Troy Anthony Burke v. Commonwealth

• Court: Court of Appeals of Virginia
• Decided: September 5, 1995
• Docket: 1355944
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Coleman and Fitzpatrick Argued at Alexandria, Virginia

TROY ANTHONY BURKE MEMORANDUM OPINION * BY v. Record No. 1355-94-4 JUDGE JAMES W. BENTON, JR. SEPTEMBER 5, 1995 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY Herman A. Whisenant, Jr., Judge

James P. Griffin (Griffin & Griffin, P.C., on brief), for appellant. Steven Andrew Witmer, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.

Troy Anthony Burke was convicted as a principal in the

second degree for (a) possession of cocaine with intent to

distribute, in violation of Code § 18.2-248, and (b) possession

of cocaine with intent to distribute on public property within

1,000 feet of a school, in violation of Code § 18.2-255.2. He

contends on this appeal that the evidence was insufficient to

prove beyond a reasonable doubt that he was guilty as a principal

in the second degree. For the reasons stated below, we reverse

the convictions.

I.

The evidence proved that a police officer observed two

vehicles travelling at a high rate of speed and stopped one of

the vehicles 45 feet from a high school. The officer told Burke,

* Pursuant to Code § 17-116.010 this opinion is not designated for publication. the driver of one of the vehicles, that he was under arrest for

reckless driving and ordered Burke and Daniel Dixon, the

passenger, to exit the vehicle. As the officer was conducting a

search of Burke's person for weapons, he noticed a bulge in

Burke's right front pants pocket and removed it. Burke began to

struggle with the officer. During the struggle, the package

landed in the street. It contained 2.83 grams of cocaine in a

solid form. Burke yelled to Dixon "to go get the stuff." The

officer told Dixon not to move, and he recovered the package.

The officer searched the vehicle and found no paraphernalia that

was consistent with drug distribution or use. Burke testified that when the officer was approaching his

vehicle, Dixon asked him "to hold [the package of cocaine]

because he did not want to [be] charge[d]." Burke testified that

he knew Dixon was "well known as a drug dealer," knew the package

contained cocaine, and intended to return the package to Dixon.

The trial judge found that Burke had accepted the package from

Dixon and based upon that finding found Burke guilty as a

principal in the second degree on both charges.

II.

"A principal in the second degree is one who is not only

present at a crime's commission, but one who also commits some

overt act, such as inciting, encouraging, advising, or assisting

in the commission of the crime or shares the perpetrator's

criminal intent." Moehring v. Commonwealth, 223 Va. 564, 567,

- 2 - 290 S.E.2d 891, 892 (1982). In order to sustain a conviction as

a principal in the second degree, the Commonwealth must prove

that a principal in the first degree committed the underlying

substantive offense. Fleming v. Commonwealth, 13 Va. App. 349,

352, 412 S.E.2d 180, 182 (1991); see also Sutton v. Commonwealth,

228 Va. 654, 665, 324 S.E.2d 665, 671 (1985). "In order for a

person to be a principal in the second degree to a felony, the

individual must 'know or have reason to know of the principal's

criminal intention and must intend to encourage, incite, or aid

the principal's commission of the crime.'" Jones v.

Commonwealth, 15 Va. App. 384, 387, 424 S.E.2d 563, 565 (1992)

(citing McGhee v. Commonwealth, 221 Va. 422, 427, 270 S.E.2d 729,

732 (1980)). "Where, as here, 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) (citing Inge v. Commonwealth, 217 Va. 360, 366, 228 S.E.2d 563, 567 (1976)).

In order to sustain Burke's conviction as a principal in the

second degree, the trial judge had to find beyond a reasonable

doubt that Burke knew that Dixon intended to distribute the

cocaine to others rather than keep it for his own personal use

and that Burke intended to further this crime. No evidence in

the record proves that hypothesis beyond a reasonable doubt.

- 3 - The facts are sufficient to prove that Burke knew that the

package contained cocaine and that he willingly aided Dixon by

holding the package. However, the evidence does not prove beyond

a reasonable doubt that Dixon had the requisite intent to

distribute the cocaine. Although a narcotics detective estimated

that 2.83 grams of cocaine had a "street value" of $700 to

$1,000, his testimony did not exclude the hypothesis of personal

use. The detective only testified that, in his experience, users

of cocaine usually possess only $50 to $100 of rock cocaine at a

time. The cocaine was not packaged for distribution and, as such,

was consistent with personal use. Dukes v. Commonwealth, 227 Va.

119, 123, 313 S.E.2d 382, 384 (1984). Furthermore, the absence

of an unusually large amount of money is also a circumstance

which tended to negate the intent to distribute. Id. Although

quantity alone, when greater than the supply ordinarily possessed

by a drug user, may be sufficient to support an intent to

distribute, possession of a small quantity creates an inference

that the drug was for personal use. Wells, 2 Va. App. at 551,

347 S.E.2d at 140. The officer did not testify that $700 worth

of cocaine was an amount "totally inconsistent with personal use

over a period of time." Id. at 553, 347 S.E.2d at 141. At best,

the Commonwealth proved Burke's possession of cocaine.

"Suspicion of guilt is not sufficient for a conviction. The

Commonwealth had the burden to prove beyond a reasonable doubt

- 4 - intent to distribute and having failed to do so, [Burke's]

conviction cannot stand." Wells, 2 Va. App. at 553, 347 S.E.2d

at 141.

Accordingly, we reverse the convictions and remand to the

trial court for a new trial on possession of cocaine, if the

Commonwealth be so advised.

Reversed and remanded.

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