Summary
recognizing that the absence of drug paraphernalia makes it "more likely that [the defendant] used the drug elsewhere"
Summary of this case from Holloway v. ComOpinion
44613 Record No. 822190.
March 9, 1984.
Present: All the justices.
Conviction of possessing marijuana with intent to distribute under Code Sec. 18.2-248.1 reversed; small quantity possessed raises inference of personal use; Commonwealth failed to prove intent to distribute beyond a reasonable doubt.
(1) Criminal Procedure — Appeal Evidence — Viewed in the Light Most Favorable to Commonwealth.
(2) Criminal Procedure — Appeal — Evidence — Judgment of Trial Court — Affirmed Unless Plainly Wrong or Without Evidence to Support It.
(3) Criminal Procedure — Evidence — Circumstantial — If Evidence Wholly Circumstantial, All Necessary Circumstances Must be Consistent with Guilt, Inconsistent with Innocence, and Exclude Every Reasonable Hypothesis of Innocence.
(4) Criminal Procedure — Evidence — Circumstantial — Drugs — Possession of Marijuana With Intent to Distribute (Code Sec. 18.2-248.1) — Quantity of Narcotics Possessed is Circumstantial Evidence of Intent to Distribute.
(5) Criminal Procedure — Evidence — Circumstantial — Drugs — Possession of Marijuana With Intent to Distribute (Code Sec. 18.2-248.1) — Small Quantity of Narcotics Raises Inference that Drug was Possessed for Personal Use.
(6) Criminal Procedure — Evidence — Circumstantial — Drugs — Possession of Marijuana With Intent to Distribute (Code Sec. 18.2-248.1) — Small Quantity of Marijuana in Defendant's Possession Raises Inference that was for Personal Use.
(7) Criminal Procedure — Evidence — Circumstantial — Drugs — Possession of Marijuana With Intent to Distribute (Code Sec. 18.2-248.1) — Methods of Packaging Marijuana and Hiding Containers are as Consistent with Personal Use as with Intent to Distribute.
(8) Criminal Procedure — Evidence — Circumstantial — Drugs — Possession of Marijuana With Intent to Distribute (Code Sec. 18.2-248.1) — Absence of Drug Paraphernalia, Etc., Does Not Give Rise to Inference of Intent to Distribute.
(9) Criminal Procedure — Evidence — Circumstantial — Drugs — Burden of Proof — Possession of Marijuana With Intent to Distribute (Code Sec. 18.2-248.1) Small Quantity of Marijuana in Defendant's Possession Raises Inference that it was for Personal Use and Defendant Does Not Have Burden to Prove this to Negative Intent to Distribute.
(10) Criminal Procedure — Evidence — Circumstantial — Drugs — Possession of Marijuana With Intent to Distribute (Code Sec. 18.2-248.1) — Failure to Find Unusual Amount of Marijuana in Search of Defendant's Car or to Find Unusual Amount of Money in Possession Negatives Intent to Distribute.
(11) Criminal Procedure — Evidence — Circumstantial — Drugs — Burden of Proof — Possession of Marijuana With Intent to Distribute (Code Sec. 18.2-248.1) — Commonwealth Fails to Carry Burden of Proof Beyond Reasonable Doubt that Defendant Possessed Marijuana With Intent to Distribute.
Naval officers, pursuant to a warrant, searched the United States Naval Security Group Activity Northwest in Chesapeake where defendant was a civilian employee. They found a 35-millimeter film cannister containing marijuana and then discovered a one-inch square manila envelope containing marijuana in the defendant's wallet. Two similar envelopes of marijuana were found on defendant's person, totaling one-half ounce of marijuana seized from defendant. However, no marijuana was found in defendant's automobile and no unusual amount of money was found in her possession. Defendant was convicted of possession of marijuana with intent to distribute. She appeals on the ground of insufficient evidence.
1. When a defendant in a criminal case challenges on appeal the sufficiency of the evidence produced by the Commonwealth at trial, the evidence and all reasonable inferences therefrom must be viewed in the light most favorable to the Commonwealth.
2. The Trial Court's judgment should be affirmed unless it is plainly wrong or without evidence to support it.
3. If the evidence of intent is wholly circumstantial, all necessary circumstances proved must be consistent with guilt, inconsistent with innocence, and exclude every reasonable hypothesis of innocence.
4. The quantity of narcotics possessed by a defendant is circumstantial evidence of intent to distribute.
5. Possession of a small quantity of narcotics creates an inference that the drug was possessed for the defendant's personal use.
6. The relatively small quantity of marijuana in the defendant's possession raises the inference that the marijuana was in her possession for her personal use.
7. Packaging marijuana in a 35-millimeter film cannister and three one-inch square manila envelopes, hiding the cannister at the defendant's place of employment, and the envelopes in her wallet and on her person, are circumstances as consistent with possession for personal use as they are with the intent to distribute.
8. Absence of drug paraphernalia where the drugs were found, at the defendant's place of employment, does not give rise to an inference of intent to distribute.
9. The small quantity of marijuana in defendant's possession raises the inference that she used it. She does not bear the burden of proof to show that she intended the possession was for personal use as distinguished from possible distribution to others.
10. Failure to find marijuana while searching defendant's car or failure to find an unusual amount of money in defendant's possession are circumstances tending to negative defendant's intent to distribute.
11. The Commonwealth bears the burden of proving beyond a reasonable doubt that the defendant possessed marijuana with intent to distribute. Here, the circumstantial evidence of such intent, when viewed in the light most favorable to the Commonwealth, fails to exclude every reasonable hypothesis of innocence.
Appeal from a judgment of the Circuit Court of the City of Chesapeake. Hon. William H. Hodges, judge presiding.
Reversed and remanded.
Boyd Scarborough (Griffin, Pappas Scarborough, on brief), for appellant.
Karen A. Laserson, Assistant Attorney General (Gerald L. Baliles, Attorney General, on brief), for appellee.
In a bench trial, Bettie Jean Dukes was convicted of possessing marijuana with intent to distribute in violation of Code Sec. 18.2-248.1. She was sentenced to six months in jail and fined $1,000. The defendant concedes the evidence is sufficient to prove possession of marijuana, but she contends there was insufficient evidence to establish that she possessed the drug with the intent to distribute.
The Commonwealth relies wholly upon circumstantial evidence to establish intent to distribute. Dukes was a civilian employee at the United States Naval Security Group Activity Northwest in the City of Chesapeake. On February 23, 1983, Naval officers, pursuant to a warrant, searched the facility for narcotics and found a small 35-millimeter film cannister containing marijuana.
They also discovered a one-inch square manila envelope containing marijuana in the defendant's wallet. During a subsequent search of Dukes' person, another one-inch square manila envelope containing marijuana fell to the floor. Shortly thereafter, Dukes was seated in the dining area. When she stood, the officers saw a third manila envelope fall to the floor beneath her. It, too, contained marijuana.
A further body search and a search of Dukes' automobile failed to produce additional marijuana. The total quantity of marijuana seized was one-half ounce. No unusual amount of money was found on the defendant.
Dukes made a motion to strike at the conclusion of the Commonwealth's evidence on the ground that it was insufficient to prove possession with intent to distribute. The motion was overruled, and the defendant presented no evidence.
[1-2] When the sufficiency of the evidence is challenged on appeal, the evidence and all reasonable inferences fairly deducible therefrom must be viewed in the light most favorable to the Commonwealth. The trial court's judgment should be affirmed unless it is plainly wrong or without evidence to support it. Green v. Commonwealth, 223 Va. 706, 712, 292 S.E.2d 605, 609 (1982).
[3-5] If evidence of intent is wholly circumstantial, "all necessary circumstances proved must be consistent with guilt and inconsistent with innocence and exclude every reasonable hypothesis of innocence." Inge v. Commonwealth, 217 Va. 360, 366, 228 S.E.2d 563, 567 (1976). 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. Hunter v. Commonwealth, 213 Va. 569, 570, 193 S.E.2d 779, 780 (1973). However, possession of a small quantity creates an inference that the drug was for the personal use of the defendant. Dutton v. Commonwealth, 220 Va. 762, 765, 263 S.E.2d 52, 54 (1980).
In the present case, the relatively small quantity of marijuana in the defendant's possession warrants the inference that it was for her personal use. To overcome this inference and sustain the conviction, the Commonwealth relies upon a number of circumstances. It argues that "the marijuana was packaged to facilitate distribution," that Dukes possessed no paraphernalia when arrested, that there was no evidence that she used marijuana, and that the packages were hidden in different places upon her person. We do not believe these circumstances are consistent only with guilt and inconsistent with innocence.
[7-8] The mode of packaging and the way the packages were hidden are as consistent with possession for personal use as they are with intent to distribute. It is just as plausible that the defendant purchased the packaged substance for personal use as it is that she packaged the marijuana for distribution. Furthermore, the absence of drug paraphernalia at Dukes' place of employment does not give rise to an inference that she was not a drug user. Indeed, it is more likely that she used the drug elsewhere.
[9-10] It was not the defendant's burden to establish that she used marijuana; the small quantity in her possession created that inference. Moreover, the officers' failure to find marijuana in the defendant's automobile and to find an unusual amount of money in her possession are circumstances tending to negate an intent to distribute.
The Commonwealth had the burden to prove by evidence beyond a reasonable doubt that Dukes possessed the marijuana with intent to distribute. We conclude, however, that the circumstantial evidence of such intent, when viewed in the light most favorable to the Commonwealth, fails to "exclude every reasonable hypothesis of innocence." Accordingly, we will reverse the judgment of the trial court and remand the case for a new trial for possession of marijuana in violation of Code Sec. 18.2-250.1, if the Commonwealth be so advised.
Reversed and remanded.