                     COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Elder and Bray
Argued at Richmond, Virginia


ANTONIO EWELL MORSE
                                            MEMORANDUM OPINION * BY
v.          Record No. 2395-97-2             JUDGE LARRY G. ELDER
                                               OCTOBER 20, 1998
COMMONWEALTH OF VIRGINIA


           FROM THE CIRCUIT COURT OF THE CITY OF PETERSBURG
                     Oliver A. Pollard, Jr., Judge
            Mary Katherine Martin, Senior Assistant
            Public Defender (Office of the Public
            Defender, on brief), for appellant.

            Donald E. Jeffrey, III, Assistant Attorney
            General (Mark L. Earley, Attorney General, on
            brief), for appellee.



     Antonio Ewell Morse (appellant) appeals from his bench trial

conviction for possession of cocaine with intent to distribute in

violation of Code § 18.2-248.      On appeal, he contends that the

evidence was insufficient to prove he intended to distribute the

cocaine.    We disagree and affirm his conviction.

                                    I.

                                   FACTS

     In the early morning hours of December 5, 1996, Officer

Robert Elkins was working undercover to purchase drugs as part of

a "buy-bust" operation.    Elkins was driving around Petersburg in

an unmarked car "to locate individuals that would flag [him] over

     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
to attempt to buy cocaine from them."   A man Officer Elkins knew

as Kevin Montcastle flagged him down, and they discussed Elkins'

obtaining crack cocaine.   Montcastle agreed to try to get some

cocaine for Elkins, "but [Montcastle] wanted a ride."   For safety

reasons, Elkins would not let Montcastle enter the vehicle, and

"eventually [Montcastle] jumped on the hood of [Elkins'] car."

       Elkins drove to another location, where Montcastle got off

the hood and walked over to a group of people.   Montcastle

"singl[ed] out [appellant]," and the two moved a few feet from

the rest of the group and talked for thirty to thirty-five

seconds.   Montcastle and appellant then approached Elkins' open,

driver's-side window.   Appellant reached into his pocket and

pulled out a plastic cigarette box wrapper containing small bags

of what appeared to be crack cocaine.   Appellant's hand was

"cupped," and "[t]he whole time he was walking up, he had his

fingers stuck in the bag as if trying to pick [something] out of

it."   When appellant and Montcastle arrived at the window of the

car, appellant asked to "see the money," and Elkins held a marked

twenty-dollar bill in the open window.
          [Appellant] picked out . . . one or two bags
          . . . [and] reached into [Elkins' car] window
          with [either one or two] zip bags of cocaine
          . . . between his fingers. As [appellant]
          touched his hand in there, there was a moment
          of hesitation with the exchange of the money
          for drugs. . . . [H]e continued to hold the
          drugs in his hand, pushed [Elkins'] hand
          away, [and] grabbed the $20 bill . . . . He
          put the money and cocaine back in his pocket
          and he said . . . get . . . out of here [in
          a] rather loud, angry tone and walked off.




                                - 2 -
Montcastle then became irate with appellant and spoke to him "in

an angry tone."

     Elkins radioed his back-up team and kept appellant in sight

until the team arrived to take him into custody.   Appellant

attempted to flee, and immediately prior to being apprehended,

appellant threw the money and cocaine, which he had been holding

in his hand, to the ground.   Investigator Young retrieved the

money and drugs, which proved to be eight zip bags of cocaine

totalling 0.58 grams.   When Young searched appellant, he found no

smoking device or any other paraphernalia tending to indicate the

reasons for appellant's possession of the drugs.
     In convicting appellant of possession with intent to

distribute, the trial court made the following findings:
          [T]he defendant was approached by Montcastle.
           Montcastle knew that Elkins was looking to
          buy. Together they approached the car.
          Defendant extended his hand to take something
          from the cellophane wrapper, plastic wrapper.
           He snatched the money out of Elkins' hand.
          Could be that he intended to do this all
          along. Could have been he intended to move
          to make a sale and then change[d] his mind in
          the middle of it.
               In any event the fact that his contact
          person, Montcastle, was upset indicated he
          thought otherwise. There's no reason for him
          to approach [defendant] as long as the man
          was looking to make a buy. I find it too
          [much] of a leap . . . to decide that he's
          out there ripping off everybody.
               Common sense is going to tell you he's
          not going to keep many customers. You're not
          [going] to make any customers if you're out
          there ripping everybody off. So I don't
          believe that.




                               - 3 -
                                 II.

                              ANALYSIS

     Under familiar principles of appellate review, we examine

the evidence in the light most favorable to the Commonwealth,

granting to it all reasonable inferences fairly deducible

therefrom.    See Higginbotham v. Commonwealth, 216 Va. 349, 352,

218 S.E.2d 534, 537 (1975).
          The weight which should be given to evidence
          and whether the testimony of a witness is
          credible are questions which the fact finder
          must decide. However, whether a criminal
          conviction is supported by evidence
          sufficient to prove guilt beyond a reasonable
          doubt is not a question of fact but one of
          law.

Bridgeman v. Commonwealth, 3 Va. App. 523, 528, 351 S.E.2d 598,

601-02 (1986).

     Circumstantial evidence may establish the elements of a

crime, provided it excludes every reasonable hypothesis of

innocence.    See, e.g., Tucker v. Commonwealth, 18 Va. App. 141,

143, 442 S.E.2d 419, 420 (1994).   However, "the Commonwealth need

only exclude reasonable hypotheses of innocence that flow from

the evidence, not those that spring from the imagination of the

defendant."    Hamilton v. Commonwealth, 16 Va. App. 751, 755, 433

S.E.2d 27, 29 (1993).   Whether a hypothesis of innocence is

reasonable is a question of fact, see Cantrell v. Commonwealth, 7

Va. App. 269, 290, 373 S.E.2d 328, 339 (1988), and a finding of

fact made by the trial court is binding on appeal unless plainly

wrong, see Higginbotham, 216 Va. at 352, 218 S.E.2d at 537.



                                - 4 -
"Because direct proof of intent [to distribute drugs] is often

impossible, it must be shown by circumstantial evidence."     Servis

v. Commonwealth, 6 Va. App. 507, 524, 371 S.E.2d 156, 165 (1988).

     The circumstantial evidence in this case, viewed in the

light most favorable to the Commonwealth, was sufficient to

prove, beyond a reasonable doubt, that appellant intended to

distribute cocaine to Officer Elkins.   After Montcastle agreed to

help Elkins purchase crack cocaine, Elkins drove Montcastle to

another location where he saw appellant.   Although appellant was

part of a group of people, Montcastle immediately "single[d]

[appellant] out."   The two separated from the rest of the group

and talked for about thirty seconds.    Appellant then approached

Elkins' car while reaching into a cellophane cigarette wrapper

containing smaller "zip" bags of cocaine as if trying to retrieve

one or two of the "zip" bags.   Appellant asked to see Elkins'

money, and when Elkins held a twenty-dollar bill in the window,

appellant had the opportunity to take the money and flee.

However, appellant then actually "picked out . . . one or two

bags" of cocaine, reached into Elkins' window with the cocaine in

his hand, and "hesitat[ed]" for a moment before grabbing Elkins'

money and putting it and the cocaine in his pocket.
     This evidence, combined with appellant's possession of eight

bags of cocaine and Montcastle's anger when appellant refused to

sell Elkins the cocaine, supports the inference that appellant

had told Montcastle he would sell cocaine to Elkins.   Moreover,



                                - 5 -
the evidence proved that appellant retrieved a package of cocaine

from a larger bag, displayed the package of cocaine, and asked to

see Elkins' money.   This conduct was sufficient to prove that

appellant was offering the cocaine to consummate the transaction.

The fact that appellant did not complete the transaction, but,

instead took Elkins' money, does not diminish the proof that

appellant offered to sell the cocaine.   This was sufficient

circumstantial evidence to prove appellant possessed the cocaine

with the intent to distribute it.
     For these reasons, we affirm appellant's conviction.

                                                        Affirmed.




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