                               COURT OF APPEALS OF VIRGINIA

Present: Judges Kelsey, Petty and Senior Judge Willis
Argued at Chesapeake, Virginia

ANTHONY BOONE, S/K/A
 ANTHONY BREYEON BOONE
                                                                 MEMORANDUM OPINION * BY
v.     Record No. 1537-07-1                                       JUDGE D. ARTHUR KELSEY
                                                                     SEPTEMBER 23, 2008
COMMONWEALTH OF VIRGINIA


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

                  Dianne G. Ringer (Bierowicz & Ringer, P.C., on brief), for
                  appellant.

                  Jennifer C. Williamson, Assistant Attorney General (Robert F.
                  McDonnell, Attorney General; Donald E. Jeffrey, III, Assistant
                  Attorney General, on brief), for appellee.


       The trial court found Anthony Boone guilty of possession of marijuana with intent to

distribute in violation of Code § 18.2-248. On appeal, Boone challenges the sufficiency of the

evidence offered to prove he intended to distribute the marijuana. Finding the evidence

sufficient, we affirm.

                                                  I.

       On appeal, 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). This 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).


       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
       The evidence at trial showed that Boone actually or constructively possessed the

following items:

               two plastic baggies containing “bulk marijuana” weighing 20.6 grams, 1

               six clear, empty baggies that were “cut off” for distribution purposes,

               two cell phones, and

               one package of cigars.

Boone did not possess any rolling papers or smoking pipes. Upon his arrest, Boone denied the

marijuana belonged to him but admitted he had a “bad habit” of smoking marijuana.

       At trial, a police detective qualified as an expert on marijuana distribution and explained

the significance of each item of evidence from the viewpoint of a trained narcotics officer. The

two baggies of “bulk marijuana,” he testified, were not sufficient by themselves to demonstrate

an intent to distribute. But the six clear, empty baggies altered the equation substantially. These

baggies were “cut up” for distribution purposes. And, in his experience, six such baggies was a

“large amount,” the detective said.

       The detective also noted the absence of any user paraphernalia like rolling papers or

smoking pipes. As for the package of cigars, the detective observed that dealers sometimes sell

“what they call a package on the street” which includes a cigar and a “dime bag of marijuana.”

They “sell them as a package” and price them “depending on the grade” of the marijuana. In

addition, the detective found it significant that Boone possessed two, rather than one, cell

phones. In his experience, one is typically reserved for personal use while the other is dedicated

solely to commercial use.



       1
         Police also found seven plastic baggies containing “suspected” marijuana residue. The
Department of Forensic Science did not test the residue. Boone, however, did not object at trial
to the police officer’s testimony that the baggies contained what he suspected to be marijuana
residue. On appeal, Boone accepts that the evidence suggests the baggies “had suspected
marijuana residue on them.” Appellant’s Br. at 3.

                                                -2-
        The trial court acknowledged the case was a “close one” but, finding the detective’s

expert testimony persuasive, concluded the totality of the circumstances demonstrated Boone

intended to distribute the marijuana. On appeal, Boone claims the evidence as a matter of law

failed to prove an intent to distribute.

                                                  II.

                SUFFICIENCY OF THE EVIDENCE — INTENT TO DISTRIBUTE MARIJUANA

        “Sufficiency-of-the-evidence review involves assessment by the courts of whether the

evidence adduced at trial could support any rational determination of guilt beyond a reasonable

doubt.” United States v. Powell, 469 U.S. 57, 67 (1984). It follows that a reviewing 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 (1979) (emphasis in original and

citation omitted).

        Instead, we ask only “whether, after viewing the evidence in the light most favorable to

the prosecution, any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt.” Maxwell v. Commonwealth, 275 Va. 437, 442, 657 S.E.2d 499,

502 (2008) (quoting Jackson, 443 U.S. at 319) (emphasis in original). These principles

recognize that an appellate court is “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). 2



        2
          This deferential standard of review “applies not only to the historical facts themselves,
but the inferences from those facts as well.” Crowder v. Commonwealth, 41 Va. App. 658, 663
n.2, 588 S.E.2d 384, 387 n.2 (2003). 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 (citations omitted),
unless doing so would push “into the realm of non sequitur,” Thomas v. Commonwealth, 48
Va. App. 605, 608, 633 S.E.2d 229, 231 (2006) (citation omitted).

                                                 -3-
       To be found guilty under Code § 18.2-248, 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. Harper v. Commonwealth, 49 Va. App. 517, 521, 642 S.E.2d 779,

781 (2007) (citation omitted). “It is ‘often impossible’ to do otherwise given the common

absence of direct evidence of intent to distribute.” Id. (citations omitted). The surrounding

circumstances, moreover, must not be “viewed in isolation.” Emerson v. Commonwealth, 43

Va. App. 263, 277, 597 S.E.2d 242, 249 (2004) (citation omitted). “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.’” Harper, 49

Va. App. at 522, 642 S.E.2d at 781 (citation omitted).

       In this case, a rational factfinder could find the detective’s expert testimony persuasive

and conclude Boone possessed the marijuana with the intent to distribute. 3 The six clear, empty

baggies were “cut up” for distribution purposes. The detective could not hypothesize a reason

for a mere user to possess them. Underlying the detective’s opinion is the observation that users

buy marijuana already in baggies. They do not buy it unpackaged and then separately purchase

or create tiny little baggies to organize their stash. Boone’s possession of empty distribution

baggies demonstrated an intent to distribute the marijuana he currently possessed. See, e.g.,

Bolden v. Commonwealth, 49 Va. App. 285, 293-94, 640 S.E.2d 526, 530 (2007) (noting

       3
         A factfinder may rely on expert testimony, “usually that of a police officer,” to discern
the incriminating import of seemingly innocuous circumstances that nonetheless have
incriminating relevance in the drug trade. Williams v. Commonwealth, 52 Va. App. 194, 202,
662 S.E.2d 627, 631 (2008) (quoting Askew v. Commonwealth, 40 Va. App. 104, 110, 578
S.E.2d 58, 61 (2003) (citation omitted)). The “credibility of the expert witness and the weight to
be accorded the evidence,” moreover, are matters solely “within the province” of the factfinder.
Lemond v. Commonwealth, 19 Va. App. 687, 694, 454 S.E.2d 31, 35 (1995) (quoting Horsley v.
Commonwealth, 2 Va. App. 335, 339, 343 S.E.2d 389, 391 (1986)).

                                                -4-
presence of “empty plastic bags” used “to package drugs for distribution”), aff’d, 275 Va. 144,

654 S.E.2d 584 (2008); Thomas v. Commonwealth, 44 Va. App. 741, 755, 607 S.E.2d 738, 744,

adopted upon reh’g en banc, 45 Va. App. 811, 613 S.E.2d 870 (2005) (noting expert opinion that

empty “plastic baggies” are “commonly used in the drug trade for distribution purposes”); accord

United States v. Nelson, 6 F.3d 1049, 1051 (4th Cir. 1993) (observing that “corners cut from

sandwich bags . . . are commonly used to package drugs for sale”).

       Added to this incriminating circumstance is the absence of any rolling papers or smoking

pipes typically found on a marijuana user. Perhaps the package of cigars could be considered an

item indicating personal use. But the detective testified that, in his expert opinion, the package

of cigars could just as well be inventory for a “dime” marijuana “package,” which in street

jargon meant a small amount of marijuana accompanied by a single cigar. Finally, the trial court

was also entitled to accept the detective’s observation that the possession of two cell phones

implied that one was for personal use while the other served Boone’s commercial interests.

                                                 III.

       No one circumstance, standing alone, proved Boone’s intent to distribute. But, taken

together, the clustering circumstances provided a rational basis for the trial court’s finding that

Boone possessed the marijuana with the intent to distribute. 4 We thus affirm.


                                                                                      Affirmed.




       4
         At oral argument, Boone pointed out that the trial court did not specifically address the
probative weight of each item of evidence or expressly adopt the opinion of the expert witness.
On appeal, however, “when ‘faced with a record of historical facts that supports conflicting
inferences,’ a court reviewing the sufficiency of the evidence ‘must presume — even if it does
not affirmatively appear in the record — that the trier of fact resolved any such conflicts in favor
of the prosecution, and must defer to that resolution.’” Harper, 49 Va. App. at 523, 642 S.E.2d at
782 (quoting Jackson, 443 U.S. at 326); see also Coleman v. Commonwealth, 52 Va. App. 19, 22
n.1, 660 S.E.2d 687, 689 n.1 (2008).

                                                 -5-
