                           COURT OF APPEALS OF VIRGINIA

Present: Judges Kelsey, Haley and Beales
Argued at Chesapeake, Virginia

MICHAEL A. BAILEY
                                                         MEMORANDUM OPINION * BY
v.     Record No. 2665-06-1                               JUDGE D. ARTHUR KELSEY
                                                              JANUARY 8, 2008
COMMONWEALTH OF VIRGINIA

            FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
                           Dean W. Sword, Jr., Judge

                 S. Jane Chittom, Appellate Defender (Office of the Appellate
                 Defender, on briefs), for appellant.
                 Rosemary V. Bourne, Assistant Attorney General (Robert F.
                 McDonnell, Attorney General, on brief), for appellee.


       The trial court convicted Michael A. Bailey of possession of cocaine with intent

to distribute, a violation of Code § 18.2-248(A). On appeal, Bailey challenges the

relevance of certain evidence admitted at trial and the evidentiary sufficiency of his

conviction. Finding neither challenge persuasive, we affirm.

                                              I.

       Under settled principles, we review the evidence in the “light most favorable” to

the Commonwealth. Commonwealth v. Hudson, 265 Va. 505, 514, 578 S.E.2d 781, 786

(2003). That principle 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.” Parks v. Commonwealth,

221 Va. 492, 498, 270 S.E.2d 755, 759 (1980) (emphasis and citation omitted).

       The evidence at trial described an on-going drug surveillance operation conducted

at the 40 and 50 block of Grove Street in Portsmouth, an area notorious for drug dealing.

       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
From a concealed location, Officer S.W. Johnson observed several apparent drug sales at

57 Grove Street. The police had already made several arrests in this area that day and

recovered crack cocaine. Officer Johnson saw Bailey talking with Sharon Boone in front

of the residence at 57 Grove Street. They appeared to be sharing a marijuana cigarette.

For a period of time, Bailey sat in front of the residence in a lawn chair as Boone

repeatedly walked in and out. Officer Johnson watched as a vehicle stopped in the

middle of the street in front of the residence. A female exited and walked to the front of

the vehicle. Bailey rose from the lawn chair, walked over to the woman, and briefly

spoke with her. He then took cash from the woman and walked to the side of the front

porch at 57 Grove Street.

       After Bailey said something, Boone appeared from the front door and reached

into the right rear pocket of her jeans. She removed a plastic bag, extracted from the bag

what appeared to Officer Johnson to be a rock of crack cocaine, and handed the rock to

Bailey. He, in turn, handed her the money he had received from the woman at the car.

Boone returned the plastic bag to her right rear pocket and placed the money in a

different jeans pocket. Boone then went back into the residence. Bailey walked back to

the street, where he handed the rock to the woman at the car. The woman got back into

the vehicle and left. Bailey returned to the lawn chair.

       Police officers then arrested Bailey and Boone for suspected distribution of

cocaine. In Boone’s right rear pocket, officers found a bag containing four rocks of crack

cocaine. They also found $80 in cash in one of her front pockets. Boone confessed to

police that Bailey gave her $10 in “exchange” for the “dime” in her back pocket. When

asked what a “dime” was, Boone answered, “I guess crack.” When asked if by “crack”

she meant crack cocaine, she responded, “I guess so.”


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       A grand jury indicted Bailey for distribution of cocaine and for conspiring to

distribute cocaine. At trial, Boone testified she did not have an “independent

recollection” of the events but could affirm that her earlier statement to the police was

“true and correct.” She also admitted that she pled guilty to “selling cocaine on that day”

but made no specific agreement with the prosecution to testify against Bailey.

       Without objection, the trial court admitted into evidence the certificate of analysis

confirming that the four rocks taken from Boone’s right rear pocket, which Officer

Johnson suspected to be cocaine, were in fact cocaine. When the prosecutor offered the

actual rocks of cocaine (previously analyzed and described by the certificate of analysis),

Bailey objected. The cocaine, counsel argued, lacked a sufficient “nexus” between

Boone and Bailey. The trial court disagreed and admitted the cocaine into evidence.

       At the close of the Commonwealth’s evidence, the trial court dismissed the

conspiracy charge and denied Bailey’s motion to strike the evidence of the possession

with intent to distribute charge. Bailey elected not to present any evidence. The trial

court found him guilty of possession of cocaine with intent to distribute.

                                             II.

       On appeal, Bailey contends the trial court erred in admitting the four rocks of

cocaine into evidence because they were legally irrelevant. Bailey also argues that the

evidence failed to prove his guilt beyond a reasonable doubt. We disagree with both

assertions.

       A. The Admissibility of the Same-Bag, Same-Pocket, Cocaine Rocks

       Any evidence, “however remote or insignificant, that tends to establish the

probability or improbability of a fact in issue is relevant.” Thomas v. Commonwealth, 44

Va. App. 741, 753, 607 S.E.2d 738, 743, adopted upon reh’g en banc, 45 Va. App. 811,

                                            -3-
613 S.E.2d 870 (2005) (footnote and citation omitted). In other words, “evidence has

relevance if it ‘tends to cast any light’ on any material point.” Id. at 753, 607 S.E.2d at

744 (citation omitted). Thus, the evidence need not itself be dispositive:

              It is its tendency to prove or disprove — not its sufficiency,
              standing alone, to satisfy the ultimate burden of proof — that
              makes a fact relevant: “It is universally recognized that
              evidence, to be relevant to an inquiry, need not conclusively
              prove the ultimate fact in issue, but only have ‘any tendency to
              make the existence of any fact that is of consequence to the
              determination of the action more probable or less probable
              than it would be without the evidence.’”

Id. at 753-54, 607 S.E.2d at 744 (footnote omitted) (quoting McKoy v. North Carolina,

494 U.S. 433, 440 (1990), with citations and internal brackets omitted); see also Pryor v.

Commonwealth, 50 Va. App. 42, 50-51, 646 S.E.2d 21, 25 (2007).

        We agree with the trial court that the four rocks of crack cocaine found in the bag

taken from Boone’s right rear pocket were relevant to this case. Officer Johnson saw

Boone take out of that same pocket (and same bag) what appeared to be a rock of crack

cocaine and give it to Bailey in exchange for money. Boone confessed to police that she

received $10 from Bailey and in return gave him a “dime” of what she reluctantly

acknowledged (“I guess so”) to be crack cocaine. She later pled guilty to selling cocaine.

It is of obvious relevance that the rock that appeared to be cocaine came from a stash of

rocks that proved in fact to be cocaine. To be sure, had the rocks instead been four

peppermint candies, Bailey would no doubt remonstrate — correctly so — about their

logical relevance to the case. 1



        1
         Given our ruling, we need not address the Commonwealth’s argument that, even
if the admission of the four rocks of cocaine was error, it was harmless given the
uncontested admission of the certificate of analysis proving the four rocks found in
Boone’s right rear pocket to be crack cocaine. See Smoot v. Commonwealth, 18
Va. App. 562, 566, 445 S.E.2d 688, 690-91 (1994) (applying harmless error “because the
                                            -4-
          B. Sufficiency of the Evidence

          In Virginia, the factfinding of a lower court receives “the highest degree of

appellate deference.” Thomas v. Commonwealth, 48 Va. App. 605, 608, 633 S.E.2d 229,

231 (2006). Presuming factual findings to be correct, we reverse “only if the trial court’s

decision is ‘plainly wrong or without evidence to support it.’” Kelly v. Commonwealth,

41 Va. App. 250, 257, 584 S.E.2d 444, 447 (2003) (en banc) (citations omitted); see also

Haskins v. Commonwealth, 44 Va. App. 1, 7, 602 S.E.2d 402, 405 (2004) (citation

omitted). Under this standard, a “trial judge’s factual findings cannot be disturbed on

appeal unless no ‘rational trier of fact’ could have come to the conclusions he did.” Boyd

v. County of Henrico, 42 Va. App. 495, 525, 592 S.E.2d 768, 783 (2004) (en banc)

(citations omitted).

          To be found guilty under Code § 18.2-248(A), a defendant must possess “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) (citation

omitted). Like any other mens rea issue, intent to distribute can be (and usually must be)

inferred from the surrounding circumstances. See Cost v. Commonwealth, 49 Va. App.

215, 228, 638 S.E.2d 714, 720 (2006). “While 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.’” Emerson

v. Commonwealth, 43 Va. App. 263, 277, 597 S.E.2d 242, 249 (2004) (citation omitted);

see also Harper v. Commonwealth, 49 Va. App. 517, 521-22, 642 S.E.2d 779, 781

(2007).



same information was properly before the fact finder by virtue of other evidence”); West
v. Commonwealth, 12 Va. App. 906, 911, 407 S.E.2d 22, 25 (1991).

                                              -5-
       In this case, we have no difficulty confirming the rationality of the trial court’s

factfinding. Officer Johnson saw Bailey possess what appeared to be a rock of crack

cocaine. Bailey received it from Boone who pulled the rock out of a bag taken from her

right rear pocket. In that same bag was a stash of four other rocks of crack. Boone

admitted giving a “dime” rock to Bailey in exchange for $10, a transfer that took place

just after Bailey had received a sum of money from the woman stepping out of the car

stopped in the middle of the street.

       Bailey argues “one might surmise” he obtained a rock of crack cocaine from

Boone, but that inference would be “only a conjecture.” Appellant’s Br. at 11 (emphasis

in original). We concede the line between supposition and proof sometimes blurs, but

like everything else it depends on where the line is initially drawn. The burden of proof

in criminal cases, however, is not irrefutable certitude or the absence of every ephemeral

possibility of doubt — it is proof beyond a reasonable doubt. “Anything is possible,” as

Judge Posner has observed, “but a merely metaphysical doubt . . . is not a reasonable

doubt for purposes of the criminal law. If it were, no one could be convicted.” United

States v. Ytem, 255 F.3d 394, 397 (7th Cir. 2001) (citations omitted).

                                            III.

       Finding no evidentiary errors or insufficiencies of proof, we affirm Bailey’s

conviction for possession of cocaine with intent to distribute.


                                                                              Affirmed.




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