Cahoon v. Commonwealth
| Decision Date | 29 March 2016 |
| Docket Number | Record No. 0781-15-2 |
| Court | Virginia Court of Appeals |
| Parties | WAYNE SCOTT CAHOON v. COMMONWEALTH OF VIRGINIA |
UNPUBLISHED
Present: Judges Petty, Alston and Russell
Argued at Richmond, Virginia
FROM THE CIRCUIT COURT OF SPOTSYLVANIA COUNTY
Jenna C. Nacht, Assistant Public Defender, for appellant.
John W. Blanton, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.
Wayne Scott Cahoon, appellant, was convicted in a bench trial of possessing a Schedule I or II controlled substance with the intent to distribute in violation of Code § 18.2-248, and conspiring to distribute a Schedule I or II controlled substance in violation of Code §§ 18.2-248 and 18.2-256. On appeal, appellant challenges the sufficiency of the evidence for each conviction. Finding that the evidence was sufficient to allow a reasonable factfinder to conclude beyond a reasonable doubt that appellant committed both offenses, we affirm the convictions.
"Under well-settled principles of appellate review, we consider the evidence presented at trial in the light most favorable to the Commonwealth, the prevailing party below." Smallwood v. Commonwealth, 278 Va. 625, 629, 688 S.E.2d 154, 156 (2009) (quoting Bolden v. Commonwealth, 275 Va. 144, 148, 654 S.E.2d 584, 586 (2008)). This principle requires us to"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 to be drawn therefrom." Parks v. Commonwealth, 221 Va. 492, 498, 270 S.E.2d 755, 759 (1980) (emphasis and internal quotation marks omitted).
So viewed, the evidence established that, on November 23, 2013, Spotsylvania County Sheriff's Deputy Mark Friedman observed a driver and passenger in a vehicle that was familiar to Deputy Friedman. He followed the vehicle after concluding that neither individual inside the vehicle was its owner, a local resident. Additionally, Deputy Friedman found it unusual that both the driver and the passenger continually were looking at him using the car's side and rearview mirrors. He followed the vehicle southbound on Route 1 until the vehicle entered the turn lane to access the ramp for Interstate 95 South. Deputy Friedman did not follow the vehicle onto the interstate. He passed it as he continued southbound on Route 1.
Still suspicious of what he had observed, Deputy Friedman stayed in the general vicinity of where he first observed the vehicle to see if it returned. In short order, the vehicle returned to the area and Deputy Friedman resumed following it. He followed the vehicle into a gas station parking lot. After appellant parked the vehicle and both occupants had exited, Deputy Friedman approached them, identified himself, and asked if he could speak with them.
Appellant, a Spotsylvania resident, was the driver of the vehicle and his brother, Roy, had been in the passenger seat. Upon request, appellant provided Deputy Friedman with a Virginia identification card and Friedman was able to determine that appellant was not licensed to drive in Virginia. Roy, a Massachusetts resident, provided an identification card issued by Massachusetts and had no driver's license.
Both appellant and Roy consented to the deputy's search of both their persons and the car. Deputy Friedman recovered from appellant's wallet a folded sheet of paper upon which was written:"60 oxy 80s street value 4800.00" and "180 oxy 30$ street value 5400." His search of Roy revealed a prescription pill bottle, in Roy's name, containing Oxycodone. From inside the vehicle, Deputy Friedman recovered, among other things, a bottle of morphine pills prescribed in appellant's name, a notebook entitled "Roy's doc book and dates," and multiple prescriptions in Roy's name that all had been written that day by a doctor whose office is in Arlington.
Deputy Friedman placed both appellant and Roy under arrest and read them their rights pursuant to Miranda. Deputy Friedman noted that Roy's Oxycodone prescription had been filled approximately two hours earlier in Fairfax and that fifty pills were missing. When questioned about the missing pills, Roy responded that he had consumed them. The prescription for morphine in appellant's name had been filled on November 19, 2013, mere days prior to the encounter. Of the pills prescribed, fifty pills were missing from that container. Appellant initially stated that the missing pills were in a pocket of a jacket at his home, but changed his story and ultimately stated that he had consumed all of the missing morphine.1
Deputy Friedman testified that neither appellant nor Roy appeared to be under the influence of any drugs during this encounter. Both individuals denied selling any drugs, and Deputy Friedman did not find amounts of money that one might associate with illicit drug sales.
At trial, the court accepted Detective Ray Haney as an expert regarding the illegal prescription drug market in Spotsylvania County. Detective Haney reviewed the piece of paper taken from appellant's wallet and opined that "60" would refer to the quantity of pills and "80" to the milligrams contained in each pill. According to Detective Haney, the note indicated that selling sixty of those pills would yield $4,800 on the street. Likewise, selling 180 of the thirty milligram pills would yield $5,400. He explained that this is consistent with the street value of Oxycodone in Spotsylvania, which is approximately $1 per milligram. He also testified that thesheet of paper, combined with notes in the notebook Deputy Friedman had found and the number of pills missing from both prescription bottles, indicated to him that the notebook was used to keep track of drug sales.
Detective Haney, who had been called to the scene of the arrest, testified that he did not observe appellant or Roy acting as if either had recently consumed significant doses of the medications in question. He stated that, based on the dates of the prescriptions, the number of pills missing from each bottle, and the note found in appellant's wallet, it was his opinion that the evidence was inconsistent with personal use of the medications in question.
The trial court found appellant guilty of possession with intent to distribute a controlled substance and conspiracy to distribute a controlled substance.
This appeal followed.
Appellant acknowledges that he possessed the morphine, which is a Schedule II controlled substance. He argues that the evidence was insufficient to allow the factfinder to conclude that he possessed the drug with the intent to distribute. We disagree.
"Intent is a state of mind that may be proved by an accused's acts or by his statements and that may be shown by circumstantial evidence." Wilson v. Commonwealth, 249 Va. 95, 101, 452 S.E.2d 669, 673-74 (1995) (quoting Wright v. Commonwealth, 245 Va. 177, 193, 427 S.E.2d 379, 390 (1993)). "Circumstantial evidence, if sufficiently convincing, is as competent and entitled to the same weight as direct testimony." McCain v. Commonwealth, 261 Va. 483, 493, 545 S.E.2d 541, 547 (2001).
This Court and the Supreme Court of Virginia have recognized several factors that are probative circumstantial evidence of intent to distribute a controlled substance. Williams v.Commonwealth, 52 Va. App. 194, 202, 662 S.E.2d 627, 631 (2008). Expert testimony, usually that of a police officer familiar with the local market in the controlled substance, is routinely offered to prove whether the drugs seized are more consistent with personal use or likely intended for distribution. Askew v. Commonwealth, 40 Va. App. 104, 109-10, 578 S.E.2d 58, 61 (2003).
"The quantum of evidence necessary to prove an intent to distribute depends on the facts and circumstances of each case." Id. at 110, 578 S.E.2d at 61. Moreover, even where no single piece of evidence sufficiently supports a finding on its own, "the 'combined force of many concurrent and related circumstances, each insufficient in itself, may lead a reasonable mind irresistibly to a conclusion.'" Derr v. Commonwealth, 242 Va. 413, 425, 410 S.E.2d 662, 669 (1991) (quoting Stamper v. Commonwealth, 220 Va. 260, 273, 257 S.E.2d 808, 818 (1979)). Ultimately, it is for the factfinder "to decide whether the defendant acted with criminal intent in the commission of the crimes." Griggs v. Commonwealth, 220 Va. 46, 51, 255 S.E.2d 475, 478 (1979).
Here, based on the expert testimony and circumstantial evidence presented at trial, the trier of fact reasonably could conclude that appellant possessed the morphine with the intent to distribute it. Appellant had a prescription for morphine that was missing fifty pills in just a period of days. The expert testimony established that such a consumption pattern was inconsistent with personal use, and the evidence established that neither occupant of the vehicle appeared to be under the influence of any substance, including the medications at issue. In addition to drawing the conclusion that appellant had not consumed the pills, the factfinder was entitled to conclude that appellant neither had abandoned nor misplaced the morphine. See Ward v. Commonwealth, 47 Va. App. 733, 753 n.4, 627 S.E.2d 520, 530 n.4 (2006) (), aff'd on other grounds, 273 Va. 211, 639 S.E.2d 269 (2007).
Finally, appellant's inconsistent stories provided the factfinder with additional evidence of his guilt. His two versions of what had happened to the missing morphine—that the pills were in the pocket of a jacket versus that he had consumed them all—are in direct conflict; thus, at a minimum, appellant told at least one lie regarding the disposition of the pills. Given all of the evidence, the factfinder reasonably...
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