Monroe v. Com., 0972-85

• Decision Date: 21 April 1987
• Docket Number: No. 0972-85,0972-85
• Citation: 355 S.E.2d 336,4 Va.App. 154
• Parties: Gary Ambro MONROE v. COMMONWEALTH of Virginia. Record
• Court: Virginia Court of Appeals

Page 336

355 S.E.2d 336

4 Va.App. 154

Gary Ambro MONROE v. COMMONWEALTH of Virginia.

Record No. 0972-85.

Court of Appeals of Virginia.

April 21, 1987.

John H. Maclin, IV, Petersburg, for appellant.

Thomas C. Daniel, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellee.

Present: BARROW, BENTON and COLE, JJ.

BARROW, Judge.

This is an appeal of a conviction of possession of marijuana with intent to distribute in which the appellant contends that the evidence was insufficient to prove that he intended to distribute the marijuana. We disagree and affirm the trial court.

From an alley behind the defendant's home, police officers saw marijuana plants growing in two separate containers outside of the residence. The first container held one marijuana plant approximately eighteen to twenty inches tall, and the second container held approximately twelve to fifteen marijuana plants.

The police officers obtained a search warrant for the residence and returned to the defendant's home. The defendant identified himself to the police officers and volunteered to show them where he kept the marijuana.

He took the police officers to a closet in a bedroom where he pulled out a blue shoe box containing nine clear plastic bags. These bags contained marijuana weighing a total of 7.9 ounces.

Several other packages containing marijuana were also discovered in the house. These included a brown paper bag inside of which was a plastic bag containing .95 pounds of marijuana, two other plastic bags containing a total of 1.3 ounces of marijuana and a glass dish containing two plastic bags of marijuana weighing a total of 2.1 ounces.

The defendant admitted that the marijuana was his and that he was a drug abuser and smoked anywhere from an ounce to a quarter pound of marijuana a day. He also introduced expert testimony confirming his drug dependency. The defendant argues that the marijuana was for his own personal consumption, and not for resale.

We hold that the evidence was sufficient to support the trial court's conclusion that the defendant intended to distribute the marijuana. When considered in relationship with one another, the presence of the growing plants, the method of packaging of the marijuana found in the house, and the quantity found were indicative of an intent to distribute.

The quantity of a controlled substance is a factor which may indicate the purpose for which it is possessed. Possession of a small quantity creates an inference that the drug is for personal use. See Dutton v. Commonwealth, 220 Va. 762, 765, 263 S.E.2d 52, 54 (1980). On the other hand, possession of a quantity greater than that ordinarily possessed for one's personal use may be sufficient to establish an intent to distribute it. Hunter v. Commonwealth, 213 Va. 569, 570, 193 S.E.2d 779, 780 (1973). Thus, when the proof of intent to distribute is based upon circumstantial evidence, the quantity possessed is "a circumstance to be considered." Dukes v. Commonwealth, 227 Va. 119, 122, 313 S.E.2d 382, 383 (1984).

The method of packaging of the controlled substance is also a factor which may be considered in determining the purpose for which it is being held. Colbert v. Commonwealth, 219 Va. 1, 4, 244 S.E.2d 748, 749 (1978). However, even if the substance is packaged for distribution, there must be additional evidence to preclude the inference that it was purchased in the packaged form for personal use rather than being held in that fashion for distribution. Dukes v. Commonwealth, 227 Va. at 123, 313 S.E.2d at 384; Dutton v. Commonwealth, 220 Va. at 765, 263 S.E.2d at 54; Wells v. Commonwealth, 2 Va.App. 549, 553, 347 S.E.2d 139, 141 (1986). The additional evidence available to preclude such inference in this case included the presence of a large, or bulk, quantity from which smaller packages may have been made up for distribution. See Colbert v. Commonwealth, 219 Va. at 4, 244 S.E.2d at 249. The trier of fact may reasonably have found that the brown paper bag containing almost a pound of marijuana was the source from which the nine plastic bags, each containing slightly less than an ounce, was derived. Id.

Similarly, the evidence of the presence of growing marijuana plants may have precluded an inference that the smaller bags of marijuana were purchased in that form for personal use rather than being held in that manner to facilitate distribution. "[T]he supervised growth of many marijuana plants" indicates "a continuing enterprise in the production and distribution of marijuana." Pierceall v. Commonwealth, 218 Va. 1016, 1023, 243 S.E.2d 222, 226 (1978) cert. denied, 439 U.S. 1067, 99 S.Ct. 833, 59 L.Ed.2d 32 (1979). Three stages in the production and distribution of marijuana, growing plants, dried material packaged in bulk and smaller packages for distribution, were all present and admitted to be in the defendant's possession.

For these reasons we conclude that the evidence was sufficient for the trier of fact to find that the defendant possessed this marijuana with intent to distribute. Accordingly the judgment of conviction is affirmed.

Affirmed.

BENTON, Judge, dissenting.

I dissent because I believe that the evidence, while sufficient to prove possession of marijuana, was insufficient to establish an intent to distribute beyond a reasonable doubt.

It is elementary that where, as here, an indictment charges an offense which consists of an act combined with a particular intent, proof of the intent is essential to conviction.... Because direct proof is often impossible in this type case, intent may be shown by circumstantial evidence. Existence of the intent, however, cannot be based upon surmise or speculation.

Patterson v. Commonwealth, 215 Va. 698, 699, 213 S.E.2d 752, 753 (1975) (citations omitted).

I believe that the three circumstances (quantity, packaging of the marijuana, and presence of growing plants) relied upon to prove intent independently do not support the conviction and, when considered collectively do not meet the Commonwealth's burden of establishing intent to distribute beyond a reasonable doubt. The evidence of substantial use of marijuana by Monroe and his wife provides a reasonable hypothesis of innocence as to the charge that Monroe intended to distribute the marijuana. The evidence in this record, when viewed in the light most favorable to the Commonwealth, fails to exclude that reasonable hypothesis of innocence. See Dukes v. Commonwealth, 227 Va. 119, 123, 313 S.E.2d 382, 384 (1984).

A total quantity of...