Scott v. Com.

684 S.E.2d 833

55 Va. App. 166

William Lee SCOTT v. COMMONWEALTH of Virginia.

Record No. 1482-08-2.

Court of Appeals of Virginia, Richmond.

November 17, 2009.

Cassandra M. Hausrath, Assistant Public Defender (Office of the Public Defender, on brief), for appellant.

Erin M. Kulpa, Assistant Attorney General (William C. Mims, Attorney General, on brief), for appellee.

Present: FELTON, C.J., and ELDER, FRANK, HUMPHREYS, KELSEY, McCLANAHAN, HALEY, PETTY, BEALES, POWELL and ALSTON, JJ.

UPON A REHEARING EN BANC

POWELL, Judge.

This matter comes before the Court on a rehearing en banc from an unpublished panel decision of June 2, 2009. William Lee Scott ("Scott") was convicted in a bench trial of possession of cocaine with intent to distribute in violation of Code § 18.2-248. On appeal, Scott challenges the sufficiency of the evidence to convict him for possession of cocaine with intent to distribute. A divided panel of this Court reversed the decision of the trial court as to the possession with intent to distribute cocaine and remanded the case for a new trial on a charge of simple possession. At the request of the Commonwealth, we granted a petition for rehearing en banc. Upon rehearing en banc, we find that the evidence was sufficient to convict Scott for possession of cocaine with intent to distribute and affirm the decision of the trial court.

I. BACKGROUND

On the evening of September 13, 2007, Officers Michael Kielb and Shane Watson were on patrol in an apartment complex where drug activity had been reported. After observing a white Cadillac fail to properly obey a stop sign, the officers initiated a traffic stop.

Officer Watson approached the car and spoke with the driver, while Officer Kielb scanned the interior of the vehicle to check for contraband or weapons. Officer Kielb recognized Scott, who was sitting in the front passenger seat, as having prior arrests for drugs and weapons violations.

Officer Kielb noticed a hand-rolled cigar that he immediately recognized as contraband between the passenger door and the passenger seat. Based on his past experience with narcotics, Officer Kielb knew that marijuana users "will take an already made cigar, unravel it, dump out the tobacco content and refill it with marijuana and twist the ends, making themselves a hand-rolled cigar of marijuana." Officer Kielb then motioned to Officer Watson to remove the occupants from the vehicle in order to retrieve the contraband.

When Officer Kielb began to handcuff Scott, Scott attempted to flee the scene. Both officers noticed a black object fall from Scott's waistband as he attempted to flee. Officer Kielb tackled him ten feet away from the vehicle and placed him in custody. After the struggle, the officers found that the object that had fallen from Scott's waistband was a loaded 9-millimeter handgun.

The officers recovered the hand-rolled cigar of marijuana Officer Kielb had seen in plain view inside the vehicle and confirmed that it did contain marijuana. Officer Watson then conducted a search of Scott's clothing by shaking his pants. Three baggies fell to the ground: one containing marijuana, another containing a single "rock" of cocaine, and a third containing cocaine powder. The total weight of the cocaine was 0.733 gram: 0.443 gram of rock cocaine and 0.290 gram of cocaine powder.¹ The officers did not find a smoking device or distribution paraphernalia such as scales, baggy corners, or razor blades on appellant.

After his arrest, Scott admitted that the hand-rolled cigar of marijuana seized from the car was his and that he smoked marijuana approximately once a week. He did not make any statements regarding the cocaine.

At trial, Officer Watson testified as an expert in narcotics distribution. According to Officer Watson, a heavy drug user typically consumed two to three grams of cocaine per day. He testified that, based on the totality of the circumstances, Scott's possession of the drugs was inconsistent with personal use.

At the conclusion of the Commonwealth's evidence, Scott moved to strike the evidence as insufficient to convict him of possession of cocaine with intent to distribute. The trial court denied appellant's motion to strike. The trial court subsequently found Scott guilty of possession of cocaine with intent to distribute, possession of a firearm while in possession of cocaine, and carrying a concealed weapon, third or subsequent offense.

Scott appealed his convictions, arguing that the evidence against him should have been suppressed, or, in the alternative, that the evidence was insufficient to convict him of possession of cocaine with intent to distribute. An unpublished panel decision affirmed the trial court's decision regarding the suppression of the evidence, and reversed and remanded Scott's conviction for possession of cocaine with intent to distribute. See Scott v. Commonwealth, No. 1482-08-2, 2009 WL 1514503, 2009 Va.App. LEXIS 251 (Va. Ct. App. June 2, 2009).

II. ANALYSIS

A. EN BANC REVIEW

In the present case, we granted the Commonwealth's petition for a rehearing en banc on the sole issue of whether the evidence was sufficient to convict Scott for possession of cocaine with intent to distribute. Scott did not petition this Court for rehearing en banc on the issue of whether Officer Kielb had reasonable suspicion to justify his seizure; therefore, we will not address that issue here. See Ferguson v. Commonwealth, 51 Va.App. 427, 433, 658 S.E.2d 692, 695 (2008) (holding that this Court will not address en banc those issues contained in the panel decision which were not included in the petition for rehearing en banc). Accordingly, our en banc review is limited to the question of whether the evidence was sufficient to find Scott guilty of possession of cocaine with intent to distribute; "the decision of the trial court on [Scott]'s unchallenged convictions remains undisturbed and we reinstate the panel opinion on the issue[] not before us." Id.

B. SUFFICIENCY OF THE EVIDENCE

"When the sufficiency of the evidence is challenged on appeal, we determine whether the evidence, viewed in the light most favorable to the prevailing party, the Commonwealth, and the reasonable inferences fairly deducible from that evidence support each and every element of the charged offense." Haskins v. Commonwealth, 31 Va.App. 145, 149-50, 521 S.E.2d 777, 779 (1999). "In so doing, we must discard the evidence of the accused in conflict with that of the Commonwealth, and regard as true all the credible evidence favorable to the Commonwealth and all fair inferences that may be drawn therefrom." Watkins v. Commonwealth, 26 Va.App. 335, 348, 494 S.E.2d 859, 866 (1998). "When reviewing the sufficiency of the evidence to support a conviction, the Court will affirm the judgment unless the judgment is plainly wrong or without evidence to support it." Bolden v. Commonwealth, 275 Va. 144, 148, 654 S.E.2d 584, 586 (2008) (citations omitted). "The weight which should be given to evidence and whether the testimony of a witness is credible are questions which the fact finder must decide." Bridgeman v. Commonwealth, 3 Va.App. 523, 528, 351 S.E.2d 598, 601 (1986).

"In determining whether a defendant is guilty of possession with the intent to distribute, the trier of fact is entitled to weigh all the circumstances in a given case." Stanley v. Commonwealth, 12 Va. App. 867, 869, 407 S.E.2d 13, 14 (1991). "Because direct proof of intent [to distribute drugs] is often impossible, it must be shown by circumstantial evidence." Servis v. Commonwealth, 6 Va.App. 507, 524, 371 S.E.2d 156, 165 (1988). "Circumstantial evidence is as competent and is entitled to as much weight as direct evidence, provided it is sufficiently convincing to exclude every reasonable hypothesis except that of guilt." Coleman v. Commonwealth, 226 Va. 31, 53, 307 S.E.2d 864, 876 (1983). "However, the Commonwealth need only exclude reasonable hypotheses of innocence that flow from the evidence, not those that spring from the imagination of the defendant." Hamilton v. Commonwealth, 16 Va.App. 751, 755, 433 S.E.2d 27, 29 (1993).

"The quantum of evidence necessary to prove an intent to distribute depends on the facts and circumstances of each case." Askew v. Commonwealth, 40 Va.App. 104, 110, 578 S.E.2d 58, 61 (2003).

Among the circumstances that tend to prove an intent to distribute are "the quantity of the drugs seized, the manner in which they are packaged, and the presence of ... equipment related to drug distribution." McCain v. Commonwealth, 261 Va. 483, 493, 545 S.E.2d 541, 547 (2001) (citations omitted). Pagers and firearms are among the equipment that has been recognized as tools of the drug trade, the possession of which are probative of intent to distribute. Glasco v. Commonwealth, 26 Va.App. 763, 775, 497 S.E.2d 150, 156 (1998), aff'd, 257 Va. 433, 513 S.E.2d 137 (1999). Furthermore, "the absence of paraphernalia suggestive of personal use ... [is] regularly recognized as [a] factor[] indicating an intent to distribute." Welshman v. Commonwealth, 28 Va.App. 20, 37, 502 S.E.2d 122, 130 (1998) (en banc) (citation omitted).

Id. at 108-09, 578 S.E.2d at 60-61.

"While no single piece of evidence may be sufficient, the `combined force of many concurrent and related...