Opinion
Record No. 1882-93-2
Decided: March 21, 1995
FROM THE CIRCUIT COURT OF DINWIDDIE COUNTY, Thomas V. Warren, Judge
(John B. Chappell, on brief), for appellant. Appellant submitting on brief.
Robert B. Condon, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.
Present: Judges Coleman, Bray and Senior Judge Hodges
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
Appellant was convicted of violating Code Sec. 18.2-248.1(a) (2) by possessing more than one-half ounce but less than five pounds of marijuana with intent to distribute. He contends that the trial court erred by admitting into evidence Catherine Cote's testimony that he had previously grown a marijuana crop and had sold and bartered it. He further contends that the evidence is insufficient to prove that he intended to distribute the marijuana found in his possession. We find that the trial court did not err by admitting the testimony and that the evidence is sufficient to prove an intent to distribute the seized marijuana.
Catherine Cote testified, over the defendant's objection, that he had grown a crop of marijuana from which he had on various occasions sold some, bartered some, and used some. Generally, evidence of other crimes or bad acts of an accused is inadmissible in a criminal prosecution. Kirkpatrick v. Commonwealth, 211 Va. 269, 272, 176 S.E.2d 802, 805 (1970). See also Donahue v. Commonwealth, 225 Va. 145, 154, 300 S.E.2d 708, 772-73 (1983). However, other crimes evidence is admissible if it tends to prove intent or guilty knowledge or demonstrates a common scheme or plan of which the crime charged is part, or is otherwise relevant to prove a material fact or element, provided the prejudicial effect of such evidence does not outweigh its probative value. Rodriguez v. Commonwealth, 18 Va. App. 277, 280-81, 443 S.E.2d 419, 422 (1994), aff'd, ___ Va. ___, ___, ___ S.E.2d ___, ___ (1995).
Cote's testimony that Thornton had grown the seized marijuana and on other occasions had sold and bartered it, while being evidence of other bad acts or crimes, was highly probative of the fact that the appellant intentionally engaged in the distribution of his marijuana crop. Wilkins v. Commonwealth, 18 Va. App. 293, 298-99, 443 S.E.2d 440, 444 (1994). The evidence proves that the defendant grew a crop of marijuana and, as part of an ongoing course of conduct, he used, sold, and bartered the marijuana crop. Cote's testimony explaining the various uses that the defendant had made of the marijuana was relevant to an understanding and proof of what use he intended to make of that marijuana that was seized at his residence.
Thornton also contends that the evidence is insufficient to permit the fact finder to infer that he intended to distribute the marijuana in his possession. "Intent is the purpose formed in a person's mind which may, and often must, be inferred from the facts and circumstances in a particular case." David v. Commonwealth, 2 Va. App. 1, 3, 340 S.E.2d 576, 577 (1986).
The question of appellant's intent must be determined from the outward manifestation of his actions leading to usual and natural results, under the peculiar facts and circumstances disclosed. This determination presents a factual question which lies peculiarly within the province of the [fact finder]. The [fact finder] may consider the conduct of the person involved and all the circumstances revealed by the evidence.
Hughes v. Commonwealth, 18 Va. App. 510, 519, 446 S.E.2d 451, 457 (1994) (rehearing en banc). "Possession with intent to distribute is a crime which requires 'an act coupled with a specific intent.' " Stanley v. Commonwealth, 12 Va. App. 867, 869, 407 S.E.2d 13, 15 (1991) (reh'g en banc) (citation omitted).
Cote's uncontroverted testimony was that on Friday, before Thornton's arrest on Monday, he prepared to sell ten bags of marijuana for $200. Cote stated, "He informed me he was going to take [the marijuana] the next day to Richmond and sell it. What happened from there, I do not know." On the following Monday, Sergeant Townsend arrested the appellant and recovered .88 ounces of marijuana from the canister. Although Cote testified that Thornton also told her that he intended to keep some of the marijuana in the container for his own personal use, the intent to personally use a portion of the whole does not negate a person's intent to also distribute some of the drug. An individual can have two different intents for a given quantity of a controlled substance. Cote further testified that the appellant in the past had grown marijuana, had used it daily, and on occasion, had bartered and distributed marijuana.
The fact finder could reasonably infer from Cote's testimony concerning the appellant's stated intention to sell the marijuana that he intended to sell some portion of that which he had in his possession. See Wynn v. Commonwealth, 5 Va. 283, 292, 362 S.E.2d 193, 198 (1987); see also Martin v. Commonwealth, 13 Va. App. 524, 527, 414 S.E.2d 401, 402 (1992). The evidence that Thornton had made other recent sales or distributions from the marijuana crop, together with his stated intention to sell a portion of the marijuana of which that seized had been a part, was sufficient to prove that he intended to distribute the marijuana.
Thornton's reliance on the holding in Stanley, 12 Va. App. at 869, 407 S.E.2d at 15, is to no avail. Stanley held that a drug residue that could not be the subject of distribution could not support a conviction for possession with the intent to distribute merely because the accused may have had a general intent to distribute drugs. Unlike Stanley, in the present case, a sufficient quantity of marijuana existed for distribution purposes. As the holding in Stanley establishes, when an accused possessed a large enough quantity of drugs to be distributed, the proper analysis revolves around the Colbert v. Commonwealth, 219 Va. 1, 244 S.E.2d 748 (1978), and Hambury v. Commonwealth, 3 Va. App. 435, 350 S.E.2d 524 (1986), line of cases.
From this record, sufficient evidence exists from which the fact finder could reasonably conclude that the appellant intended to distribute the .88 ounces of marijuana.
We, therefore, affirm.
Affirmed.