Williams v. Com.

• Decision Date: 24 June 2008
• Docket Number: Record No. 0996-07-1.
• Citation: 52 Va. App. 194,662 S.E.2d 627
• Parties: Ricky C. WILLIAMS v. COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

662 S.E.2d 627

52 Va. App. 194

Ricky C. WILLIAMS v. COMMONWEALTH of Virginia.

Record No. 0996-07-1.

Court of Appeals of Virginia, Chesapeake.

June 24, 2008.

Anthony J. Nicolo (Ferrell, Sayer & Nicolo, P.C., on brief), Portsmouth, for appellant.

Josephine F. Whalen, Assistant Attorney General II (Robert F. McDonnell, Attorney General, on brief), for appellee.

Present: FELTON, C.J., HUMPHREYS and MILLETTE, JJ.

HUMPHREYS, Judge.

Ricky C. Williams ("Williams") appeals his convictions for possession of cocaine with intent to distribute and possession of methadone with intent to distribute, both in violation of Code § 18.2-248. Williams argues that the evidence was insufficient to convict him of either crime because the Commonwealth did not sufficiently prove that he had the intent to distribute the drugs. For the following reasons, we conclude that the evidence was legally sufficient and affirm the decision of the trial court.

I. Background

When reviewing a challenge to the sufficiency of the evidence, "we examine the evidence in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom." Slade v. Commonwealth, 43 Va.App. 61, 69, 596 S.E.2d 90, 94 (2004). In doing so, we resolve all conflicts in the evidence in favor of the Commonwealth. Watkins v. Commonwealth, 26 Va.App. 335, 348, 494 S.E.2d 859, 866 (1998). We will not set aside the factual findings of the trial court unless those findings are "plainly wrong or without supporting evidence." Foster v. Commonwealth, 38 Va.App. 549, 554, 567 S.E.2d 547, 549 (2002).

On August 17, 2005, at approximately 6:45 p.m., Detective T. McAndrew and Detective Kevin Johnakin, of the Portsmouth Police Department, initiated a traffic stop of a Honda station wagon because one of the car's brake lights was not functioning. Ricky Williams, the appellant, was in the passenger seat of the station wagon. As the officers approached the vehicle, Detective Johnakin saw Williams look over his shoulder at Detective McAndrew and toss three bags over his shoulder onto the back seat of the car. Detective Johnakin looked into the rear window as he approached the passenger door and saw that one of the bags appeared to contain heroin capsules.

Detective Johnakin opened the passenger door of the station wagon and placed Williams under arrest. Detective McAndrew retrieved the three bags from the back seat and identified their contents as what appeared to be heroin, cocaine, and methadone. Williams was unable to produce a prescription for the cocaine or the methadone. The Commonwealth subsequently charged Williams with possession with intent to distribute cocaine, possession with intent to distribute methadone, and possession with intent to distribute heroin.

At trial, the Commonwealth presented a certificate of analysis as evidence that the items in the bags were, in fact, controlled substances. The certificate indicated that one of the bags contained 38 capsules of heroin and that another bag contained 1.240 grams of cocaine. The third bag contained ten identical tablets. With regard to those tablets, the certificate indicated: "Visual examination determined that the physical characteristics are consistent with a pharmaceutical preparation containing Methadone.... One tablet was analyzed and found to contain Methadone, Schedule II."

In support of its allegation that Williams intended to distribute the drugs, the Commonwealth presented expert testimony from Detective R.M. Holley of the Portsmouth Police Department. Williams stipulated that Detective Holley was an expert in the packaging, use, and distribution of narcotics, noting that Detective Holley had "been here as long as the courthouse building has been here."

Detective Holley testified that Williams' possession of the heroin, cocaine, and methadone was inconsistent with personal use. Holley first explained that the quantity and combination of the drugs indicated that Williams did not intend to use the drugs himself. Holley testified that possession of 38 capsules of heroin is highly unusual for an individual user because it would take even a heavy user as many as seven days to use that much heroin.¹ Holley also noted that it was inconsistent with personal use for a methadone user to possess ten tablets at a time without a prescription. He explained that methadone is a prescription drug used as a treatment for heroin users. It is sometimes given out without a prescription by local drug rehabilitation centers, but one tablet is given out at a time. Thus, it would be unusual for a user to have ten tablets without a prescription. Holley also explained that it would be "very unusual" for a user to possess heroin and methadone because the drugs have similar effects.

With regard to the cocaine, Holley testified that 1.240 grams of cocaine is "borderline close to personal use." He also explained that it is not completely unusual for cocaine users to sell heroin to finance their cocaine use. However, Holley concluded that the possession of the cocaine was inconsistent with personal use because it was possessed in combination with the other drugs. He explained that he had never, in his experience, known a user to possess cocaine, methadone, and heroin at the same time. Detective Holley repeatedly asserted that it would be "very unique," "very rare," and "not normal" for a personal user to possess heroin, methadone, and cocaine at the same time.

Holley also testified that the value of the drugs Williams possessed was inconsistent with personal use. At the time of his arrest Williams was unemployed.² Holley explained that the street value of the drugs in the bags was "well over $700.00." Holley testified that he found it "hard to believe" that someone without a job could afford $700 in narcotics for purely personal use.

Williams made an unsuccessful motion to strike at the close of the Commonwealth's evidence and then took the stand on his own behalf. At no point during his testimony did Williams admit to using heroin, methadone, or cocaine, nor did he claim that he had intended to use any of the drugs that he possessed. Williams renewed his motion to strike at the close of evidence. He argued that the Commonwealth had not disproved his hypothesis of innocence — that he possessed all of the drugs for personal use. The trial court denied his motion, finding that the evidence was sufficient to prove that Williams possessed the drugs with the intent to distribute them. The trial court subsequently convicted Williams on all three charges and sentenced him to five years in prison on each of the three charges.

Williams now appeals his cocaine and methadone related convictions.

II. Analysis

On appeal, Williams argues that the evidence was insufficient to prove that he intended to distribute the methadone and cocaine.³ In reviewing a challenge to the sufficiency of the evidence, we will "`affirm the judgment unless it appears from the evidence that the judgment is plainly wrong or without evidence to support it.'" Black v. Commonwealth, 222 Va. 838, 841, 284 S.E.2d 608, 610 (1981) (quoting Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975)). "Additionally, when a defendant challenges the sufficiency of the evidence, `if there is evidence to sustain the verdict, this Court should not overrule it and substitute its own judgment, even if its opinion might differ from that of the jury.'" Dowden v. Commonwealth, 260 Va. 459, 467, 536 S.E.2d 437, 441 (2000) (quoting George v. Commonwealth, 242 Va. 264, 278, 411 S.E.2d 12, 20 (1991)). In reviewing such a challenge, an appellate court does not "ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2788-89, 61 L.Ed.2d 560 (1979) (emphasis in original). Rather, we must ask whether "`any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" Kelly v. Commonwealth, 41 Va.App. 250, 257, 584 S.E.2d 444, 447 (2003) (en banc) (quoting Jackson, 443 U.S. at 319, 99 S.Ct. 2781) (emphasis in original).

"An individual violates Code § 18.2-248(A) when he possesses `the controlled substance contemporaneously with his intention to distribute that substance.'" Craddock v. Commonwealth, 40 Va.App. 539, 553, 580 S.E.2d 454, 461 (2003) (quoting Christian v. Commonwealth, 33 Va.App. 704, 716, 536 S.E.2d 477, 483 (2000) (en banc)). "Because of the difficulty of proving intent directly, the Commonwealth may (and often must) rely instead on circumstantial evidence." Id. However, "when a conviction is based on circumstantial evidence, the evidence `must be consistent with guilt and inconsistent with innocence and must exclude every reasonable hypothesis of innocence.'" Feigley v. Commonwealth, 16 Va.App. 717, 724, 432 S.E.2d 520, 525 (1993) (quoting Bishop v. Commonwealth, 227 Va. 164, 169, 313 S.E.2d 390, 393 (1984)).

Williams makes several arguments as to why the evidence was insufficient to convict him of possession with intent to distribute. However, only two of those arguments were presented to the trial court and, thus, are reviewable on appeal. At trial, Williams argued 1) that the Commonwealth failed to prove beyond a reasonable doubt that he did not possess the cocaine for personal use and 2) that the evidence was insufficient to prove his intent to distribute the methadone because the forensics lab analyzed only one of the methadone caplets.⁴

A. Intent to Distribute Cocaine

In regard to the cocaine conviction, Williams argues that the Commonwealth failed to disprove his reasonable hypothesis of innocence, namely, that he possessed the cocaine for personal use. The Virginia Supreme Court has recognized several factors that are "probative evidence of intent to distribute a controlled substance." McCain v. Commonwealth, 261 Va. 483, 492, 545 S.E.2d 541, 547 (2001)....