Possession of Cocaine

TROY ANTHONY BURKE v. COMMONWEALTH OF VIRGINIA

COURT OF APPEALS OF VIRGINIA

1995 Va. App. LEXIS 672

The package landed in the street. It contained 2.83 grams of cocaine in a solid form. Burke yelled to Dixon “to go get the stuff.” The officer told Dixon not to move, and he recovered the package. The officer searched the vehicle and found no paraphernalia that was consistent with drug distribution or use.  Burke testified that when the officer was approaching his vehicle, Dixon asked him “to hold the package of cocaine because he did not want to be charged. Burke testified that he knew Dixon was “well known as a drug dealer,” knew the package contained cocaine, and intended to return the package to Dixon. The trial judge found that Burke had accepted the package from Dixon and based upon that finding found Burke guilty as a principal in the second degree on both charges.

Whether the evidence was insufficient to prove beyond a reasonable doubt that the defendant was guilty as a principal in the second degree?

The court held that “in order to sustain Burke’s conviction as a principal in the second degree, the trial judge had to find beyond a reasonable doubt that Burke knew that Dixon intended to distribute the cocaine to others rather than keep it for his own personal use and that Burke intended to further this crime. No evidence in the record proves that hypothesis beyond a reasonable doubt.  The facts are sufficient to prove that Burke knew that the package contained cocaine and that he willingly aided Dixon by holding the package. However, the evidence does not prove beyond a reasonable doubt that Dixon had the requisite intent to distribute the cocaine. Although a narcotics detective estimated that 2.83 grams of cocaine had a “street value” of $ 700 to $ 1,000, his testimony did not exclude the hypothesis of personal use. The detective only testified that, in his experience, users of cocaine usually possess only $ 50 to $ 100 of rock cocaine at a time.  The cocaine was not packaged for distribution and, as such, was consistent with personal use. The officer did not testify that $ 700 worth of cocaine was an amount “totally inconsistent with personal use over a period of time. At best, the Commonwealth proved Burke’s possession of cocaine. Suspicion of guilt is not sufficient for a conviction. The Commonwealth had the burden to prove beyond reasonable doubt intent to distribute and having failed to do so, Burke’s conviction cannot stand.”

These summaries are provided by the SRIS Law Group.  They represent the firm’s unofficial views of the Justices’ opinions.  The original opinions should be consulted for their authoritative content.

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