Tyrone Allen Patterson v. Commonwealth ( 2002 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, Felton and Kelsey
Argued at Richmond, Virginia
TYRONE ALLEN PATTERSON
MEMORANDUM OPINION * BY
v. Record No. 3330-01-2 JUDGE ROBERT P. FRANK
DECEMBER 3, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Margaret P. Spencer, Judge
Craig S. Cooley for appellant.
Donald E. Jeffrey, III, Assistant Attorney
General (Jerry W. Kilgore, Attorney General,
on brief), for appellee.
Tyrone Allen Patterson (appellant) was convicted in a bench
trial of possession of heroin with the intent to distribute, in
violation of Code § 18.2-248. On appeal, he challenges the
sufficiency of the evidence to prove intent to distribute. 1 For
the reasons stated, we affirm.
In reviewing the sufficiency of the
evidence, we examine the record in the light
most favorable to the Commonwealth, granting
to it all reasonable inferences fairly
deducible therefrom. See Martin v.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
1
While appellant further contends the trial court erred in
qualifying Sergeant Capriglione as an expert witness in drug
distribution, this Court did not grant an appeal on that issue
and, therefore, we will not consider it. See Code
§ 17.1-407(D); Rule 5A:15.
Commonwealth, 4 Va. App. 438, 443, 358
S.E.2d 415, 418 (1987). The judgment of a
trial court will be disturbed only if
plainly wrong or without evidence to support
it. See id. The credibility of a witness,
the weight accorded the testimony, and the
inferences to be drawn from proved facts are
matters to be determined by the fact finder.
See Long v. Commonwealth, 8 Va. App. 194,
199, 379 S.E.2d 473, 476 (1989).
Glasco v. Commonwealth, 26 Va. App. 763, 773, 497 S.E.2d 150,
155 (1998), aff'd on alt. grounds, 257 Va. 433, 513 S.E.2d 137(1999).
Where an offense consists of an act combined
with a particular intent, proof of the
intent is essential to the conviction.
Patterson v. Commonwealth, 215 Va. 698, 699,
213 S.E.2d 752, 753 (1975). Because direct
proof of intent is often impossible, it must
be shown by circumstantial evidence. But
"[w]here . . . 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 quantity of a controlled substance is a
factor which may indicate the purpose for
which it is possessed. Possession of a
small quantity creates an inference that the
drug is for personal use." Monroe v.
Commonwealth, 4 Va. App. 154, 156, 355
S.E.2d 336, 337 (1987). Possession of a
small quantity of a controlled substance,
however, when considered with other
circumstances, may be sufficient to
establish an intent to distribute. Dutton
v. Commonwealth, 220 Va. 762, 765, 263
S.E.2d 52, 54 (1980).
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Servis v. Commonwealth, 6 Va. App. 507, 524, 371 S.E.2d 156, 165
(1988).
Other factors to consider include the manner in which the
drugs are packaged, the presence of a large amount of cash or
firearms, and the presence of equipment related to drug
distribution. See, e.g., Dukes v. Commonwealth, 227 Va. 119, 123,
313 S.E.2d 382, 384 (1984) (considering the manner in which
marijuana was packaged); Colbert v. Commonwealth, 219 Va. 1, 3-4,
244 S.E.2d 748, 749 (1978) (considering the packaging of the
recovered marijuana and the discovery of over $200 in cash); Wells
v. Commonwealth, 32 Va. App. 775, 782-83, 531 S.E.2d 16, 19 (2000)
(considering evidence of drug distribution paraphernalia and of a
large amount of cash); Clarke v. Commonwealth, 32 Va. App. 286,
305, 527 S.E.2d 484, 493 (2000) (considering where the drugs were
found and the presence of a pistol). Additional factors include a
defendant's use of drugs, see, e.g., Poindexter v. Commonwealth,
16 Va. App. 730, 735, 432 S.E.2d 527, 530 (1993), and the absence
of evidence suggesting personal use, see, e.g., Clarke, 32
Va. App. at 305, 527 S.E.2d at 493.
Appellant does not challenge the finding that he possessed
heroin. Instead, he contends the evidence was insufficient to
establish he had an intent to distribute the drug. However,
consideration of the entirety of the evidence supports the trial
court's finding of guilt.
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Detective Breedlove of the Richmond Police Department stopped
appellant's truck and executed a search warrant on appellant's
person. Breedlove recovered a plastic baggy containing 32 plastic
bag corners, each corner containing heroin, having a total weight
of 1.89 grams and a street value of $640. The drugs were found in
appellant's underwear.
Immediately thereafter, the police executed a search warrant
at the residence on Nelson Street which appellant had left
immediately before his vehicle was stopped. They recovered $2,148
in cash (two $50 bills, forty-five $20 bills, seventy-seven $10
bills, forty-six $5 bills and 148 $1 bills) and a "black digital
scale," all found in a "back bedroom." Both the money and scales
were inside a box in a dresser drawer. In the same drawer, police
found financial documents addressed to appellant at the Nelson
Street residence and mail "addressed to a Terry Pryor for Bunch
Place." Officers also located an operating police scanner in the
bedroom on a nightstand. Male and female clothing were found in
the bedroom.
In a trash can in the kitchen, police found "sandwich baggies
with the corners that had been cut out of them" and a pair of
latex gloves. The gloves appeared to be "medical-type" gloves, as
opposed to those used for dishwashing.
Officers did not find any drugs in the residence. No devices
used to ingest drugs were found on appellant's person, in his car,
or in the residence.
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Sergeant Capriglione, who qualified as an expert witness in
drug distribution, testified the thirty-two "hits" of heroin were
inconsistent with personal consumption, which is usually one "hit"
a day. On cross-examination, he conceded he could not completely
exclude the possibility that an addict would have thirty-two
"hits" for personal use. However, he testified he has not found
"many [users] to make large purchases or bulk purchases like
that." The expert further explained that the large sum of cash
and its denominations, the packaging of the heroin, the scales,
the scanner, and the latex gloves are all involved in illegal drug
sales.
Appellant contends 1.89 grams of heroin is not a sufficient
amount to prove intent. However, the amount of narcotics found is
but one factor in distribution cases. Dutton, 220 Va. at 765, 263
S.E.2d at 54. Appellant then attempts to disassociate himself
from the items found in the residence, arguing that those items
are attributable to Terry Pryor. However, the fact finder could
properly infer that the residence was appellant's, not Pryor's,
since the mail found in the dresser was addressed to appellant at
the residence's address. Even if Pryor had some interest in the
items, the fact finder could infer appellant jointly possessed
those items with Pryor. See Josephs v. Commonwealth, 10 Va. App.
87, 101-02, 390 S.E.2d 491, 499 (1990) (en banc).
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Based on the totality of the circumstances, we find the
evidence sufficient to convict. We, therefore, affirm the
conviction.
Affirmed.
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