Holloway v. Commonwealth Of Va., Record No. 0828-08-1.

• Citation: 696 S.E.2d 247,56 Va.App. 667
• Decision Date: 10 August 2010
• Docket Number: Record No. 0828-08-1.
• Parties: Kevin L. HOLLOWAYv.COMMONWEALTH of Virginia.
• Court: Court of Appeals of Virginia

56 Va.App. 667

696 S.E.2d 247

Kevin L. HOLLOWAYv.COMMONWEALTH of Virginia.

Record No. 0828-08-1.

Court of Appeals of Virginia.

Aug. 10, 2010.

COPYRIGHT MATERIAL OMITTED

S. Jane Chittom, Appellate Defender (Office of the Appellate Defender, on brief), for appellant.

Leah A. Darron, Senior Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.

Present: ELDER, ALSTON, JJ., and CLEMENTS, Senior Judge.

UPON A REHEARING

ALSTON, Judge.

Kevin L. Holloway (“appellant”) was convicted of possession with intent to distribute an imitation controlled substance, in violation of Code § 18.2-248, and assault and battery of a law enforcement officer, in violation of Code § 18.2-57. On appeal, appellant contends the evidence was insufficient to prove he possessed an imitation controlled substance with the intent to distribute. Further, appellant argues the evidence failed to prove he possessed the requisite state of mind to sustain the conviction of assault and battery of a law enforcement officer.

On January 26, 2010, we reversed appellant's conviction for possession with intent to distribute an imitation controlled substance and affirmed appellant's conviction for assault and battery of a law enforcement officer. Thereafter, we granted the Commonwealth's petition for rehearing by the panel, pursuant to Rule 5A:35(A). Upon rehearing, we find the evidence was insufficient to show that appellant intended to distribute the imitation controlled substance, and we reverse appellant's conviction for possession with intent to distribute. However, for the following reasons, we affirm the trial court's decision regarding the conviction for assault and battery of a law enforcement officer.

I. BACKGROUND

A. Possession with Intent to Distribute

On the evening of August 19, 2006, the Portsmouth City Police Department received a report of a man in black clothing carrying a handgun on the porch of a Portsmouth residence. When officers arrived, they observed appellant standing on the porch of the home. Appellant, who wore black clothing, matched the description provided to the officers by the police department dispatcher. One of the responding officers, Officer R. Riddle, also observed another male, who was wearing a white top, five to seven feet in front of the porch. When the officers pulled up to the residence, the male in the white top began walking toward the street. Because of the report that a “man in all black” had a gun, the officers focused their attention on appellant. There was a low wall enclosing the porch, and the officers were unable to see appellant's hands, which were by his sides. The officers ordered appellant to place his hands where they could see them, and step out from behind the porch's wall.¹

As Officer Riddle approached appellant, he witnessed appellant make a “pitching motion” with his left hand toward the front door of the residence. Officer Riddle was unable to discern what appellant threw. The officers ordered appellant to the ground, and as Officer Riddle advanced toward the house, he observed a plastic bag (“corner baggie”) resting on the porch in the area where appellant directed the pitching motion. Approximately fifteen to thirty seconds elapsed between the time appellant moved his arm and Officer Riddle's observation of the corner baggie. The corner baggie contained three smaller corner baggies, each holding what appeared to be $20 worth of crack cocaine. Testing later revealed the substance was not actually crack cocaine.

During the officers' interaction with appellant, no one else entered the porch area. The officers did not find any scales, packaging materials, or ingestion devices, either around the porch or on appellant's person. Officer Riddle testified that appellant did not have any money on his person, or if he did, it was “a minimal amount, not worth recovering.” Appellant was arrested that evening.

At trial, Detective K. Gavin qualified, without objection, as an expert in the use, packaging, and distribution of narcotics. He testified that possession of three individually wrapped rocks of an imitation controlled substance, without possession of a smoking device, is inconsistent with personal use. He stated, “[T]here is no reason to possess an imitation controlled substance unless [an individual was] either ripped off or ... possessed it to distribute.” Detective Gavin dismissed the possibility that an individual would unknowingly purchase imitation crack cocaine in three individually wrapped baggies apparently worth $20 each, because “[i]t is not cost effective for a user to purchase three twenty-dollar rocks individually, packaged that way, for sixty dollars. They could get a lot more crack if they purchase[d] it in a larger quantity.” Detective Gavin opined that a regular cocaine user would know that purchasing three twenty-dollar packages of crack cocaine was not cost effective and that a “new cocaine user ... wouldn't have been purchasing three rocks at the same time. That's a lot more than a new cocaine user would attempt.” However, when asked whether “all cocaine users, everyone who buys crack, shops around for the best deal, like Wal-Mart [sic],” Detective Gavin conceded that he could confirm only “that is what most ... users do.” (Emphasis added).

Detective Gavin acknowledged that an individual may not carry a crack pipe or other ingestion device on their person if they bought the crack cocaine for later use; however, he stated that “normal user[s]” “maintain a stem or crack pipe on their person when they purchase crack cocaine.”

After the close of the Commonwealth's case, appellant moved to strike the evidence on the ground that the evidence was insufficient to show that appellant possessed the imitation substance with the intent to distribute, because the evidence left open the reasonable hypothesis that appellant had been “ripped off” and possessed the imitation substance for personal use. The trial court denied the motion and convicted appellant of possession of an imitation controlled substance with intent to distribute.

B. Assault and Battery of a Law Enforcement Officer

Following appellant's arrest, Officer Riddle transported appellant to the magistrate's office. There, appellant became belligerent toward the magistrate, who instructed Officer Riddle to remove appellant from her office. As Officer Riddle escorted appellant down the hallway, appellant stopped walking and “slammed his body back” into the officer's body, causing Officer Riddle “to go off balance.” Appellant began to pull away from the officer, who subsequently “slammed [appellant] down on the ground, [and] got on top of him to try to get him under control.” During the struggle with the officer, appellant kicked Officer Riddle's right leg, and then attempted to kick Officer Riddle in the head. Officer Riddle avoided being struck in the face by moving his head just before the blow landed.

During his motion to strike at trial, appellant argued that there was insufficient evidence to convict appellant of assault and battery of a police officer because there was no evidence that the kick or attempt to kick were intentional. Rather, appellant argued that he was merely struggling after being forced to the ground. The trial court overruled the motion, and found appellant guilty of assault and battery of a police officer.

Appellant timely noted his appeal to both charges, and this appeal followed.

II. ANALYSIS

On appeal, “we review the evidence in the ‘light most favorable’ to the Commonwealth.” Pryor v. Commonwealth, 48 Va.App. 1, 4, 628 S.E.2d 47, 48 (2006) (quoting Commonwealth v. Hudson, 265 Va. 505, 514, 578 S.E.2d 781, 786 (2003)). “Viewing the record through this evidentiary prism 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.’ ” Cooper v. Commonwealth, 54 Va.App. 558, 562, 680 S.E.2d 361, 363 (2009) (quoting Parks v. Commonwealth, 221 Va. 492, 498, 270 S.E.2d 755, 759 (1980) (emphasis omitted)). “The issue upon appellate review is ‘whether, after viewing the evidence in the light most favorable to the prosecution any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” Maxwell v. Commonwealth, 275 Va. 437, 442, 657 S.E.2d 499, 502 (2008) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979)).

A. Possession with Intent to Distribute

On appeal, appellant argues that while the evidence may be sufficient to prove possession of the imitation controlled substance, it was insufficient to establish that he possessed the substance with the intent to distribute under Code § 18.2-248(A). Code § 18.2-248(A) states, in pertinent part: “Except as authorized in the Drug Control Act ..., it shall be unlawful for any person to manufacture, sell, give, distribute, or possess with intent to manufacture, sell, give or distribute a controlled substance or an imitation controlled substance.”

In order to prove intent to distribute, the Commonwealth may rely on circumstantial evidence, so long as it excludes every reasonable hypothesis of innocence. See Emerson v. Commonwealth, 43 Va.App. 263, 277, 597 S.E.2d 242, 249 (2004); Servis v. Commonwealth, 6 Va.App. 507, 524, 371 S.E.2d 156, 165 (1988). “ ‘Whether an alternative hypothesis of innocence is reasonable is a question of fact and, therefore, is binding on appeal unless plainly wrong.’ ” Emerson, 43 Va.App. at 277, 597 S.E.2d at 249 (quoting Archer v. Commonwealth, 26 Va.App. 1, 12-13, 492 S.E.2d 826, 832 (1997)); see also Haskins v. Commonwealth, 44 Va.App. 1, 9, 602 S.E.2d 402, 406 (2004) (holding that where the factfinder has rejected the hypothesis of innocence, “that determination cannot be overturned as arbitrary unless no rational factfinder would have come to that...