Opinion
Record No. 2352-92-4
Decided: June 14, 1994
FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA, Alfred D. Swersky, Judge
Affirmed.
Susan L. Korfanty, Senior Assistant Public Defender, for appellant.
Robert B. Condon, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.
Present: Chief Judge Moon, Judge Elder and Senior Judge Duff
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
William Ray Thomas was convicted of possession of crack cocaine. On appeal, he contends evidence presented by the Commonwealth was insufficient to support his conviction. "On appeal, we review the evidence in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom." Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987). Viewing the evidence under this standard of review, we affirm.
While working undercover, Detective Larry Canada approached appellant "and asked him was anybody working?" Appellant answered, "no," but he said, "I know where we can get some." Appellant got in Canada's car and directed him to drive to a specific location and park. They got out of the car, and Canada walked behind appellant, who confronted a man on the street and asked "was he holding?" At first, the man, named "Hare," answered "no," and walked away. Hare then came back toward Canada and appellant and asked, "What do you all want?" Appellant responded that "he wanted a 20."
Canada observed Hare give appellant an "off-white color, pebble-like substance about the size of an eraser head." Canada's experience led him to believe that the item was crack cocaine. Appellant gave Hare "a $20 bill." Canada then told Hare that he also "wanted a 20," and Hare gave him "two small pebbles, a rock-like substance, and I [Canada] paid him a $20 bill."
After the transactions, Canada dropped appellant off where he had picked him up, and he called in descriptions and locations of appellant and Hare. Hare was arrested ten to fifteen minutes after the drug deal, and crack cocaine was found underneath his car seat. When appellant was arrested "several minutes" after Canada dropped him off, "no crack cocaine was recovered from him." Lab tests established that the substance purchased by Canada and the substance recovered from Hare's car were crack cocaine.
After appellant's arrest, he signed a waiver of Miranda rights form and made the following statement to Officer William Bunny:
I was not out there dealing. I was actually looking to buy myself. The only reason I took the other guy over to the dealer was because he wanted to buy like I did. He was the only person I took to the dealer to buy crack cocaine. I received no money or drugs for taking him there. I know it was wrong and think it was a stupid thing to do. I do have a crack cocaine habit, I do not deal. I am willing to get treatment for my problem. I am willing to testify against the dealer.
Canada testified as to his training and experience in street level drug dealing and his familiarity with the lexicon of drug dealers and buyers. According to Canada, the question "Are you working?" means "[A]re you selling?" When a person asks "What do want?" that means "he has some drugs or he has something illegal . . . for sale, and that you can purchase from him." When someone asks for "a 20," they are requesting "a 20 [dollar] rock of crack cocaine."
The trial court, sitting without a jury, acquitted appellant of distribution of cocaine, and convicted him of possession of cocaine.
"The nature of [an] illegal substance transferred need not be proved by direct evidence but can be demonstrated by circumstantial evidence." Hill v. Commonwealth, 8 Va. App. 60, 63, 379 S.E.2d 134, 136 (1989).
The types of circumstantial evidence that may be considered include the following:
[E]vidence of the physical appearance of the substance involved in the transaction, evidence that the substance produced the expected effects when sampled by someone familiar with the illicit drug, evidence that the substance was used in the same manner as the illicit drug, testimony that a high price was paid in cash for the substance, evidence that the transactions involving the substance were carried on with secrecy or deviousness, and evidence that the substance was called by the name of the illegal narcotic by the defendant or others in his presence.
Id. (quoting United States v. Dolan, 544 F.2d 1219, 1221 (4th Cir. 1976)).
Appellant admitted his intention to purchase a twenty dollar rock of crack cocaine. He asked Hare for a "20" and handed him a twenty dollar bill in exchange for an "off-white color, pebble-like substance about the size of an eraser head." Detective Canada testified, without objection, that he believed the item sold to appellant was crack cocaine. Canada used the exact words used by appellant, telling Hare he also wanted a "20," for which he gave Hare twenty dollars and received a rock-like substance that proved to be crack cocaine.
Applying the analysis approved in Hill, 8 Va. App. at 63, 379 S.E.2d at 136, we find that: (1) Canada described the physical appearance of the item purchased by appellant, causing the detective to believe that, based on his experience, it was cocaine; (2) a high price was paid in cash for the small amount of substance; (3) the transaction between appellant and Hare, like the one between Canada and Hare, was carried on with secrecy or deviousness; and (4) appellant referred to the substance by its street name, a "20," indicating a twenty dollar rock of crack cocaine.
From this evidence, the fact finder could reasonably find beyond a reasonable doubt that appellant possessed cocaine. See Myrick v. Commonwealth, 13 Va. App. 333, 340, 412 S.E.2 176, [ 412 S.E.2d 176], 180 (1991) (finding sufficient evidence based on eyewitness account of the transaction by a police officer and testimony that street name of drug was used and intended to refer to illegal drug in question); cf. Hinton v. Commonwealth, 15 Va. App. 64, 421 S.E.2d 35 (1992) (reversing conviction where there was no evidence that an illegal substance was involved; Commonwealth failed to establish the existence of the corpus delicti; vials with residue not analyzed; and aluminum can which may have been the one tested and found to contain drugs was never introduced or properly identified).
For the reasons stated, appellant's conviction is affirmed.
Affirmed.