Shayquan Quantae Marshall, s/k/a Shayquan Quontae Marshall v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: July 1, 2008
• Docket: 2124072
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Felton, Judges Elder and Beales Argued at Richmond, Virginia

SHAYQUAN QUANTAE MARSHALL, S/K/A SHAYQUAN QUONTAE MARSHALL MEMORANDUM OPINION * BY v. Record No. 2124-07-2 JUDGE LARRY G. ELDER JULY 1, 2008 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND Beverly W. Snukals, Judge

Craig S. Cooley for appellant.

Gregory W. Franklin, Assistant Attorney General (Robert F. McDonnell, Attorney General; Office of the Attorney General, on brief), for appellee.

Shayquan Quantae Marshall (appellant) appeals from his bench trial conviction for

possession of cocaine with intent to distribute in violation of Code § 18.2-248. On appeal, he

contends the evidence was insufficient to prove he possessed the cocaine with the requisite

intent. 1 We hold the evidence was sufficient to support a finding that he intended to distribute

the 9.5-ounce, golf-ball-sized rock of crack cocaine, and we affirm.

Under familiar principles of appellate review, we examine the evidence in the light most

favorable to the Commonwealth, granting to the evidence all reasonable inferences fairly

deducible therefrom. Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. 1 Appellant does not challenge the sufficiency of the evidence to prove he possessed the cocaine. (1975). The judgment of a trial court will be disturbed only if plainly wrong or without evidence

to support it. Id.

“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.” Coleman v. Commonwealth, 226 Va. 31, 53, 307 S.E.2d 864, 876 (1983). In

cases lacking direct evidence of drug distribution, intent to distribute “must be shown by

circumstantial evidence,” Servis v. Commonwealth, 6 Va. App. 507, 524, 371 S.E.2d 156, 165

(1988), such as a person’s conduct and statements, Long v. Commonwealth, 8 Va. App. 194,

198, 379 S.E.2d 473, 476 (1989). Circumstances that shed light on the accused’s specific intent

regarding illegal drugs in his possession include the quantity and method of packaging of the

drugs possessed by him and the presence or absence of drug paraphernalia. Shackleford v.

Commonwealth, 32 Va. App. 307, 327, 528 S.E.2d 123, 133 (2000), aff’d, 262 Va. 196, 547

S.E.2d 899 (2001). “‘Possession of a quantity greater than that ordinarily possessed for one’s

personal use may be sufficient to establish an intent to distribute it.’” Gregory v.

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) (quoting Iglesias v. Commonwealth, 7 Va. App. 93, 110, 372 S.E.2d 170, 180 (1988)

(en banc)); see also Hunter v. Commonwealth, 213 Va. 569, 570, 193 S.E.2d 779, 780 (1973)

(holding proof that the quantity of drugs possessed exceeds an amount normally possessed for

personal use, without more, can be sufficient to show an intent to distribute). Also, “the absence

of any paraphernalia suggestive of personal use . . . [is] regularly recognized as [a] factor []

indicating an intent to distribute.” Welshman v. Commonwealth, 28 Va. App. 20, 37, 502 S.E.2d

122, 130 (1998) (en banc).

-2- Expert testimony may be considered in determining whether a defendant intended to

distribute an illegal substance. Davis v. Commonwealth, 12 Va. App. 728, 733, 406 S.E.2d 922,

925 (1991). “The quantum of evidence necessary to prove an intent to distribute depends on the

facts and circumstances of each case.” Askew v. Commonwealth, 40 Va. App. 104, 110, 578

S.E.2d 58, 61 (2003).

Here, Sergeant Thomas testified that appellant’s possession of 9.5 grams of crack

cocaine, which would have a street value of $950 if sold as single “hits,” was inconsistent with

possession of the drug for personal use. Sergeant Thomas testified that the typical user would

purchase each single hit of less than one-quarter of an ounce in an individually-wrapped baggie

corner for $20, or half that amount for $10, and that a user would typically purchase four or five

such hits at the most because “[t]hey want to come in, get it and get out of the area quickly.

They usually don’t have a lot of money to spend on the cocaine because they’re trying to support

their habit.” He also explained that buyers typically “go back to the same place multiple times of

the day” and that “[i]t’s not an area [where] they want to hang out because of robberies, getting

beat up, most importantly, getting arrested by the police.” He testified that “[t]hrough all of [his]

encounters of talking with buyers and/or sellers,” he had “never encountered [a user] who would

buy 10 grams of cocaine.”

Although the quantity of the drug appellant possessed was not packaged for distribution,

Sergeant Thomas testified that the method of packaging was consistent with appellant’s having

purchased the entire quantity from his supplier and “[being in transit] to a place where you have

scales and your packaging materials.”

Sergeant Thomas admitted that a “severe addict” could consume such a quantity in four

to nine days, but the record contained no evidence to suggest that appellant was a “severe addict”

or even a user of crack cocaine. At the time of appellant’s arrest, he had no device in his

-3- possession with which to ingest the cocaine. Immediately prior to his arrest, he had been

socializing with a group of other young men on a street corner rather than going to another

location to ingest the cocaine as one would expect of a “severe addict.” Further, appellant stated

he was under the influence of marijuana and alcohol, and he showed no signs of crack cocaine

use or withdrawal while in the custody of the police following his arrest.

Finally, while appellant was in the custody of Officer Melton, after he had been told only

that he was under arrest for an “illegal substance” or “narcotic,” appellant “asked if the cocaine

could be dropped to a simple possession.” This statement, viewed in the light most favorable to

the Commonwealth, showed appellant’s acknowledgement that he possessed the cocaine with an

intent to distribute it.

We hold the evidence as a whole, viewed in the light most favorable to the

Commonwealth, supported the trial court’s finding that appellant possessed the cocaine with the

requisite intent to distribute. Thus, we affirm appellant’s conviction.

Affirmed.

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