Holloway v. Commonwealth of Va..

Decision Date15 February 2011
Docket NumberRecord No. 0828–08–1.
PartiesKevin L. HOLLOWAYv.COMMONWEALTH of Virginia.
CourtVirginia Court of Appeals

57 Va.App. 658
705 S.E.2d 510


Record No. 0828–08–1.

Court of Appeals of Virginia, Richmond.

Feb. 15, 2011.

[705 S.E.2d 511]

S. Jane Chittom (Office of the Capital Defender, on briefs), for appellant.Leah A. Darron, Senior Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.Present: FELTON, C.J., ELDER, FRANK, HUMPHREYS, KELSEY, McCLANAHAN, HALEY, PETTY, BEALES, POWELL and ALSTON, JJ.

FRANK, Judge.

[57 Va.App. 661] Kevin L. Holloway (“appellant”) was convicted, in a bench trial, of possession with intent to distribute an imitation controlled substance, in violation of Code § 18.2–248(G), and assault and battery of a law enforcement officer, in violation of Code § 18.2–57. On a rehearing, a divided panel reversed the possession with the intent to distribute conviction, but affirmed the conviction for assault and battery of a law enforcement officer.1 See Holloway v. Commonwealth, 56 Va.App. 667, 696 S.E.2d 247 (2010).

We granted the Commonwealth's petition for rehearing en banc and stayed the mandate of the panel's decision. On rehearing en banc, we now lift the stay and conclude the evidence was sufficient to prove an intent to distribute. We affirm appellant's conviction on that charge.


On the evening of August 19, 2006, Portsmouth police responded to a residence and observed appellant standing on [57 Va.App. 662] the porch. They also observed another male standing in front of the porch. As the police pulled up to the residence, the second male began walking to the street. He was not apprehended.

The police observed appellant making a “pitching motion” with his left hand toward the front door. The officer was unable to determine what appellant threw. Appellant was ordered to the ground. As one officer advanced toward the house, he observed a plastic bag (“corner baggie”) resting on the porch, in the area of appellant's “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

[705 S.E.2d 512]

holding what appeared to be $20 worth of crack cocaine. Testing later revealed the substance was not crack cocaine, but an imitation substance.

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 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 [57 Va.App. 663] 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.”

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.”

The trial court found appellant guilty of possession with the intent to distribute an imitation controlled substance. This appeal follows.

A. Standard of Appellate Review

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)).

We examine a trial court's factfinding “with the highest degree of appellate deference.” Thomas v. Commonwealth, 48 Va.App. 605, 608, 633 S.E.2d 229, 231 (2006). An appellate court does not “ask itself whether it believes that the evidence [57 Va.App. 664] at the trial established guilt beyond a reasonable doubt.” Williams v. Commonwealth, 278 Va. 190, 193, 677 S.E.2d 280, 282 (2009) (emphasis in original) (quoting Jackson v. Virginia, 443 U.S. 307, 318–19, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979)). Instead, the only “relevant question is, after reviewing the evidence in the light most favorable to the prosecution, whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Sullivan v. Commonwealth, 280 Va. 672, 676, 701 S.E.2d 61, 63 (2010) (citing Jackson, 443 U.S. at 319, 99 S.Ct. at 2789). We are “not permitted to reweigh the evidence,” Nusbaum v. Berlin, 273 Va. 385, 408, 641 S.E.2d 494, 507 (2007), because appellate courts have no authority “to preside de novo over a second trial,” Haskins v. Commonwealth, 44 Va.App. 1, 11, 602 S.E.2d 402, 407 (2004).

[705 S.E.2d 513]

This deferential standard “applies not only to the historical facts themselves, but the inferences from those facts as well.” Clanton v. Commonwealth, 53 Va.App. 561, 566, 673 S.E.2d 904, 907 (2009) ( en banc ) (citation omitted); see also Sullivan, 280 Va. at 676, 701 S.E.2d at 63–64. Thus, a factfinder may “draw reasonable inferences from basic facts to ultimate facts,” Haskins, 44 Va.App. at 10, 602 S.E.2d at 406 (citation omitted), unless doing so would push “into the realm of non sequitur,Thomas, 48 Va.App. at 608, 633 S.E.2d at 231 (citation omitted).

In a bench trial, a trial judge's “major role is the determination of fact, and with experience in fulfilling that role comes expertise.” Haskins, 44 Va.App. at 11, 602 S.E.2d at 407 (citation omitted). Consequently, “we do not substitute our judgment for that of the fact finder,” Hamilton v. Commonwealth, 279 Va. 94, 105, 688 S.E.2d 168, 175 (2010), “even if our opinion were to differ,” Ferguson v. Commonwealth, 51 Va.App. 427, 435, 658 S.E.2d 692, 696 (2008) ( en banc ). “If reasonable jurists could disagree about the probative force of the facts, we have no authority to substitute our views for those of the trial judge.” Campbell v. Commonwealth, 39 Va.App. 180, 186, 571 S.E.2d 906, 909 (2002).

[57 Va.App. 665] B. Sufficiency—Intent to Distribute

Appellant argues that the evidence is insufficient to prove that he had the intent to distribute 2 in violation of Code § 18.2–248(A).3 Appellant essentially contends the evidence gives rise to a reasonable hypothesis of innocence, namely that he possessed the imitation crack cocaine for personal use. Correctly observing the entire proof of “intent to distribute” is based on Detective Gavin's testimony, appellant contends that Gavin's testimony was ambiguous at best.

“Where an offense consists of an act combined with a particular intent, proof of the intent is essential to the conviction.” Servis v. Commonwealth, 6 Va.App. 507, 524, 371 S.E.2d 156, 165 (1988). “Because direct proof of intent [to distribute drugs, or imitation drugs] is often impossible, it must be shown by circumstantial evidence.” Id. “Circumstantial evidence is as competent and is entitled to as much weight as direct evidence, provided it is sufficiently convincing to exclude every reasonable hypothesis except that of guilt.” Coleman v. Commonwealth, 226 Va. 31, 53, 307 S.E.2d 864, 876 (1983). Moreover,

[i]n considering an appellant's alternate hypothesis of innocence in a circumstantial evidence case, we must determine “not whether there is some evidence to support” the appellant's hypothesis of innocence, but, rather, “whether a reasonable [fact finder], upon consideration of all the evidence, could have rejected [the appellant's] theories in his defense and found him guilty of [the charged crime] beyond a reasonable doubt.” [ Commonwealth] v. [ Hudson ], 265 Va. 505, 513, 578 S.E.2d 781, 785 (2003) (internal quotations omitted). Additionally, “circumstantial evidence is not viewed in isolation.” Id. at 514, 578 S.E.2d at 786. “ ‘While [57 Va.App. 666] no single piece of evidence may be sufficient, 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) (quoting Karnes v. Commonwealth, 125 Va. 758, 764, 99 S.E. 562, 564 (1919))). “Whether an alternate hypothesis of innocence is reasonable...

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