Rodney Mosbey, etc. v. Commonwealth ( 1995 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Elder and Annunziata
Argued at Richmond, Virginia
RODNEY MOSBEY, S/K/A
RODNEY O. MOSBEY
MEMORANDUM OPINION * BY
v. Record No. 2184-93-2 JUDGE LARRY G. ELDER
OCTOBER 17, 1995
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF PETERSBURG
James F. D'Alton, Jr., Judge
Mary Katherine Martin, Senior Assistant Public
Defender (Office of the Public Defender, on
brief), for appellant.
Robert B. Beasley, Jr., Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
Rodney O. Mosbey (appellant) appeals his convictions for (1)
possession of cocaine with intent to distribute after having been
previously convicted of the same offense, in violation of Code
§ 18.2-248 and (2) failing to stop his vehicle or offer
assistance at the scene of an accident, in violation of Code
§ 46.2-894. While appellant argues the evidence was insufficient
to support either conviction, we disagree and affirm his
convictions.
I.
FACTS
On April 16, 1993, Officers Carl Moore and Michael Elmore of
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
the Petersburg Police Department observed a Chevrolet Blazer,
driven by appellant, stationary in the middle of a street, five
to ten feet from the intersection. Several persons were observed
leaning into the windows on both sides of the vehicle. As the
officers approached, the persons scattered from the vehicle,
before it quickly accelerated. Officer Moore attempted to
initiate a traffic stop of appellant's vehicle. Even though
Officer Moore activated his vehicle's grill lights, visor lights,
and siren, appellant attempted to evade the officer. A vehicle
pursuit ended when appellant struck a railroad track.
Appellant then reversed his vehicle, striking the police car
in the process. Officer Elmore's leg became trapped between the
door and the frame of the police car, and the vehicle sustained
heavy damage. Appellant thereafter exited his vehicle, ran
across the hood of the police car, and began to flee on foot. As
Officer Moore chased him, appellant jumped down an embankment and
into the Appomattox River. While appellant swam across the
river, Officer Moore observed four bags float from beneath
appellant to the top of the water. Officer Moore recovered three
bags, which contained smaller baggies of crack cocaine, but was
not able to retrieve the fourth bag.
Police apprehended appellant when he swam back toward the
shore. Officer Moore found an operational pager, which was
turned on, at the river bank close to where appellant entered the
river. A search of appellant turned up a fourth package
containing twenty-five plastic baggies of cocaine.
2
Officer Christopher Lemire, an expert in the area of drug
packaging and valuation, testified that each individual baggie
was worth ten dollars as packaged; that crack cocaine purchasers
usually possess no more than one or two baggies of crack cocaine;
and that the "high" associated with the consumption of one ten
dollar bag of crack cocaine lasts approximately twenty minutes.
Appellant testified he fled from the police because he
lacked a driver's license and was carrying cocaine for his own
personal use. Appellant stated that he was a cocaine addict who
had smoked cocaine for the last seven to eight years; that
although one could use up to 200 to 300 ten dollar packets of
cocaine daily, the most he used was seventy; and that he could
obtain cocaine for cheaper amounts of money if he bought it in
bulk quantities. Appellant denied owning a pager.
A jury convicted appellant on both charges.
II.
POSSESSION OF COCAINE WITH INTENT TO DISTRIBUTE
Appellant concedes the evidence was sufficient to prove he
possessed the cocaine. "This case therefore presents the
question whether the facts proven by the Commonwealth established
intent to distribute rather than mere possession for personal
use." Wells v. Commonwealth, 2 Va. App. 549, 551, 347 S.E.2d
139, 140 (1986). After reviewing the record, we hold that
sufficient evidence existed for the jury to find appellant guilty
beyond a reasonable doubt of possessing cocaine with intent to
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distribute.
On appeal, the evidence must be viewed in the light most
favorable to the Commonwealth and be given all reasonable
inferences fairly deducible therefrom. Higginbotham v.
Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975). "The
jury's verdict will not be disturbed on appeal unless it is
plainly wrong or without evidence to support it." Traverso v.
Commonwealth, 6 Va. App. 172, 176, 366 S.E.2d 719, 721 (1988).
In order to support appellant's conviction, the Commonwealth
needed to prove beyond a reasonable doubt that he intended to
distribute the cocaine that he possessed. See Patterson v.
Commonwealth, 215 Va. 698, 699, 213 S.E.2d 752, 753 (1975). "The
Commonwealth's evidence of appellant's . . . possession was based
on circumstantial evidence. It is well settled . . . that
'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.'" Shurbaji v. Commonwealth, 18 Va. App. 415, 423, 444
S.E.2d 549, 553 (1994) (citation omitted).
We are reminded that "while no single piece of evidence may
be sufficient [to prove intent], the combined force of many
concurrent and related circumstances, each insufficient in
itself, may lead a reasonable mind irresistibly to a conclusion."
Id. (citations omitted). Circumstances relevant to proof of
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intent to distribute include the quantity of drugs possessed 1 and
whether large quantities of a drug were packaged for
distribution. Monroe v. Commonwealth, 4 Va. App. 154, 156, 355
S.E.2d 336, 337 (1987); see Servis v. Commonwealth, 6 Va. App.
507, 524, 371 S.E.2d 156, 165 (1988) (circumstance proving intent
to distribute includes the presence of a large, or bulk, quantity
from which smaller packages may have been made up for
distribution). Additionally, paraphernalia commonly used in drug
distribution, such as pagers, may be considered. See Hetmeyer v.
Commonwealth, 19 Va. App. 103, 111, 448 S.E.2d 894, 899 (1994).
In this case, the circumstantial evidence, considered as a
whole and viewed in the light most favorable to the Commonwealth,
excludes all reasonable hypotheses of innocence and is therefore
sufficient to support the trial court's finding of guilt. The
evidence shows appellant was parked stationary in the middle of a
street surrounded by persons on both sides of the vehicle who
fled when police approached. Appellant took extreme measures to
elude the police, first by leading them on a high-speed chase in
which their vehicles collided, and then by swimming across a
river. Police recovered four large bags from appellant, each of
which contained twenty-five individually wrapped, smaller
baggies. Police also found an operational pager near appellant's
1
Even possession of a small quantity of a drug, "when
considered with other circumstances, may be sufficient to
establish an intent to distribute." Servis v. Commonwealth, 6
Va. App. 507, 524, 371 S.E.2d 156, 165 (1988).
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entry route into the river.
Expert testimony from Officer Lemire revealed (1) each
baggie contained a "hit" of crack cocaine; (2) each baggie was
the size normally sold on the street for ten dollars; (3) both
the method of packaging and the quantity of appellant's cocaine
were inconsistent with personal use; (4) most purchasers of crack
cocaine possess no more than one or two "hits" of crack cocaine;
and (5) appellant possessed a "large" amount of cocaine. 2
While appellant provided explanations for his possession of
the cocaine, his past personal usage, and how he acquired the
cocaine in bulk quantities for personal use, it was within the
jury's province to assess his credibility and the weight to be
given his testimony. Servis, 6 Va. App. at 525, 371 S.E.2d at
165. The jury may have disbelieved appellant's testimony where
it was inherently improbable or inconsistent with circumstances
in evidence. Id.III.
FAILING TO STOP AT SCENE OF AN ACCIDENT
We hold that sufficient evidence supported beyond a
reasonable doubt appellant's conviction for misdemeanor failure
to stop at the scene of an accident.
2
The Commonwealth presented expert testimony on drug usage
and packaging in order to comply with Hudak v. Commonwealth, 19
Va. App. 260, 263, 450 S.E.2d 769, 771 (1994), where we stated
that expert testimony is necessary where a jury is confronted
with issues that "cannot be determined intelligently from
deductions made and inferences drawn on the basis of ordinary
knowledge, common sense, and practical experience."
6
A misdemeanor conviction under Code § 46.2-894 requires the
driver of any vehicle involved in an accident in which an
attended vehicle is damaged to immediately stop and report the
accident to the police or supply his name and other pertinent
information to another driver involved in the accident. The
Commonwealth has the burden of showing that the accused
"possessed actual knowledge of the accident [] and such knowledge
of injury [or property damage] which would be attributed to a
reasonable person under the circumstances of the case." Kil v.
Commonwealth, 12 Va. App. 802, 811, 407 S.E.2d 674, 679 (1991).
In this case, it is undisputed that appellant knew his
Blazer and the police vehicle collided. Testimony from the
police officers revealed their vehicle sustained heavy damage on
its side panels and doors after it became "locked together" with
appellant's Blazer. Furthermore, appellant left footprints on
the police vehicle's hood after he exited the Blazer and ran
across the police vehicle toward the river. From these
circumstances, the jury could infer that appellant knew the
police vehicle sustained property damage. Appellant's failure to
stop and render assistance in the matter support his misdemeanor
conviction.
Accordingly, we affirm the convictions.
Affirmed.
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Benton, J., concurring and dissenting.
I concur in Part III and agree that the evidence was
sufficient to prove beyond a reasonable doubt that Mosbey failed
to stop at the scene of the accident in violation of Code
§ 46.2-894. However, I dissent from the remainder of the opinion
because although the evidence was sufficient to prove that Mosbey
possessed cocaine, the evidence failed to prove beyond a
reasonable doubt that Mosbey possessed the cocaine with the
intent to distribute it. The principle is well established that
when "the Commonwealth's evidence of intent to distribute is
wholly circumstantial, 'all necessary circumstances proved must
be consistent with guilt and inconsistent with innocence and
exclude every reasonable hypothesis of innocence.'" Wells v.
Commonwealth, 2 Va. App. 549, 551, 347 S.E.2d 139, 140 (1986)
(quoting Inge v. Commonwealth, 217 Va. 360, 366, 228 S.E.2d 563,
567 (1976)).
The evidence in this record failed to prove that Mosbey
distributed or intended to distribute the cocaine he possessed.
The evidence did not establish that Mosbey engaged in any
transactions with any of the persons outside his vehicle. His
flight from the police is not inconsistent with the hypothesis
that he was aware that he possessed cocaine, an illegal
substance, for his personal use. The Commonwealth's evidence
established that users of cocaine received discounts when
purchasing twenty bags and more of cocaine and that a user could
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purchase a bag of cocaine, such as seized from Mosbey, with
twenty-five "hits." The Commonwealth's evidence further
established that a user would get a better price if the user
purchased cocaine in such quantity.
Although an officer testified that most cocaine users that
he had arrested possessed only one or two "hits", in light of the
other testimony in the case, that testimony does not provide a
basis from which the jury could have inferred beyond a reasonable
doubt that the cocaine Mosbey possessed was inconsistent with his
personal use. Indeed, none of the Commonwealth's evidence was
inconsistent with Mosbey's evidentiary hypothesis that he
purchased the cocaine at a discount for his personal use. It is
elementary that "possession and ownership may imply intent to use
rather than intent to distribute." Hunter v. Commonwealth, 213
Va. 569, 571, 193 S.E.2d 779, 780 (1973). Moreover, the
principle is well established that the "[e]xistence of the intent
. . . cannot be based upon surmise or speculation." Patterson v.
Commonwealth, 215 Va. 698, 699, 213 S.E.2d 752, 753 (1975).
Based upon the evidence in this record, in particular the
testimony of the Commonwealth's expert, "[i]t is just as
plausible that [Mosbey] . . . purchased the packaged substance
for personal use as it is that . . . [he] packaged [it] . . . for
distribution." Dukes v. Commonwealth, 227 Va. 119, 123, 313
S.E.2d 382, 384 (1984). Thus, I would reverse the conviction
because the evidence was insufficient to prove beyond a
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reasonable doubt Mosbey's intent to distribute cocaine.
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