                     COURT OF APPEALS OF VIRGINIA


Present:  Chief Judge Fitzpatrick, Judge Annunziata and
          Senior Judge Coleman
Argued at Richmond, Virginia


ALONZO CLAIBORNE
                                          MEMORANDUM OPINION * BY
v.   Record No. 0279-01-2        CHIEF JUDGE JOHANNA L. FITZPATRICK
                                             FEBRUARY 19, 2002
COMMONWEALTH OF VIRGINIA


           FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                      James B. Wilkinson, Judge

           John B. Mann (Levit, Mann & Halligan, on
           briefs), for appellant.

           Richard B. Smith, Senior Assistant Attorney
           General (Randolph A. Beales, Attorney
           General, on brief), for appellee.


     Alonzo Claiborne (appellant) was convicted in a bench trial

of possession with intent to distribute cocaine, in violation of

Code § 18.2-248. 1   On appeal, he contends (1) the trial court

erred in denying his motion to suppress the evidence obtained in

violation of his Fourth Amendment rights, and (2) the evidence

is insufficient to prove he intended to distribute the cocaine.

For the following reasons, we reverse appellant's conviction of



     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
     1
       Code § 18.2-248 provides in pertinent part: "[I]t shall
be unlawful for any person to manufacture, sell, give,
distribute, or possess with intent to manufacture, sell, give or
distribute a controlled substance."
possession with intent to distribute cocaine and remand for

resentencing on the lesser-included offense of possession of

cocaine pursuant to Code § 18.2-250.

                          I.   BACKGROUND

     Under familiar principles of appellate review, we examine

the evidence in the light most favorable to the Commonwealth,

the prevailing party below, granting to that evidence all

reasonable inferences fairly deducible therefrom.     See Juares v.

Commonwealth, 26 Va. App. 154, 156, 493 S.E.2d 677, 678 (1997).

The trial court's judgment will not be set aside unless plainly

wrong or without evidence to support it.    See Hunley v.

Commonwealth, 30 Va. App. 556, 559, 518 S.E.2d 347, 349 (1999).

     So viewed, the evidence established that Officer Fred Bates

(Bates), working undercover on another assignment, observed a

group of men loitering in the parking lot of a Texaco service

station.   Bates and other officers approached the men and spoke

with several of them.   Bates stated he

           just started a conversation [with
           appellant], hey, buddy can I talk to you?
           He stopped. We started talking. During the
           conversation I asked him do you have any
           drugs or weapons on you? He said no. I
           asked if I could look in his pockets. He
           said no problem. Well, he said sure,
           whatever. I don't know. He agreed.

During the search, Bates found a "little ball" of what he

believed to be crack cocaine in appellant's pocket.    Appellant




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struggled with Bates, and the "little ball" of crack cocaine

disappeared.

     After appellant was returned to the police car and placed

inside, Bates stepped on a vial containing crack cocaine under a

7-11 napkin in the parking lot.     Bates also found 7-11 napkins

in appellant's pocket.    A search of appellant produced only a

"crumb" of cocaine in his pocket, $115 in cash and a cell phone.

     Appellant denied that he consented to Bates' search of his

pockets or threw any drugs on the ground.     The trial court

denied appellant's motion to suppress the cocaine seized finding

that appellant's initial encounter with Bates was consensual in

nature and, thus, implicated no Fourth Amendment rights.      At

trial, the court agreed that no evidence proved that appellant

possessed the vial of cocaine found under the napkin in the

parking lot.   However, it found that the cocaine residue in

appellant's pocket combined with $115 in cash and a cell phone

were sufficient to establish that he possessed cocaine with the

intent to distribute.

                        II.   MOTION TO SUPPRESS

     "In reviewing a trial court's denial of a motion to

suppress, the burden is upon [the defendant] to show that the

ruling, when the evidence is considered most favorably to the

Commonwealth, constituted reversible error."       McGee v.

Commonwealth, 25 Va. App. 193, 197, 487 S.E.2d 259, 261 (1997)

(en banc) (citation omitted).     "In performing such analysis, we

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are bound by the trial court's findings of historical fact

unless 'plainly wrong' or without evidence to support them and

we give due weight to the inferences drawn from those facts by

resident judges and local law enforcement officers."      Id. at

198, 487 S.E.2d at 261 (citing Ornelas v. United States, 517

U.S. 690, 699 (1996)).    "Evidence adduced at both the trial and

suppression hearing" is included in this Court's review of the

record.   Greene v. Commonwealth, 17 Va. App. 606, 607, 440

S.E.2d 138, 139 (1994).    However, "'[u]ltimate questions of

reasonable suspicion and probable cause . . . are reviewed

de novo on appeal.'"     McGee, 25 Va. App. at 197, 487 S.E.2d at

261 (quoting Ornelas, 517 U.S. at 691).     Similarly, we review

de novo whether a seizure occurred.      See id. at 198, 487 S.E.2d

at 261.

     In Iglesias v. Commonwealth, 7 Va. App. 93, 372 S.E.2d 170

(1988), we categorized police-citizen encounters as follows:

           First, there are communications between
           police officers and citizens that are
           consensual and, therefore, do not implicate
           the fourth amendment. Second, there are
           brief investigatory stops which must be
           based on specific and articulable facts
           which, taken together with rational
           inferences from these facts, reasonably
           warrant a limited intrusion. Third, there
           are highly intrusive, full-scale arrests
           which must be based on probable cause.

Id. at 99, 372 S.E.2d at 174 (citations omitted).




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     In Garrison v. Commonwealth, 36 Va. App. 298, 549 S.E.2d

634 (2001), this Court defined the first category, a consensual

encounter, the type at issue here, as:

          [An] encounter [that] exists when "a
          reasonable person would feel free to
          disregard the police and go about his
          business." "Such encounters 'need not be
          predicated on any suspicion of the person's
          involvement in wrongdoing,' and remain
          consensual 'as long as the citizen
          voluntarily cooperates with the police.'"

Id. at 306, 549 S.E.2d at 638 (citations omitted).

     In the instant case, credible evidence supports the trial

court's finding that the encounter between appellant and Bates

was consensual.   "[T]he trial court, acting as fact finder, must

evaluate the credibility of the witnesses [and] resolve the

conflicts in their testimony . . . ."     Witt v. Commonwealth, 215

Va. 670, 674, 212 S.E.2d 293, 297 (1975).    The trial court

resolved the factual dispute in favor of the Commonwealth, and

we are bound by its "findings of historical fact."     See McGee,

25 Va. App. at 198, 487 S.E.2d at 261.    Bates asked appellant if

he could speak with him and search his pockets.    Appellant said

"no problem," and agreed to the search.    Appellant walked to the

officers' car and began to empty his pockets.    The officers used

no force or threats that would have led a reasonable person to

believe he was not free to leave.   Additionally, the fact that

the police asked for appellant's identification did not turn




                               - 5 -
this consensual encounter into a detention.     See McCain v.

Commonwealth, 261 Va. 483, 545 S.E.2d 541 (2001).

     Because the initial stop in this case was consensual, it

required no reasonable articulable suspicion.    When Bates found

the "little ball" of what he believed to be crack cocaine in

appellant's pocket, and appellant attempted to run, the nature

of the encounter became non-consensual.   See Buck v.

Commonwealth, 20 Va. App. 298, 303, 456 S.E.2d 534, 536 (1995)

(flight may give rise to reasonable suspicion of criminal

activity); Illinois v. Wardlow, 528 U.S. 119, 124-25 (2000)

(flight is the "consummate act of evasion" and is suggestive of

wrongdoing).   At that point, Bates had probable cause to arrest

appellant and conduct the search of his person that revealed the

residue in his pocket, $115 cash and a cell phone.

     We hold that trial court did not err in refusing to

suppress the cocaine residue, cash and cell phone found in the

search of appellant.

      II.   SUFFICIENCY OF THE EVIDENCE/INTENT TO DISTRIBUTE

     Appellant next contends that, assuming the cocaine residue

found in his pocket was discovered as a result of a proper

search, the evidence did not establish that he intended to

distribute it.   We agree.




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     This case is controlled by our decision in Stanley v.

Commonwealth, 12 Va. App. 867, 407 S.E.2d 13 (1991) (en banc). 2

               The question before us . . . 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
          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 intent
          to distribute that substance.

Id. at 869, 407 S.E.2d at 15.

     In the instant case, the evidence fails to prove that

appellant intended to distribute the cocaine residue found in

his pocket.   The trial court specifically found that the

evidence failed to prove that the appellant possessed the

cocaine found in the napkin in the parking lot.   Like the

appellant in Stanley, no evidence established that the quantity

of residue he possessed could be distributed.   Thus, to prove

the intent to distribute, the other case facts must show the

requisite indicia of intent to distribute.   While we agree that

possession of a large amount of cash while in possession of

drugs may be an indicia of sale, neither the small amount of

money, $115, nor the possession of a cell phone provides the



     2
       The Commonwealth concedes that the decision in Stanley, 12
Va. App. 867, 407 S.E.2d 13, controls the decision in this case.

                                - 7 -
nexus in this case.   See Servis v. Commonwealth, 6 Va. App. 507,

371 S.E.2d 156 (1988) (over $9,000 packaged with bank bands in

thousand dollar increments of fifty and one hundred dollar

bills, properly considered in determining intent to distribute).

Thus, the trial court erred in finding the evidence sufficient

to prove that appellant intended to distribute the residue found

in his pocket.

     For the foregoing reasons, we reverse appellant's

conviction of possession with intent to distribute cocaine and

remand for entry of an order finding the appellant guilty of

possession of cocaine pursuant to Code § 18.2-250 and for

resentencing on the lesser-included offense.

                                          Reversed and remanded.




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