Davis v. Com., 1260-89-3

• Decision Date: 01 July 1991
• Docket Number: No. 1260-89-3,1260-89-3
• Citation: 12 Va.App. 728,406 S.E.2d 922
• Parties: Roger Trenton DAVIS v. COMMONWEALTH of Virginia. Record
• Court: Virginia Court of Appeals

Page 922

406 S.E.2d 922

12 Va.App. 728

Roger Trenton DAVIS v. COMMONWEALTH of Virginia.

Record No. 1260-89-3.

Court of Appeals of Virginia.

July 1, 1991.

Arthur P. Strickland (Strickland & Rogers, on brief), Roanoke, for appellant.

Richard B. Smith, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellee.

Present: MOON, KEENAN and COLEMAN, JJ.

KEENAN, Judge.

Roger T. Davis was convicted by a jury of possessing more than one-half ounce, but not more than five pounds, of marijuana with intent to distribute in violation of Code § 18.2-248.1. The issues presented in this appeal are: (1) whether the trial court erred in admitting into evidence a police officer's expert testimony that, based on his experience, an individual's possession of 6.88 ounces of marijuana is inconsistent with personal use; and (2) whether the evidence is sufficient to support Davis' conviction. We find that the police officer's expert testimony did not constitute an opinion on the ultimate issue to be decided by the jury. We also find that the evidence is sufficient to support Davis' conviction. Accordingly, we affirm the decision of the trial court.

The evidence at trial showed that on January 5, 1989, a search warrant was executed at Davis' home. Davis was searched and no drugs were found on his person. He then told the officers that there was marijuana in the basement. The officers searched the basement and found a white plastic bag containing 6.88 ounces of marijuana. They also found a "stem" from a marijuana plant, scissors and numerous seeds. Davis did not deny ownership of the marijuana. The search of the basement further revealed two boxes of sandwich baggies and twist ties. One box of baggies was sitting on top of some small handscales. The other box was found adjacent to the scales. A set of weights divided into grams was also found with the scales.

Detective A.M. Lee, of the Roanoke Vice Bureau, was qualified and accepted by the trial court as an expert on the subject of drug trafficking. He testified that marijuana is usually distributed in sandwich baggies similar to those found in the search of Davis' basement. He further testified that twist ties are customarily used to secure the bags of marijuana for sale, especially the $10 bags.

Lee also testified that, based on his experience, a marijuana user ordinarily keeps an ounce (28 grams) or less of the drug on hand, and that possession of 6.88 ounces of marijuana is not consistent with personal use. Lee further testified that .4 grams of marijuana is used to make one marijuana cigarette.

After the Commonwealth rested its case, Richard Wilson testified on Davis' behalf. Wilson was Davis' cousin and was present, along with Davis' wife, at the house the day it was searched. Wilson testified that he had purchased the marijuana in question earlier that day, and that when Davis discovered him smoking a marijuana cigarette, he told Wilson to get it out of the house. Wilson further testified that he then put the marijuana in a brown paper bag and placed it in the box in which it was found. Even though he was present when the search warrant was executed, Wilson did not claim ownership of the marijuana at that time. The evidence further showed that Wilson had been convicted of three felonies, was employed by Davis, and knew he could not be prosecuted for any information to which he testified in court.

After the defense rested its case, the Commonwealth recalled Detective Lee as a witness. Lee testified that the marijuana was not found in a brown paper bag, as Wilson had claimed, and further, that no brown paper bags were found by the police anywhere in the basement.

On appeal, Davis first argues that the trial court erred in permitting Detective Lee to testify that, based on his experience, possession of the amount of 6.88 ounces of marijuana is inconsistent with personal use. Davis contends that in allowing Lee to testify in this manner, the trial court erroneously permitted him to offer an opinion on an ultimate fact in issue, whether Davis intended to distribute the marijuana seized. In response, the Commonwealth asserts that Detective Lee's testimony did not express an opinion on an ultimate issue of fact for the jury's determination. It argues that the ultimate issue for the jury's determination was whether Davis possessed the marijuana with the intent to distribute it, not whether possession of the amount of 6.88 ounces of marijuana was inconsistent with personal use.

This issue has not been addressed previously by the Supreme Court or by this Court. It is well settled, however, that an expert witness is not permitted to express an opinion as to an ultimate issue of fact that must be determined by the trier of fact. Bond v. Commonwealth, 226 Va. 534, 538-39, 311 S.E.2d 769, 771-72 (1984). We must, therefore, determine whether Detective Lee's testimony violated this long-established rule.

The Supreme Court of Connecticut considered a similar issue in State v. Williams, 169 Conn. 322, 363 A.2d 72 (1975). There, the prosecutor asked the narcotics expert whether, in his experience it would be usual or unusual to find a person who is solely a narcotics user in possession of as many as forty-five bags of heroin at one time. The expert replied that it would be unusual. The court held this testimony admissible, finding that the witness never expressed an opinion as to the ultimate issue of fact, that is, whether the defendant intended to distribute the narcotics he was found to possess. Id. at 334, 363 A.2d at 79.

We reach the same result under the facts before us. Whether Davis was holding the 6.88 ounces of marijuana with the intent to distribute was an ultimate issue of fact for the...