Opinion
Record No. 1524-93-2
Decided: January 24, 1995
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY, Douglas W. Murphey, Judge Designate
Andrea C. Long (Charles C. Cosby, Jr.; Boone, Beale, Carpenter Cosby, on brief), for appellant.
Thomas C. Daniel, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.
Present: Chief Judge Moon, Judge Bray and Senior Judge Hodges
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
Darrick Lamont Richardson appeals his conviction for possessing cocaine with the intent to distribute. He contends that the evidence was insufficient to prove beyond a reasonable doubt that he constructively possessed the cocaine, or, in the alternative, possessed the cocaine with the intent to distribute. We disagree and affirm the conviction.
"On appeal, we review the evidence in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom." Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987).
[P]ossession of a controlled substance may be actual or constructive. . . . "To support a conviction based upon constructive possession, 'the Commonwealth must point to evidence of acts, statements, or conduct of the accused or other facts or circumstances which tend to show that the defendant was aware of both the presence and character of the substance and that it was subject to his dominion and control.' "
McGee v. Commonwealth, 4 Va. App. 317, 322, 357 S.E.2d 738, 740 (1987) (quoting Drew v. Commonwealth, 230 Va. 471, 473, 338 S.E.2d 844, 845 (196)).
"Although proof that cocaine is found on the premises owned by the accused is insufficient, standing alone, to prove constructive possession, such evidence is probative of possession and is a circumstance which may be considered along with other evidence." Wymer v. Commonwealth, 12 Va. App. 294, 300, 403 S.E.2d 702, 706 (1991).
Richardson stated that he owned the set of electronic scales and used these scales to weigh cocaine. The police found the cocaine flakes at the foot of the bookshelves holding the scales. Richardson admitted that he used the scales for cocaine purchases. From this evidence, coupled with evidence of Richardson's ownership of the property, the trial judge could infer that Richardson was aware of the presence and character of the cocaine.
Likewise, the trial judge could conclude beyond a reasonable doubt that Richardson exercised dominion and control over the cocaine. He owned the house, his personal belongings were found throughout the house, and he admitted to using the scales to weigh cocaine.
We also reject Richardson's contention that the evidence failed to prove that he possessed the cocaine with the intent to distribute. A small quantity of drugs, when considered with other circumstances, including the presence of paraphernalia, may support a conviction of possession with the intent to distribute. Hambury v. Commonwealth, 3 Va. App. 435, 438, 350 S.E.2d 524, 525 (1986). Richardson's residence contained numerous items associated with the distribution of cocaine: four sets of scales, plastic baggies, razor blades, a plastic spoon, and a "plastic knot." Several of these items contained residue.
Richardson's possession of beepers, a cellular phone, and a gun were also factors the trial judge could consider in determining whether Richardson possessed the cocaine with the intent to distribute. We have acknowledged that these items "frequently are used by drug dealers." Burchette v. Commonwealth, 15 Va. App. 432, 437, 425 S.E.2d 81, 84 (1992).
Finally, "[t]he presence of an unusual amount of money, suggesting profit from sales, is another circumstance that negates an inference of possession for personal use." Servis v. Commonwealth, 6 Va. App. 507, 524, 371 S.E.2d 156, 165 (1988). All told, the police seized $8,866 in cash from Richardson, almost twice the amount of money he made from his grocery store job the previous year. Richardson's explanation for the presence of this cash was that he received the money from a friend. The trial judge could and did reject this claim. See Rollison v. Commonwealth, 11 Va. App. 535, 547, 399 S.E.2d 823, 830 (1991).
Considered as a whole, and viewing the evidence in the light most favorable to the Commonwealth, the evidence was sufficient to prove beyond a reasonable doubt that Richardson possessed the cocaine with the intent to distribute.
In so concluding, we distinguish this case from Stanley v. Commonwealth, 12 Va. App. 867, 407 S.E.2d 13 (1991) (reh'g en banc). There, "the quantity of residue found in Stanley's possession was too small to be distributed." Id. at 870, 407 S.E.2d at 15. Because the Commonwealth failed to prove that Stanley possessed the cocaine contemporaneously with his intention to distribute it, we reversed Stanley's conviction for possession of cocaine with the intent to distribute.
Here, however, the testifying officer stated that the cocaine flakes could be distributed if they were gathered together from the carpet. The officer also testified that the flakes were recovered from "the floor that was underneath the scales." Considering the location of the scales, and the presence of the other paraphernalia associated with drug distribution, the officer testified that the location of the flakes "would be indicative of somebody handling cocaine at that station." From this evidence, the trial judge could conclude that the quantity of cocaine seized by the police was large enough to be distributed, and that the location of the cocaine and the presence of the assorted paraphernalia proved that Richardson possessed the flakes contemporaneously with the intent to distribute. Possession of a small quantity of drugs, when considered with other circumstances, such as the presence of paraphernalia, may be sufficient to establish an intent to distribute. See Colbert v. Commonwealth, 219 Va. 1, 4, 244 S.E.2d 748, 749 (1978); Hambury, 3 Va. App. at 438, 350 S.E.2d at 525.
For the reasons stated, we affirm the judgment of the trial court.
Affirmed.