Guy Mark Aydlett, s/k/a Guy Adylett v. Commonwealth of Virginia ( 2008 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Kelsey, Petty and Senior Judge Willis
Argued at Chesapeake, Virginia
GUY MARK AYDLETT, S/K/A
GUY ADYLETT
MEMORANDUM OPINION * BY
v. Record No. 2194-07-1 JUDGE JERE M. H. WILLIS, JR.
NOVEMBER 25, 2008
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
Dean W. Sword, Jr., Judge
Benjamin H. Hamlet (Kozak & Hamlet, P.C., on brief), for appellant.
Erin M. Kulpa, Assistant Attorney General (Robert F. McDonnell,
Attorney General; Joshua M. Didlake, Assistant Attorney General,
on brief), for appellee.
Guy Mark Aydlett contends the evidence was insufficient to support his conviction for
violating Code § 18.2-248. We disagree and affirm the judgment of the trial court.
BACKGROUND
“On appeal, ‘we review the evidence in the light most favorable to the Commonwealth,
granting to it all reasonable inferences fairly deducible therefrom.’” Archer v. Commonwealth,
26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997) (quoting Martin v. Commonwealth, 4 Va. App.
438, 443, 358 S.E.2d 415, 418 (1987)).
On June 25, 2006, Officer Scott D. White was on patrol when he observed a vehicle
stopped on the side of the road. Approaching the vehicle, White saw Aydlett sitting in the
driver’s seat holding a bag of what appeared to be crack cocaine. When White knocked on the
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
window, Aydlett dropped the bag on the floor. White ordered Aydlett out of the car. A search of
the vehicle produced the bag of crack cocaine and a glass smoking device. From Aydlett’s
person, the police recovered a bag containing over twenty grams of powdered cocaine having a
street value of over $2,100 and over $300 in cash.
The indictment against Aydlett charged that he “did manufacture, sell, give, distribute or
possess with intent to manufacture, sell, give or distribute Cocaine . . . in violation of []
§ 18.2-248 . . . .”
Detective Robert M. Holley testified as an expert in the packaging and distribution of
illegal narcotics. Detective Holley testified that while the crack cocaine and smoking device
were consistent with personal use, the large quantity of powdered cocaine was not.
Aydlett testified he possessed the cocaine for personal use and used it for pain
management associated with his medical condition. He admitted having combined powdered
cocaine with sodium bicarbonate and hydrogen peroxide to create crack cocaine.
Aydlett argued that converting powdered cocaine into crack cocaine did not constitute
“manufacturing” as prohibited by Code § 18.2-248. From the bench, the trial court stated that
Aydlett’s activities constituted manufacturing as prohibited by the statute. It stated that it need
not consider whether Aydlett intended to distribute the cocaine. It found him guilty, but agreed
the parties could present further argument regarding whether Aydlett had manufactured crack
cocaine, noting it would consider those arguments and could “vacate the finding or reduce it to
something else for sentencing.” The conviction order, entered June 27, 2007, and the sentencing
order, entered September 10, 2007, both recited that Aydlett was convicted of “PWID Cocaine,”
referencing Code § 18.2-248.
-2-
ANAYLSIS
Manufacturing
On appeal, Aydlett argues “[t]he court erred by finding [him] guilty of manufacturing
cocaine under Virginia Code § 18.2-248.” He argues that he merely “compounded” crack
cocaine, converting cocaine in one form into another, an act distinct from “manufacturing” and
not prohibited by Code § 18.2-248.
“A court speaks through its orders and those orders are presumed to accurately reflect
what transpired.” McBride v. Commonwealth, 24 Va. App. 30, 35, 480 S.E.2d 126, 128 (1997).
This presumption applies where an order conflicts with a transcript of the subject proceedings.
See Stamper v. Commonwealth, 220 Va. 260, 280-81, 257 S.E.2d 808, 822 (1979).
Although the transcript of Aydlett’s trial suggests the trial court convicted him of
manufacturing cocaine, the trial and sentencing orders unambiguously recite that he was
convicted of PWID Cocaine, acknowledged by him to mean possession with intent to distribute
cocaine. 1 This record establishes that the trial court convicted Aydlett of possessing cocaine
with the intent to distribute, not of manufacturing crack cocaine. Accordingly, we need not
address his contention that his conduct did not constitute manufacturing as defined by the Code.
Intent to Distribute
Aydlett also appears to argue that the Commonwealth failed to prove that he possessed
the cocaine with the intent to distribute it.
“[F]or a defendant to be convicted of possession of a controlled substance with the intent
to distribute, the Commonwealth must prove that the defendant possessed the controlled
1
The use of an acronym in lieu of a correct statement of the charge is not good practice
and is discouraged.
-3-
substance contemporaneously with his intention to distribute that substance.” Stanley v.
Commonwealth, 12 Va. App. 867, 869, 407 S.E.2d 13, 15 (1991).
“Because direct evidence is often impossible to produce, intent [to distribute drugs] may
be shown by circumstantial evidence that is consistent with guilt, inconsistent with innocence,
and excludes every reasonable hypothesis of innocence.” Dunbar v. Commonwealth, 29
Va. App. 387, 394, 512 S.E.2d 823, 826 (1999). “When the proof of intent to distribute narcotics
rests upon circumstantial evidence, the quantity which the defendant possesses is a circumstance
to be considered. Indeed, quantity, 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).
Detective Holley opined that while the crack cocaine and smoking device could be
consistent with personal use, the large quantity of powdered cocaine was inconsistent with
personal use. He explained the street value of the powdered cocaine exceeded $2,000 and
assigned little significance to the currency Aydlett carried at the time of his arrest.
“The credibility of the witnesses and the weight accorded the evidence are matters solely
for the fact finder who has the opportunity to see and hear that evidence as it is presented.”
Sandoval v. Commonwealth, 20 Va. App. 133, 138, 455 S.E.2d 730, 732 (1995). Although
Aydlett testified he possessed all the cocaine for personal use, the trial court was entitled to
disbelieve his self-serving testimony and to conclude that he was lying to conceal his guilt.
Marable v. Commonwealth, 27 Va. App. 505, 509-10, 500 S.E.2d 233, 235 (1998). The quantity
of the powdered cocaine found in his pocket, which the expert testified was inconsistent with
personal use, was sufficient to support his conviction for possession of cocaine with the intent to
distribute.
-4-
The Commonwealth presented competent, credible, and sufficient evidence to prove
beyond a reasonable doubt that Aydlett was guilty of violating Code § 18.2-248. Therefore, the
trial court’s judgment was neither plainly wrong nor without evidence to support it. See Askew
v. Commonwealth, 40 Va. App. 104, 107, 578 S.E.2d 58, 60 (2003). Accordingly, the judgment
of the trial court is affirmed.
Affirmed.
-5-