Opinion
Record No. 0773-91-2
December 1, 1992
FROM THE CIRCUIT COURT OF HALIFAX COUNTY KENNETH M. COVINGTON, JUDGE DESIGNATE.
Buddy A. Ward for appellant.
Eugene Murphy, Assistant Attorney General (Mary Sue Terry, Attorney General, on brief), for appellee.
Present: Judges Benton, Coleman and Fitzpatrick.
Argued at Richmond, Virginia.
Pursuant to Code § 17-116.010 this opinion is not designated publication.
Wilis Mercy Ray was convicted in a bench trial for possessing cocaine and possessing marijuana with the intent to distribute, in violation of Code § 18.2-248. The trial judge sentenced Ray to concurrent five year terms of imprisonment on each offense, with all but twelve months suspended. Ray's appeal involves only the conviction for possessing marijuana with the intent to distribute. He contends that the evidence is insufficient to establish that he intended to distribute the marijuana. Credible evidence regarding the quantity and packaging of the marijuana seized from Ray's property and the testimony of a narcotics officer that the quantity and packaging were inconsistent with personal use support the fact finder's conclusion that Ray intended to distribute the marijuana. Thus, we find the evidence sufficient to prove Ray's intent to distribute, and we affirm his conviction.
When a defendant challenges the sufficiency of the evidence to support a criminal conviction, on appeal we "view the evidence in the light most favorable to the Commonwealth and accord to the evidence all reasonable inferences fairly deducible therefrom." Traverso v. Commonwealth, 6 Va. App. 172, 176, 366 S.E.2d 719, 721 (1988). The judgment of a trial court sitting without a jury will not be disturbed on appeal "unless it . . . is plainly wrong or without evidence to support it."Josephs v. Commonwealth, 10 Va. App. 87, 99, 390 S.E.2d 491, 497 (1990) (en banc).
In order to convict Ray of the charged offense, the Commonwealth was required to prove beyond a reasonable doubt that he possessed the marijuana with requisite intent to distribute it. Code § 18.2-248; Patterson v. Commonwealth, 215 Va. 698, 699, 213 S.E.2d 752, 753 (1975). The quantity of drugs which an accused possessed is circumstantial evidence relevant to whether he intended to distribute the drugs and "alone, may be sufficient to establish such intent if it is greater than the supply ordinarily possessed for one's personal use." Dukes v. Commonwealth, 227 Va. 119, 122, 313 S.E.2d 382, 383 (1984). The method of packaging drugs is another circumstance which may show whether the drugs are for personal use or whether they are to be distributed, and such evidence is probative of intent to distribute. Servis v. Commonwealth, 6 Va. App. 507, 524, 371 S.E.2d 156, 165 (1988).
Ample credible evidence supports the trial judge's finding that Ray possessed the marijuana found on his property with the intent to distribute it. Ray does not contest that the evidence was sufficient to prove that he possessed the marijuana, only that the evidence failed to prove that he did so with the intent to distribute it. The police recovered 3.74 ounces of marijuana from the outbuilding and vehicle located on Ray's property, an amount which Investigator Richard Loftis, who testified as an expert on practices associated with the distribution of narcotics, stated was inconsistent with the amount which an individual would possess for personal use. Also, Ray presented witnesses at trial who testified that neither Ray nor members of his family personally used marijuana. Thus, the evidence tended to disprove that Ray possessed the marijuana for personal use. Ray testified that he was unaware how the marijuana came to be on his property. Based upon this evidence, the trial judge reasonably could have inferred that Ray possessed the marijuana and intended to distribute it. See Dukes, 227 Va. at 122, 313 S.E.2d at 383; Colbert v. Commonwealth, 219 Va. 1, 4, 244 S.E.2d 748, 749 (1978) (noting absence in record of evidence of personal use as basis for rejecting appellant's contention that he was merely storing the marijuana found in his possession).
In addition to the foregoing evidence, the marijuana recovered from Ray's property was packaged in twenty-five small plastic "baggies." Investigator Loftis testified that the packaging in this number of small "baggies" was inconsistent with personal use. Additionally, the police recovered sixteen drying marijuana plants and 1.1 ounces of marijuana seeds, the latter of which Investigator Loftis testified had no commercial value and could only be used to "plant another crop" of marijuana. Based on the manner of packaging and the officer's testimony concerning the significance of the packaging, together with the quantity of drying plants and seeds to grow more marijuana, the trial judge reasonably could infer that Ray possessed the marijuana with the intent to distribute. See Colbert, 219 Va. at 4, 244 S.E.2d at 749; Hambury v. Commonwealth, 3 Va. App. 435, 438, 350 S.E.2d 524, 525 (1986). Accordingly, because the trial judge's finding that Ray had the intent to distribute the marijuana is supported by credible evidence and is not plainly wrong, we reject Ray's challenge to the sufficiency of the evidence.
The conviction is affirmed.
Affirmed.
The evidence in this record did not prove beyond a reasonable doubt that Willis Mercy Ray intended to distribute the marijuana that was found on his property. The evidence proved Ray possessed 3.74 ounces of marijuana. Proof of possession of that quantity is insufficient to support beyond a reasonable doubt an inference of intent to distribute. See Sharp v. Commonwealth, 213 Va. 269, 192 S.E.2d 217 (1972). Possession of a small quantity of a controlled substance does not preclude the inference that it was held for personal use. Dutton v. Commonwealth, 220 Va. 762, 263 S.E.2d 52 (1980). Indeed, "possession of a small quantity creates an inference that the drug was for the personal use of the defendant." Dukes v. Commonwealth, 227 Va. 119, 122, 313 S.E.2d 382, 383 (1984). Proof of specific intent "cannot be based upon surmise or speculation." Patterson v. Commonwealth, 215 Va. 698, 699, 213 S.E.2d 752, 753 (1975).
The only testimony in the record that addresses the question of personal use of the marijuana is the following exchange between the prosecutor and a police officer:
Q: And this quantity and packaged in this way, in your experience is that consistent with personal use only?
A: No, sir.
"Where facts are established which are susceptible of two interpretations, one of which is consistent with the innocence of the accused, the jury or the judge trying the case cannot arbitrarily adopt the interpretation which incriminates him."Williams v. Commonwealth, 193 Va. 764, 772, 71 S.E.2d 73, 77 (1952). "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, 211 Va. 108, 110-11, 175 S.E.2d 275, 276 (1970).
I would reverse the conviction for failure to prove that Ray intended to distribute the marijuana.