Lead Opinion
Gеrry Carlton Askew appeals his bench trial conviction for possession of cocaine with the intent to distribute in violation of Code § 18.2-248. The sole issue on appeal is whether the evidence is sufficient to support a finding that appellant intended to distribute the cocaine. He posits that the only proven fact which the сourt could have relied upon to support the finding that he intended to distribute cocaine was that he possessed 7.36 grams of crack cocaine, an amount that is not inconsistent, as a matter of law, with personal use. For the reasons that follow, we affirm the conviction.
“On appeal, Ve review the evidence in thе light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom.’ ” Archer v. Commonwealth,
Sergeant Butler and Officer Brown stopрed a car in Portsmouth in which appellant was the front seat passenger. As they approached the car, Butler saw appellant make furtive movements as if he were hiding something. Police arrested appellant based on an outstanding warrant for his arrest. Officer Brown searched appellant incident to the arrest and felt a suspicious item inside appellant’s pants. Sergeant Butler authorized Brown to conduct a strip search of appellant when they arrived at police headquarters. When Brown removed appellant from the cruiser at headquarters, he noticed a plastic bag of a substance he suspectеd to be crack cocaine lying on the front seat where appellant had been sitting. Brown then searched appellant and found $65 in small denomination bills and a pager. Appellant possessed no devices with which to ingest crack cocaine.
The plastic bag recovered from the car seat contаined seven separate plastic bags containing off-white material, which tested positive for crack cocaine. The total amount of crack cocaine weighed 7.36 grams.
At trial, Detective Wright was qualified as an expert in the use and distribution of narcotics. He testified that the street value of 7.36 grams of cocaine was $700. Wright opined that 7.36 grams of crack cocaine, when considered with the cash, pager and lack of a smoking device, was inconsistent with personal use. On cross-examination, Wright stated that a typical user of crack cocaine consumes between two-tenths and one gram per day. Wright added that in the six years he
ANALYSIS
As part of his sufficiency argument, appellant contends Wright’s expert opinion “is itself inconsistent with other expert opinions, from other [expert] police witnesses, in other cases.” Furthermore, because so much variation exists between experts’ opinions in case law as to “the habits of users, then purported [] expert testimony about the consumption habits of users is without value as evidence ... [and] the lack of any common standard among these purported experts ... casts doubt оn the reliability of their ‘expert’ opinions.” Thus, because Wright’s expert opinion as to what constitutes personal use was the only evidence of intent to distribute, other than the quantity which is insufficient as a matter of law, and because his expert opinion is unreliable, appellant argues that his conviction should be reversed.
Proving Intent to Distribute
In cases lacking direct evidence of drug distribution, intent to distribute “must be shown by circumstantial evidence.” Servis v. Commonwealth,
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. Expert testimony, usually that of a police officer familiar with narcotiсs, is routinely offered to prove the significance of the weight and packaging of drugs regarding whether it is for personal use.
Shackleford, v. Commonwealth,
Expert Testimony
“An expert witness may express an opinion relative to the existence or nonexistence of facts not within common knowledge, but ‘the admission of expert opinion upon an ultimate issue of fact is imрermissible because it invades the function of the fact finder.’ ” Zelenak v. Commonwealth,
As we noted in Shackleford,
The quantum of evidence necessary to prove an intent to distribute depends on the fаcts and circumstances of each case. In addition to evidence proving the quantity and type of drug possessed, the Commonwealth may introduce opinion testimony from law enforcement officers familiar with the habits and propensities of local drug users as to what amounts are inconsistent with personal use.
Appеllant’s argument is primarily that Wright’s expert opinion is unreliable. He says that Wright’s opinion was that possession of 7.36 grams of crack cocaine, a pager and $65 in small bills was inconsistent with personal use, and that evidence was not sufficient to prove an intent to distribute.
As we have previously noted, Wright’s expert testimony is admissible and is not unreliable as a matter of law. His opinion that those factors he considered are inconsistent with personal use can be considered by the fact finder together with other evidence to determine whether the Commonwealth’s evidence proves beyond a reasonable doubt the intent to distribute. The record contains еvidence, in addition to Wright’s expert opinion, to support the finding that appellant possessed the cocaine with the intent to distribute it. The police found seven individually wrapped packets of crack cocaine weighing 7.36 grams and having a street value of $700. Appellant’s possession of $65 in currency in small denominatiоns and a pager, a device recognized as a tool of the drug trade, “the possession of which [is] probative of intent to distribute,” are additional facts together with Wright’s opinion testimony that support the finding of an intent to distribute. Glasco,
Affirmed.
Notes
. For a discussion on the use of expert testimony to prove intent to distribute, see Thomas M. Fleming, Annotation, Admissibility, in Criminal Prosecution, of Expert Opinion Allegedly Stating Whether Drugs Were Possessed with Intent to Distribute State Cases,
. Appellant argues on brief that the trial judge erroneously relied on his prior experience in trying drug cases to find that appellant did not possess the drugs for personal use, but with the intent to distribute. The trial judgе stated:
The testimony of Mr. Wright is based upon [his] experience. The Court sees that testimony, too-and while that’s not evidence in the case, the things that we see in court day in and day out certainly would or perhaps would not give some credibility to the expert testimony that we sometimes receive in the these cases.
Without determining whether the judge’s statement constituted a finding or ruling, appellant did not оbject to the trial judge’s statement. Accordingly, appellant is precluded from challenging the finding or ruling on appeal. See Rule 5A:18. Moreover, the record reflects no reason to invoke the good cause or ends of justice exceptions to Rule 5A:18.
Dissenting Opinion
dissenting.
“Possession with intent to distribute is a crime which requires ‘an act coupled with a specific intent.’ ” Stanley v. Commonwealth,
The evidence proved that when the police arrested Gerry Carlton Askew he possessed 7.36 grams of “crack cocaine,” sixty five dollars, and a pager. The principle is well established that “possession of a small quantity [of a drug] creates an inference that the drug was for the personal use of the defendant.” Dukes v. Commonwealth,
The quantity of the drugs, coupled with the devices used to — the quantity of the drugs, the pager, and the money combined together would be inconsistent with what a user— inconsistent with strict personal use.
To further elaborate on the basis of his opinion, the detective testified that “the quantity is the most important factor.” He alsо testified, however, that a cocaine user “could use a gram in a day.” He explained this as follows:
Q. How long will one gram usually last a crack head, as you put it?
A. It depends on the amount of the addiction.
Q. In your expert opinion, do you have an opinion on how you say they go back for more?
A. Uh-huh. I mean, you could use a gram in a day.
Q. If he can use a gram a day, he can use about 7 grams in a week?
A. Yeah, and he could use 360 grams in a year.
Q. Right. So pretty much — so is it your testimony that people with cocaine addictions usually only buy it on a daily basis?
A. Usually.
Q. Enough to get them through the day?
A. Yes, ma’am. Actually, not enough to get them through a day. Enough to get them through maybe an hour.
Q. That would depend on whether or not they have money or not; is that right? You say they don’t normally stock up for the winter, so to speak?
A. Correct. It definitely dеpends on the money because they’re not giving it away.
Q. Someone with more money could obviously buy more crack and still have it for personal use; is that right?
A. Yes, ma’am.
The evidence also did not prove Askew was using the pager or had used it while he had the cocaine. Significantly, the officer testified that in his experience with people in general “everyone does [have] pagers [and cell phones].” He further acknowledged that “[j]ust because a person wears a pager on their belt doesn’t necessarily make them a narcotics distributor.” No evidence in this case proved a connection between Askew’s рossession of the pager and his intent in possessing the cocaine.
Similarly, no evidence proved a connection between Askew’s money and the cocaine. The officer acknowledged that the $65 Askew had in his possession was not a large amount of currency. Neither the detective nor any other witness testified thаt Askew exchanged any item in his possession for money. Moreover, the denominations of “two 10s, seven $5 bills, and ten $1 bills” was not an unusual mixture for this small amount of currency.
The absence of paraphernalia to use the cocaine likewise does not establish that Askew intended to distribute the cocaine. Possession for personаl use does not connote immediate use or require use in a public place.
The officer’s testimony was patently, internally inconsistent regarding the factors that were suggestive of an intent to distribute and was susceptible of two interpretations. The rule is long standing that “ ‘where a fact is equally susceptible of two interpretations one of which is consistent with the innocence of the accused, [the trier of fact] cannot arbitrarily adopt that interpretation which incriminates him.’ ” Corbett v. Commonwealth,
*115 It is well settled in Virginia that to justify conviction of a crime, it is not sufficient to create a suspicion or probability of guilt, but the evidence must establish the guilt of an accused beyond a reasonable doubt. It must exclude every reasonable hypothesis except that of guilt. The guilt of a party is not to be inferred because the facts are consistent with his guilt, but they must be inconsistent with his innocence.
Cameron v. Commonwealth,
On the evidence in this record, the trial judge had to resort to speculation and surmise to find that Askew possessed the 7.36 grams оf cocaine with the intent to distribute it. The officer’s testimony is unambiguous that a user could consume that quantity within seven days. “It is, of course, a truism of the criminal law that evidence is not sufficient to support a conviction if it engenders only a suspicion or even a probability of guilt. Conviction cannot rest upon conjecture.” Smith v. Commonwealth,
For these reasons, I would reverse the conviction for possession of cocaine with the intent to distribute it, and remand for imposition of an order of conviction on the offense of possession of cocaine.