Antonio Ewell Morse v Commonwealth of Virginia

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.

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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.

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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.

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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.

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"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,

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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.