467 (2000); Pease, 39 Va. App. at 355, 573 S.E.2d at 278; Harris v. Commonwealth, 38 Va. App. 680, 691, 568 S.E.2d 385, 390 (2002).
- 4 - elements of the crime beyond a reasonable doubt." Id. at 319
(emphasis in original). This deference applies not only to the
historical facts themselves, but the inferences from those facts
as well. "The inferences to be drawn from proven facts, so long
as they are reasonable, are within the province of the trier of
fact." Hancock v. Commonwealth, 12 Va. App. 774, 783, 407
S.E.2d 301, 306 (1991).
A.
Spratley first contends that the trial court erred in
finding that he constructively possessed cocaine. We disagree.
The evidence presented by the Commonwealth was sufficient to
support the trial court's decision.
To convict an individual of illegally possessing drugs, the
Commonwealth must prove that the defendant possessed an illicit
substance and appreciated its illegal "nature and character."
Birdsong v. Commonwealth, 37 Va. App. 603, 607, 560 S.E.2d 468,
470 (2002). The Commonwealth can establish constructive
possession through "evidence of acts, statements, or conduct of
the accused or other facts or circumstances which tend to show
that the defendant was aware of both the presence and character
of the substance and that it was subject to his dominion and
control." Id. at 607-08, 560 S.E.2d at 470 (quoting Glasco v.
Commonwealth, 26 Va. App. 763, 774, 497 S.E.2d 150, 155 (1998)).
- 5 - Viewed in the light most favorable to the Commonwealth,
Spratley's suspicious movements and close proximity to the
cocaine provide sufficient evidence to support the trial court's
finding that he constructively possessed the cocaine.
Immediately upon approaching the vehicle, Sergeant Hamilton and
Detective Burgess observed Spratley "lifting" and "digging" in
between the driver and passenger seat. While being pulled from
the vehicle, Spratley "made a movement with his left hand
towards the center of the vehicle" —— the very area where,
moments later, the officers discovered the narcotics in plain
view.
The trial judge, as fact finder, was entitled to infer from
the evidence that Spratley was attempting to hide the cocaine
and, therefore, knew of its nature and character. See, e.g.,
Brown v. Commonwealth, 5 Va. App. 489, 492, 364 S.E.2d 773, 774
(1988) ("While mere proximity to a controlled substance is
insufficient to establish possession, it is a factor to consider
when determining whether the accused constructively possessed
drugs."); Collins v. Commonwealth, 13 Va. App. 177, 178, 409
S.E.2d 175, 175 (1991) (finding sufficient evidence to prove
constructive possession where defendant "made a throwing motion
under the vehicle with his right arm").
- 6 - B.
Spratley also claims that the evidence fails to prove that
he intended to distribute the cocaine. Again, we disagree.
Absent direct evidence of drug distribution, "intent to
distribute 'must be shown by circumstantial evidence.'" Askew
v. Commonwealth, 40 Va. App. 104, 108, 578 S.E.2d 58, 60 (2003)
(quoting Servis v. Commonwealth, 6 Va. App. 507, 524, 371 S.E.2d
156, 165 (1988)). "Circumstantial proof of a defendant's intent
includes the quantity of the drugs discovered, the packaging of
the drugs, and the presence or absence of drug paraphernalia."
Askew, 40 Va. App. at 109, 578 S.E.2d at 61 (quoting Shackleford
v. Commonwealth, 32 Va. App. 307, 327, 528 S.E.2d 123, 133
(2000) (citations omitted), aff'd, 262 Va. 196, 547 S.E.2d 899
(2001)). To be sure, "the absence of paraphernalia suggestive
of personal use . . . is regularly recognized as a factor
indicating an intent to distribute." Askew, 40 Va. App. at 108,
578 S.E.2d at 60 (quoting Welshman v. Commonwealth, 28 Va. App.
20, 37, 502 S.E.2d 122, 130 (1998) (en banc)) (internal brackets
omitted).
The amount of drugs seized from an individual can itself be
a dispositive factor. "'Possession of a quantity greater than
that ordinarily possessed for one's personal use may be
sufficient to establish an intent to distribute it.'" Askew, 40
Va. App. at 109, 578 S.E.2d at 60-61 (quoting Gregory v.
- 7 - Commonwealth, 22 Va. App. 100, 110, 468 S.E.2d 117, 122 (1996)
(finding sufficient evidence of intent to distribute based on
possession of seven baggies containing a total of 3.7 grams of
cocaine), and Iglesias v. Commonwealth, 7 Va. App. 93, 110, 372
S.E.2d 170, 180 (1988) (en banc)). "Indeed, quantity, when
greater than the supply ordinarily possessed by a narcotics user
for his personal use, is a circumstance which, standing alone,
may be sufficient to support a finding of intent to distribute."
Hunter v. Commonwealth, 213 Va. 569, 570, 193 S.E.2d 779, 780
(1973).
Expert testimony plays a leading role in the presentation
of this evidence. "Expert testimony, usually that of a police
officer familiar with narcotics, is routinely offered to prove
the significance of the weight and packaging of drugs regarding
whether it is for personal use." Askew, 40 Va. App. at 109, 578
S.E.2d at 61 (quoting Shackleford, 32 Va. App. at 327, 528
S.E.2d at 133); see also Davis v. Commonwealth, 12 Va. App. 728,
733, 406 S.E.2d 922, 925 (1991).
We conclude that the trial court was not plainly wrong in
finding the evidence sufficient to prove Spratley intended to
distribute the drugs he possessed. Spratley's bag contained
twelve individually wrapped cocaine "rocks" commonly distributed
in the retail drug trade. These rocks, in aggregate, weighed
2.451 grams. Testifying as an expert on the characteristics of
drug users, Sergeant Hamilton explained that such an amount was
- 8 - inconsistent with personal use. Even when on a "binge,"
Hamilton testified, crack cocaine users "normally don't purchase
12 rocks at a time."
Possessing drugs in an amount "greater than that ordinarily
possessed for one's personal use may be sufficient to establish
an intent to distribute." Castaneda v. Commonwealth, 7 Va. App.
574, 584, 376 S.E.2d 82, 87 (1989) (en banc). Sergeant Hamilton
stated that crack users do not typically inventory narcotics for
future use. Drug dealers do. We have held that even a lesser
amount of drugs is probative of an intent to distribute. See
Christian v. Commonwealth, 33 Va. App. 704, 716, 536 S.E.2d 477,
483 (2000) (en banc) (2.3 grams); Welshman, 28 Va. App. at 37,
502 S.E.2d at 130 (five to six pieces totaling 1.44 grams);
Poindexter v. Commonwealth, 16 Va. App. 730, 734-35, 432 S.E.2d
527, 530 (1993) (1.39 grams); cf. Gregory, 22 Va. App. at 110,
468 S.E.2d at 122 (3.4 grams in seven baggies).
In this case, the officers did not find, either on Spratley
or in his vehicle, any cocaine user paraphernalia, such as crack
stems or smoking pipes. See Askew, 40 Va. App. at 108, 578
S.E.2d at 60 (recognizing the "absence of paraphernalia
suggestive of personal use" as a factor indicating an intent to
distribute). Nor did Spratley appear to be under the influence
of any narcotics at the time of his arrest. In addition, no
evidence suggested Spratley had used crack cocaine in the
vehicle prior to his arrest. See Colbert v. Commonwealth, 219
- 9 - Va. 1, 4, 244 S.E.2d 748, 749 (1978) ("[N]othing in the record
suggests that the defendant personally used marijuana.").
While the officers did not find large sums of money at the
time of his arrest, this does not end our inquiry. Possession of
large sums of cash, especially in small denominations, suggests
on-going efforts at distribution. White v. Commonwealth, 25
Va. App. 662, 668, 492 S.E.2d 451, 454 (1997) (en banc). That
inference, however, presupposes the seller has already begun —— at
the time of his arrest —— the process of reselling his inventory.2
If arrested between the wholesale purchase and the retail resale,
the dealer may have little, if any, money on him. Thus, while
possession of large sums of money permits an inculpatory
inference, the absence of large sums does not render all other
incriminating evidence insufficient as a matter of law.
Finally, Spratley argues that the absence of any cell phones
or pagers or large sums of money found collectively in his
possession negates any evidence of intent to distribute. As
Sergeant Hamilton testified, however, in recent years drug
traffickers at the street level have segmented their operations:
"[A] lot of times what we are dealing with now is there is a
2 See, e.g., Colbert, 219 Va. at 4, 244 S.E.2d at 749 (large amount of cash raised inference that defendant had "consummated numerous sales" prior to his arrest); Langston v. Commonwealth, 28 Va. App. 276, 286, 504 S.E.2d 380, 385 (1998) ("The trial court could have inferred this money was the fruit of several drug transactions.").
- 10 - person holding the money. Maybe a person who is holding the drugs
and somebody else could be using the cell phone and the pager.
That way not all three items or all four or however many items,
are not found on one person."
IV.
In sum, the evidence supports the trial court's finding that
Spratley possessed cocaine with intent to distribute in violation
of Code § 18.2-248(A). We thus affirm the conviction.
Affirmed.
- 11 - Benton, J., dissenting.
The evidence failed to prove Shawn Alexander Spratley
actually possessed the cocaine the police officer found in the
vehicle that was being driven by another man. I would hold that
the evidence was insufficient to prove beyond a reasonable doubt
that Spratley had constructive possession of the cocaine and,
furthermore, certainly failed to prove he had an intent to
distribute the cocaine.
When, as here, the Commonwealth is required to prove beyond
a reasonable doubt that an accused constructively possessed a
controlled substance, "the Commonwealth must point to evidence
of acts, statements, or conduct of the accused or 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." Powers v. Commonwealth,
227 Va. 474, 476, 316 S.E.2d 739, 740 (1984). Furthermore, Code
§ 18.2-250 provides that "[u]pon the prosecution of a person
[for possession of a controlled substance], ownership or
occupancy of . . . [a] vehicle upon or in which a controlled
substance was found shall not create a presumption that such
person either knowingly or intentionally possessed such
controlled substance."
We apply well established principles when testing the
sufficiency of circumstantial evidence.
- 12 - "[I]f the proof relied upon by the Commonwealth is wholly circumstantial, as it here is, then to establish guilt beyond a reasonable doubt all necessary circumstances proved must be consistent with guilt and inconsistent with innocence. They must overcome the presumption of innocence and exclude all reasonable conclusions inconsistent with that of guilt. To accomplish that, the chain of necessary circumstances must be unbroken and the evidence as a whole must satisfy the guarded judgment that both the corpus delicti and the criminal agency of the accused have been proved to the exclusion of any other rational hypothesis and to a moral certainty."
Clodfelter v. Commonwealth, 218 Va. 619, 623, 238 S.E.2d 820,
822 (1977) (citation omitted).
The trial judge had to speculate to conclude that Spratley
possessed the bag of cocaine that "was lying on top of the seat
. . . [and] somewhat underneath the catty corner of the
armrest." No evidence directly proved Spratley possessed the
cocaine. Indeed, the officer testified that he could not see
Spratley's hands. Thus, the testimony that Spratley had reached
to the left side of the vehicle indicates only a suspicious
circumstance, not constructive possession. See United States v.
Blue, 957 F.2d 106, 107-08 (4th Cir. 1992); Scruggs v.
Commonwealth, 19 Va. App. 58, 61-62, 448 S.E.2d 663, 665 (1994).
"[C]ircumstances of suspicion, [however,] no matter how grave or
strong, are not proof of guilt sufficient to support a verdict
of guilty. The actual commission of the crime by the accused
- 13 - must be shown by evidence beyond a reasonable doubt to sustain
his conviction." Clodfelter, 218 Va. at 623, 238 S.E.2d at 822.
In short, the evidence in this case failed to establish the
cocaine was not under the armrest when Spratley reached to his
left, and it clearly failed to establish the cocaine did not
belong exclusively to the driver, who was the owner of the
vehicle. "Whenever the evidence leaves indifferent which of
several hypotheses is true, or merely establishes only some
finite probability in favor of one hypothesis, such evidence
does not amount to proof of guilt beyond a reasonable doubt."
Sutphin v. Commonwealth, 1 Va. App. 241, 248, 337 S.E.2d 897,
900 (1985).
The necessity to prove guilt beyond a reasonable doubt is
illustrated by prior holdings. For example, in Crisman v.
Commonwealth, 197 Va. 17, 87 S.E.2d 796 (1955), the police
officer who detained the occupants of a car testified that he
had been watching a house where illegal activities were
suspected, that the car stopped in front of the house, and that
the two defendants entered the house, remained a short time, and
reentered the car. When the officer stopped the car, it was
occupied by three individuals in the front seat and the two
defendants in the rear seat. All the occupants denied
possession of the heroin that was on floor in front of the rear
seat. The Supreme Court held that the evidence was insufficient
to sustain a conviction for drug possession, noting that any one
- 14 - of the five men in the vehicle could have dropped the heroin on
the floor, or it could have been placed there earlier by some
unknown party, and that no proof established ownership of the
heroin or identity of the person who placed it on floor of the
car. Id. at 20, 87 S.E.2d at 798-99. In reversing the
conviction, the Supreme Court explained that "our system of law
[requires] that before life or liberty is exacted the evidence
shall leave no reasonable doubt of the defendant's guilt." Id.
at 21, 87 S.E.2d at 799.
"Possession with intent to distribute is a crime which
requires 'an act coupled with a specific intent.'" Stanley v.
Commonwealth, 12 Va. App. 867, 869, 407 S.E.2d 13, 15 (1991) (en
banc) (citation omitted). "It is elementary that where, as
here, an indictment charges an offense which consists of an act
combined with a particular intent, proof of the intent is
essential to conviction." Patterson v. Commonwealth, 215 Va.
698, 699, 213 S.E.2d 752, 753 (1975). Moreover, the
Commonwealth must prove specific intent, an element of the
charged offense, beyond a reasonable doubt. See Jackson v.
Virginia, 443 U.S. 307, 315-16 (1979); In re Winship, 397 U.S.
358, 363 (1970). Therefore, "[e]xistence of the intent . . .
cannot be based upon surmise or speculation." Patterson, 215
Va. at 699, 213 S.E.2d at 753.
- 15 - The principle is well established in Virginia that a
relatively small quantity of cocaine warrants the inference that
an accused possessed it for personal use. See Dukes v.
Commonwealth, 227 Va. 119, 122, 313 S.E.2d 382, 383 (1984). The
police seized only 2.45 grams of cocaine. Moreover, the officer
testified that any user of cocaine could buy twelve "rocks at
one time, packaged the exact same . . . way." Thus, as in
Dukes, "[t]he mode of packaging [of the cocaine] and the way the
[package was] hidden are as consistent with possession for
personal use as they are with intent to distribute." 227 Va. at
123, 313 S.E.2d at 384. In addition, the officer testified that
the twelve pieces of cocaine he seized could be consumed "four
in a day" by a user. Thus, the evidence proved a user could
consume the seized cocaine within three days. No evidence
indicated an intent to distribute. I would hold, therefore,
that this evidence manifestly failed to prove an intent to
- 16 -