Colbert v. Com., 770950

• Decision Date: 09 June 1978
• Docket Number: No. 770950,770950
• Parties: Rodney E. COLBERT, Jr. v. COMMONWEALTH of Virginia. Record
• Court: Virginia Supreme Court

Page 748

244 S.E.2d 748

219 Va. 1

Rodney E. COLBERT, Jr. v. COMMONWEALTH of Virginia.

Record No. 770950.

Supreme Court of Virginia.

June 9, 1978.

James B. Fray, Rustburg, for plaintiff in error.

Vera S. Warthen, Asst. Atty. Gen. (Marshall Coleman, Atty. Gen., on brief), for defendant in error.

Before I'ANSON, C. J., and CARRICO, HARRISON, COCHRAN, HARMAN, POFF and COMPTON, JJ.

PER CURIAM.

Convicted by a jury of possession of marijuana with intent to distribute, the defendant, Rodney E. Colbert, Jr., was sentenced in accordance with the jury's verdict to serve five years in the penitentiary and to pay a fine of $500. The defendant seeks reversal on the ground that the evidence was insufficient to sustain his conviction.

The record shows that on the night of July 17-18, 1976, a rock concert was held near Rustburg, in Campbell County. During the course of the evening, a fight erupted at the rear of a van parked on the concert grounds. Police officers were called, and they quelled the disturbance. After the fight had ended, one of the officers observed the defendant, apparently alone, driving the van away from the site of the concert.

A short time later, two of the police officers observed the same van parked on the grounds of a nearby elementary school. Because "trespassing on school property after dark" is forbidden, the officers proceeded to "check out the van." They found the defendant alone in the front of the van, seated in a bucket seat on the passenger side. He told the officers that the vehicle was "out of gas" and that he had "sent somebody to get some gas."

When one of the officers walked around the front of the van to check the gas gauge, he observed the defendant "pick up a white styrofoam bucket . . . from between his legs and place it behind the seat." The other officer observed "a bag of what seemed like marijuana over the sun visor." When asked about the ownership of the bag, the defendant refused to answer. Thereupon, he was arrested and advised of his "rights."

Other police officers arrived, and a search was conducted of the van. In the styrofoam bucket the defendant had placed behind the seat, the officers found five "nickel bags" of suspected marijuana. On the seat occupied by the defendant, the officers discovered a large plastic bag containing "some residue" of a substance suspected to be marijuana.

The defendant had on his person "over $200 in $10's, $20's and $1's and $5's." The money "wasn't folded up or anything together, but it was just stuffed down in (his pocket)."

The van was registered in the name of the defendant's former wife. The defendant told the police officers, however, that he had paid $1,200 for the vehicle, and he became upset when informed it would be impounded.

Laboratory analysis proved that all the bags discovered in the van contained marijuana. In total, 54.2 grams, or 1.91 ounces, were seized.

At trial, the defendant did not testify. He did call as a witness, however, a "juvenile" the officers had found asleep in the rear of the van at the time the defendant was arrested. The "juvenile," who was "getting a ride home" with the defendant, testified that, when the van left the rock concert, the vehicle was operated by "some girl." The witness stated further he had been told by the defendant that, when the van became disabled at the elementary school, the girl had "gone to get some...