Opinion
Record No. 0610-93-2
Decided: October 11, 1994
FROM THE CIRCUIT COURT OF HANOVER COUNTY, Richard H. C. Taylor, Judge
Reversed and remanded.
Reginald M. Barley for appellant.
Thomas C. Daniel, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.
Present: Judges Barrow, Koontz and Elder
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
In this appeal, we hold that the evidence was insufficient to support a finding that the defendant possessed cocaine with the intent to distribute it.
The police found a film canister containing 8.17 grams of "chunky" cocaine in a duffle bag in the defendant's bedroom. No paraphernalia was found. No evidence indicated that the amount possessed was consistent with distribution or personal use. Neither a large sum of money nor packaging materials were seized. Evidence of the defendant's intent was limited to the suspicions of those who lived in the same building. The defendant's roommate testified that he shared this room with the defendant for two months prior to the search and that during this time, people came to the apartment looking for the defendant. When he asked the defendant what was going on, the defendant did not explain. Another resident of the apartment testified that he noticed people coming to see the defendant, sometimes visiting his room at odd hours of the night. About two weeks prior to the search, this resident asked the defendant whether he was selling drugs but received no answer. Knick v. Commonwealth, 15 Va. App. 103, 106-07, 421 S.E.2d 479, 481 (1992) (not an adoptive admission by silence).
Viewing the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commonwealth, we conclude that this evidence does not permit a reasonable inference that the defendant intended to distribute the cocaine found in his duffle bag. The testimony of those living in the building with the defendant amounts to no more than "surmise or speculation," an inadequate basis for finding the defendant's intent beyond a reasonable doubt. See Patterson v. Commonwealth, 215 Va. 698, 699, 213 S.E.2d 752, 753 (1975).
For these reasons, we conclude that the evidence, when viewed in the light most favorable to the Commonwealth, does not support a finding that the defendant possessed the cocaine with intent to distribute it. Therefore, we reverse the judgment of conviction and remand the proceeding to the trial court for a new trial on the charge of possession of cocaine, if the Commonwealth so elects.
Reversed and remanded.