                                                                      COURT OF APPEALS OF VIRGINIA


              Present: Judges Beales, Chafin and O’Brien
              Argued at Norfolk, Virginia
UNPUBLISHED




              ANTOINE LAMONT CREECY
                                                                                              MEMORANDUM OPINION* BY
              v.            Record No. 0605-14-1                                               JUDGE TERESA M. CHAFIN
                                                                                                  OCTOBER 27, 2015
              COMMONWEALTH OF VIRGINIA


                                           FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE
                                                          Randall D. Smith, Judge

                                           M. Colston Jones, Assistant Public Defender, for appellant.

                                           Steven A. Witmer, Senior Assistant Attorney General (Mark R.
                                           Herring, Attorney General, on brief), for appellee.
               

                            Antoine Lamont Creecy (“appellant”) was convicted in a jury trial of possession with the

              intent to distribute both heroin and cocaine. On appeal, appellant contends that the trial court erred

              by refusing his proffered jury instructions on the lesser-included offenses of simple possession of

              heroin and simple possession of cocaine. Specifically, appellant argues that these instructions were

              accurate statements of the law and were supported by more than a “scintilla of evidence.” We

              disagree with appellant’s position and, for the reasons stated below, we affirm the trial court’s

              decision.

                                                                              I. Background

                            “‘When reviewing a trial court’s refusal to give a proffered jury instruction, we view the

              evidence in the light most favorable to the proponent of the instruction.’” Williams v.

              Commonwealth, 64 Va. App. 240, 244, 767 S.E.2d 252, 254 (2015) (quoting Commonwealth v.


                                                                          
                            *
                                Pursuant to Code § 17.1-413, this opinion is not designated for publication.
Vaughn, 263 Va. 31, 33, 557 S.E.2d 220, 221 (2002)). So viewed, the evidence established that on

the morning of October 24, 2012, police officers executed a search warrant on an apartment where

appellant resided. After knocking and announcing their presence and purpose and receiving no

answer, the officers entered. Investigator Mike Johnson found four people in a ground-floor

bedroom, including appellant, his girlfriend, a small child, and one other person. Appellant, his

girlfriend, and the child were in the bed.

              After removing appellant from the bed, the officers found in the bed a black sock or beanie

hat with a knotted plastic bag sticking out of it. The plastic bag contained 47 capsules of heroin

with a total gross weight of 6.7 grams. In addition to the capsules, appellant possessed three bags

with more raw heroin, five $20 knotted bag corners of cocaine, a small amount of unpackaged

cocaine, and a red straw containing narcotics residue. In the kitchen, State Police Special Agent

Cooke found two digital scales not typical of kitchen scales, and a quantity of Bonita powder.1 In a

container, Special Agent Cooke found empty pill capsules used for packaging heroin for distribution

and a cell phone.

              The officers found in the bedroom closet a plastic box of .22 caliber ammunition. In a

container under some men’s clothing, they also found a .22 caliber Walther semi-automatic pistol,

locked in the manufacturer’s plastic box with a gun lock. In addition to the pistol, the box contained

a magazine loaded with ten rounds of ammunition, a wristwatch inside a glove, and the

manufacturer’s test-fire cartridge case.

              Investigator Scott read Miranda warnings to appellant from a preprinted card. Appellant

admitted ownership of the heroin and cocaine, and admitted he was a seller of both drugs. He told



                                                            
              1
         Bonita is a children’s laxative found in Mexican food stores commonly used to “cut” or
dilute raw heroin prior to sale.

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Scott that he had bought $900 worth of heroin and that he used Bonita to cut the heroin.

Investigator Scott recovered $1,641 from appellant’s pocket, mostly in $20 bills.

        Investigator Burton testified as an expert in the field of narcotics distribution. Burton

testified that while the Commonwealth’s evidence could be explained by appellant’s personal use of

the cocaine and heroin, it was not probable. Additionally, Burton testified that evidence of personal

use is not inconsistent with distribution, noting that many distributors use some of their own

product. However, Burton testified that appellant’s possession of the heroin and cocaine was

inconsistent with personal use based upon the quantity of drugs, the manner of packaging, and the

presence of tools related to distribution.

        Scott testified on cross-examination that it was possible that appellant, as a longtime heroin

user, could have used ten heroin capsules within a single day.

        At the close of the evidence, appellant offered jury instructions on simple possession of

heroin (proposed Jury Instruction A) and simple possession of cocaine (proposed Jury Instruction

B), both lesser-included offenses of the charged offenses of possession with the intent to distribute.

The trial court refused both instructions.

        The jury found appellant guilty on both counts of possession with intent to distribute. This

appeal followed.

                                              II. Analysis

        “‘A reviewing court’s responsibility in reviewing jury instructions is to see that the law has

been clearly stated and that the instructions cover all issues which the evidence fairly raises.’”

Williams, 64 Va. App. at 246, 767 S.E.2d at 255 (quoting Rhodes v. Commonwealth, 41 Va. App.

195, 200, 583 S.E.2d 773, 775 (2003)). We review a trial court’s decisions concerning jury

instructions for an abuse of discretion. Gaines v. Commonwealth, 39 Va. App. 562, 568, 574

S.E.2d 775, 778 (2003) (en banc).
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        “Although a defendant is entitled to an instruction upon his theory of the case,” his or her

instructions must be “supported by some appreciable evidence.” Williams, 64 Va. App. at 246, 767

S.E.2d at 255 (internal quotation marks and citation omitted) (emphasis in original). “‘[M]ore than

a scintilla of evidence must be present to support an instruction.’” Id. (quoting Eaton v.

Commonwealth, 240 Va. 236, 255, 397 S.E.2d 385, 397 (1990)). “‘Thus, it is not error to refuse an

instruction where there is no evidence to support it.’” Id. at 247, 767 S.E.2d at 256 (quoting

Commonwealth v. Sands, 262 Va. 724, 729, 553 S.E.2d 733, 736 (2001)).

        “This Court has avoided establishing a precise definition for the term ‘scintilla’ because to

do so would be ‘neither practical nor helpful.’” Id. at 247, 767 S.E.2d at 256 (quoting Brandau v.

Commonwealth, 16 Va. App. 408, 411, 430 S.E.2d 563, 564 (1993)). “‘Rather, the weight of the

credible evidence that will amount to more than a mere scintilla of evidence is a matter to be

resolved on a case-by-case basis.’” Id. (quoting Brandau, 16 Va. App. at 411, 430 S.E.2d at 564).

        When the proposed jury instruction includes a lesser-included offense and there is credible

evidence in the record to support it, the “failure to give the instruction is reversible error.” Id.

(internal quotation marks and citations omitted). However, if there is “no independent evidence

warranting a conviction [of the lesser-included offense], an instruction on the lesser-included

offense need not be given.” Id. (alteration in original) (internal quotation marks and citations

omitted). “The evidence must ‘provide the necessary quantum of independent evidence’ to support

an instruction on the lesser-included offense.” Id. (quoting Commonwealth v. Leal, 265 Va. 142,

147, 574 S.E.2d 285, 288 (2003)). Furthermore, the jury’s “‘ability to reject evidence does not

supply the affirmative evidence necessary to support a jury instruction.’” Id. (quoting Vaughn, 263

Va. at 36, 557 S.E.2d at 223); see Commonwealth v. Donkor, 256 Va. 443, 446-47, 507 S.E.2d 75,

77 (1998) (“[T]he jury’s ability to reject evidence [does not operate] as a substitute for the



                                                   -4-
evidentiary support required to grant a defendant’s request for an instruction on a lesser-included

offense.”).

        Where the only difference between the greater offense and the lesser offense is intent, as it is

here, and the evidence warrants a conviction for the greater offense, appellant must identify more

than a scintilla of independent evidence that he did not intend the greater offense. See Leal, 265 Va.

at 145, 574 S.E.2d at 287; Vaughn, 263 Va. at 35-36, 557 S.E.2d at 222-23. Therefore, if there was

more than a scintilla of evidence supporting appellant’s claim that he possessed the heroin and

cocaine without the intent to distribute them, then he was entitled to jury instructions on the

lesser-included offense of simple possession. On the other hand, if there was sufficient evidence to

support appellant’s convictions of possession with the intent to distribute both cocaine and heroin,

“and there [was] no independent evidence warranting a conviction [of simple possession], an

instruction on the lesser-included offense” was not required. Vaughn, 263 Va. at 36, 557 S.E.2d at

222-23. Thus, if the trial court correctly determined that there was not more than a scintilla of

evidence to support appellant’s assertion that he simply possessed the drugs, then “it [was] not error

to refuse [the] instruction[s].” Sands, 262 Va. at 729, 553 S.E.2d at 736.

        In the present case, it is uncontested that the evidence supported appellant’s convictions of

possession of cocaine and heroin with intent to distribute. In fact, appellant admitted to Burton that

he sold cocaine and heroin. As such, “the pertinent inquiry becomes whether there is more than a

scintilla of independent evidence to show that [appellant] was entitled to . . . instruction[s] on the

lesser offense[s].” Leal, 265 Va. at 146, 574 S.E.2d at 288.

        Appellant argues that his cross-examination of the Commonwealth’s witnesses provided the

necessary scintilla by showing that it was possible that the drugs could have been for personal use.

This argument, however, mischaracterizes the scintilla of evidence standard, which, when applied to

the present case, requires a “necessary quantum of independent evidence to show [appellant] did not
                                                  -5-
intend” to distribute the cocaine and heroin. Id. at 147, 574 S.E.2d at 288 (emphasis added). Mere

speculation that the heroin and cocaine could have been for personal use is not independent,

affirmative evidence showing a lack of intent to distribute, especially in light of appellant’s

statements to Burton that he sold the drugs. Accordingly, the trial court did not abuse its discretion

by declining to grant appellant’s proposed instructions.

                                                                                              Affirmed.




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