                                             COURT OF APPEALS OF VIRGINIA


              Present: Judges Humphreys, Chafin and Decker
UNPUBLISHED


              Argued at Bristol, Virginia


              DUSTIN CROSBY KINCAID
                                                                            MEMORANDUM OPINION* BY
              v.     Record No. 1623-15-3                                  JUDGE ROBERT J. HUMPHREYS
                                                                                  JULY 26, 2016
              COMMONWEALTH OF VIRGINIA


                                      FROM THE CIRCUIT COURT OF BATH COUNTY
                                              Humes J. Franklin, Jr., Judge

                               (Steve A. Baker; The Baker Law Firm, P.C., on brief), for appellant.
                               Appellant submitting on brief.

                               (Mark R. Herring, Attorney General; Elizabeth Kiernan Fitzgerald,
                               Assistant Attorney General, on brief), for appellee. Appellee
                               submitting on brief.


                     Dustin Crosby Kincaid (“Kincaid”) appeals his conviction from the Circuit Court for

              Bath County (the “circuit court”) for possession with intent to distribute methamphetamine in

              violation of Code § 18.2-248(C).1 In support of his appeal, Kincaid argues that pursuant to

              Stanley v. Commonwealth, 12 Va. App. 867, 869-70, 407 S.E.2d 13, 14-15 (1991), the evidence

              was insufficient to sustain his conviction. Kincaid also filed a motion with this Court to set

              post-conviction bail on June 3, 2016.

                     When the sufficiency of the evidence is challenged on appeal, “[t]his Court ‘must

              examine the evidence that supports the conviction and allow the conviction to stand unless it is


                     *
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
                     1
                       Kincaid was also convicted of possession of morphine in violation of Code
              § 18.2-250(A) and sentenced to a $2,500 fine. However, this conviction is not at issue in this
              appeal.
plainly wrong or without evidence to support it.’” Commonwealth v. McNeal, 282 Va. 16, 20,

710 S.E.2d 733, 735 (2011) (quoting Vincent v. Commonwealth, 276 Va. 648, 652, 668 S.E.2d

137, 139-40 (2008)). The relevant inquiry is 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 v. Virginia, 443 U.S.

307, 319 (1979)). This Court’s deference to the fact finder “applies not only to findings of fact,

but also to any reasonable and justified inferences the fact-finder may have drawn from the facts

proved.” Sullivan v. Commonwealth, 280 Va. 672, 676, 701 S.E.2d 61, 63-64 (2010).

        Both Kincaid and the Commonwealth agree that this Court’s decision in Stanley is

controlling on the outcome of this case.2 In Stanley, a case with materially similar facts, we

held:

                        The question before us, however, is whether an individual
               actually possessing only a residue of a controlled substance may be
               convicted of possession of that controlled substance with the intent
               to distribute. Possession with intent to distribute is a crime which
               requires “an act coupled with a specific intent.” We hold that for a
               defendant to be convicted of possession of a controlled substance
               with the intent to distribute, the Commonwealth must prove that
               the defendant possessed the controlled substance
               contemporaneously with his intention to distribute that substance.

                        In the case before us, no evidence was presented to support
               an inference that Stanley intended to distribute the residue found in
               his possession. To the contrary, the quantity of residue found in
               Stanley’s possession was too small to be distributed. Assuming
               that the trier of fact could infer from the evidence introduced at
               trial that Stanley had in the past distributed cocaine, there was no
               basis on which the trier of fact could infer that the residue
               introduced at trial was part of that larger supply. Moreover, no
               evidence was presented as to when or where the supply had been
               either possessed or distributed. Because we find that the
               Commonwealth failed to prove contemporaneous possession and
               intent to distribute, Stanley’s conviction must be reversed.

        2
      However, we are not bound by concessions of law by the parties. See Epps v.
Commonwealth, 47 Va. App. 687, 703, 626 S.E.2d 912, 919 (2006).

                                               -2-
12 Va. App. at 869-70, 407 S.E.2d at 15 (internal citation omitted). We specifically rejected the

notion that possession of mere residue and the presence of paraphernalia were sufficient to prove

a defendant possessed the controlled substance contemporaneously with his intention to

distribute that substance. Id. Similar to the facts in Stanley, the only evidence of

methamphetamine presented at Kincaid’s trial was the residue recovered from the glass pipe.

Sheriff Plecker testified that the residue was not the “type or amount of drugs that is usually

bought and sold.” Consistent with our reasoning in Stanley, we hold that mere residue of

methamphetamine is insufficient to prove that Kincaid possessed methamphetamine

contemporaneously with an intent to distribute the controlled substance and therefore reverse

Kincaid’s conviction under Code § 18.2-248(C).

       Holding that Kincaid’s conviction should be reversed, we must determine the appropriate

remedy.

               When an appellant successfully challenges the sufficiency of the
               evidence on some (but not all) aspects of his conviction, we must
               determine if the proven elements of the original charge qualify as a
               lesser-included offense. If so, the appropriate remedy on appeal is
               a reversal of the conviction on the greater charge and a remand of
               the lesser charge for retrial -- assuming the Commonwealth, in its
               prosecutorial discretion, chooses to go forward on the lesser
               charge.

Crowder v. Commonwealth, 41 Va. App. 658, 666, 588 S.E.2d 384, 388 (2003). “[T]he offense

of possessing a controlled substance as proscribed by Code § 18.2-250 is a lesser-included

offense of distribution of a controlled substance as proscribed by Code § 18.2-248.” Austin v.

Commonwealth, 33 Va. App. 124, 129, 531 S.E.2d 637, 639 (2000). “In order to convict a

person of illegal possession of an illicit drug, the Commonwealth must prove beyond a

reasonable doubt that the accused was aware of the presence and character of the drug and that

the accused consciously possessed it.” Walton v. Commonwealth, 255 Va. 422, 426, 497 S.E.2d

869, 871 (1998).   
                                                -3-
       The record in this case demonstrates that Kincaid was aware of both the presence and

character of the methamphetamine recovered from the glass pipe. When asked by Sheriff

Plecker if there was “anything illegal” in the vehicle, Kincaid responded that there “may be an

old pipe in a green bag in the passenger’s side front seat.” Sheriff Plecker located the green

duffel bag and retrieved a black case which contained a glass pipe. Kincaid never denied

ownership of the pipe Sheriff Plecker recovered. A certificate of analysis was admitted at trial,

without objection, and established that the substance recovered from the pipe was

methamphetamine residue. Given that Kincaid specifically identified the glass pipe as an illegal

item and never disclaimed ownership, we hold that the evidence was sufficient to support a

conviction for possession of methamphetamine and therefore remand the case to the circuit court

for a retrial on that offense if the Commonwealth is so advised. Our decision today renders moot

Kincaid’s motion for bond pending appeal. However, upon remand, the circuit court is also

instructed to consider whether admission to bail is appropriate in light of this opinion.3

                                                                       Reversed and remanded.




       3
           Kincaid filed a motion with this Court to set post-conviction bail.

                                                 -4-
