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COURT OF APPEALS OF VIRGINIA
Present:    Chief Judge Felton, Judges Elder, Frank, Humphreys, Kelsey, McClanahan, Haley, Petty,
Beales, Powell and Alston
Argued at Richmond, Virginia
KEVIN L. HOLLOWAY
                                                                                                                            OPINION BY
v.                                                                                                   Record No. 0828-08-1   JUDGE ROBERT P. FRANK
FEBRUARY 15, 2011
COMMONWEALTH OF VIRGINIA
UPON A REHEARING EN BANC
FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
Johnny E. Morrison, Judge
S. Jane Chittom (Office of the Capital Defender, on briefs), for
appellant.
Leah A. Darron, Senior Assistant Attorney General (Kenneth T.
Cuccinelli, II, Attorney General, on brief), for appellee.
Kevin L. Holloway (“appellant”) was convicted, in a bench trial, of possession with
intent to distribute an imitation controlled substance, in violation of Code § 18.2-248(G), and
assault and battery of a law enforcement officer, in violation of Code § 18.2-57.  On a rehearing,
a divided panel reversed the possession with the intent to distribute conviction, but affirmed the
conviction for assault and battery of a law enforcement officer.1   See Holloway v.
Commonwealth, 56 Va. App. 667, 696 S.E.2d 247 (2010).
We granted the Commonwealth’s petition for rehearing en banc and stayed the mandate
of the panel’s decision.  On rehearing en banc, we now lift the stay and conclude the evidence
was sufficient to prove an intent to distribute.  We affirm appellant’s conviction on that charge.
1 The assault and battery conviction is not before this en banc Court.




BACKGROUND
On the evening of August 19, 2006, Portsmouth police responded to a residence and
observed appellant standing on the porch.  They also observed another male standing in front of
the porch.  As the police pulled up to the residence, the second male began walking to the street.
He was not apprehended.
The police observed appellant making a “pitching motion” with his left hand toward the
front door.  The officer was unable to determine what appellant threw.  Appellant was ordered to
the ground.  As one officer advanced toward the house, he observed a plastic bag (“corner
baggie”) resting on the porch, in the area of appellant’s “pitching motion.”
Approximately fifteen to thirty seconds elapsed between the time appellant moved his
arm and Officer Riddle’s observation of the corner baggie.  The corner baggie contained three
smaller corner baggies, each holding what appeared to be $20 worth of crack cocaine.  Testing
later revealed the substance was not crack cocaine, but an imitation substance.
During the officers’ interaction with appellant, no one else entered the porch area.  The
officers did not find any scales, packaging materials, or ingestion devices, either around the
porch or on appellant’s person.  Officer Riddle testified that appellant did not have any money on
his person, or if he did, it was “a minimal amount, not worth recovering.”  Appellant was
arrested that evening.
At trial, Detective K. Gavin qualified, without objection, as an expert in the use,
packaging, and distribution of narcotics.  He testified that possession of three individually
wrapped rocks of an imitation controlled substance, without possession of a smoking device, is
inconsistent with personal use.  He stated, “[T]here is no reason to possess an imitation
controlled substance unless [an individual was] either ripped off or . . . possessed it to distribute.”
Detective Gavin dismissed the possibility that an individual would unknowingly purchase crack
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cocaine in three individually wrapped baggies apparently worth $20 each, because “[i]t is not
cost effective for a user to purchase three twenty-dollar rocks individually, packaged that way,
for sixty dollars.  They could get a lot more crack if they purchase[d] it in a larger quantity.”
Detective Gavin opined that a regular cocaine user would know that purchasing three
twenty-dollar packages of crack cocaine was not cost effective and that a “new cocaine user . . .
wouldn’t have been purchasing three rocks at the same time.  That’s a lot more than a new
cocaine user would attempt.”  However, when asked whether “all cocaine users, everyone who
buys crack, shops around for the best deal, like Wal-Mart [sic],” Detective Gavin conceded that
he could confirm only “that is what . . . most . . . users do.”
Detective Gavin acknowledged that an individual may not carry a crack pipe or other
ingestion device on their person if they bought the crack cocaine for later use; however, he stated
that “normal user[s]” “maintain a stem or crack pipe on their person when they purchase crack
cocaine.”
The trial court found appellant guilty of possession with the intent to distribute an
imitation controlled substance.  This appeal follows.
ANALYSIS
A. Standard of Appellate Review
On appeal, “we review the evidence in the ‘light most favorable’ to the Commonwealth.”
Pryor v. Commonwealth, 48 Va. App. 1, 4, 628 S.E.2d 47, 48 (2006) (quoting Commonwealth v.
Hudson, 265 Va. 505, 514, 578 S.E.2d 781, 786 (2003)).   “Viewing the record through this
evidentiary prism requires us to ‘discard the evidence of the accused in conflict with that of the
Commonwealth, and regard as true all the credible evidence favorable to the Commonwealth and
all fair inferences to be drawn therefrom.’”  Cooper v. Commonwealth, 54 Va. App. 558, 562,
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680 S.E.2d 361, 363 (2009) (quoting Parks v. Commonwealth, 221 Va. 492, 498, 270 S.E.2d
755, 759 (1980) (emphasis omitted)).
We examine a trial court’s factfinding “with the highest degree of appellate deference.”
Thomas v. Commonwealth, 48 Va. App. 605, 608, 633 S.E.2d 229, 231 (2006).  An appellate
court does not “ask itself whether it believes that the evidence at the trial established guilt
beyond a reasonable doubt.”  Williams v. Commonwealth, 278 Va. 190, 193, 677 S.E.2d 280,
282 (2009) (emphasis in original) (quoting Jackson v. Virginia, 443 U.S. 307, 318-19 (1979)).
Instead, the only “relevant question is, after reviewing the evidence in the light most favorable to
the prosecution, whether any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.”  Sullivan v. Commonwealth, 280 Va. 672, 676, 701 S.E.2d
61, 63 (2010) (citing Jackson, 443 U.S. at 319).  We are “not permitted to reweigh the evidence,”
Nusbaum v. Berlin, 273 Va. 385, 408, 641 S.E.2d 494, 507 (2007), because appellate courts have
no authority “to preside de novo over a second trial,” Haskins v. Commonwealth, 44 Va. App. 1,
11, 602 S.E.2d 402, 407 (2004).
This deferential standard “applies not only to the historical facts themselves, but the
inferences from those facts as well.”  Clanton v. Commonwealth, 53 Va. App. 561, 566, 673
S.E.2d 904, 907 (2009) (en banc) (citation omitted); see also Sullivan, 280 Va. at 676, 701
S.E.2d at 63-64.  Thus, a factfinder may “draw reasonable inferences from basic facts to ultimate
facts,” Haskins, 44 Va. App. at 10, 602 S.E.2d at 406 (citation omitted), unless doing so would
push “into the realm of non sequitur,” Thomas, 48 Va. App. at 608, 633 S.E.2d at 231 (citation
omitted).
In a bench trial, a trial judge’s “major role is the determination of fact, and with
experience in fulfilling that role comes expertise.”  Haskins, 44 Va. App. at 11, 602 S.E.2d at
407 (citation omitted).  Consequently, “we do not substitute our judgment for that of the fact
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finder,” Hamilton v. Commonwealth, 279 Va. 94, 105, 688 S.E.2d 168, 175 (2010), “even if our
opinion were to differ,” Ferguson v. Commonwealth, 51 Va. App. 427, 435, 658 S.E.2d 692, 696
(2008) (en banc).   “If reasonable jurists could disagree about the probative force of the facts, we
have no authority to substitute our views for those of the trial judge.”  Campbell v.
Commonwealth, 39 Va. App. 180, 186, 571 S.E.2d 906, 909 (2002).
B.  Sufficiency - Intent to Distribute
Appellant argues that the evidence is insufficient to prove that he had the intent to
distribute2 in violation of Code § 18.2-248(A).3   Appellant essentially contends the evidence
gives rise to a reasonable hypothesis of innocence, namely that he possessed the imitation crack
cocaine for personal use.  Correctly observing the entire proof of “intent to distribute” is based
on Detective Gavin’s testimony, appellant contends that Gavin’s testimony was ambiguous at
best.
“Where an offense consists of an act combined with a particular intent, proof of the intent
is essential to the conviction.”  Servis v. Commonwealth, 6 Va. App. 507, 524, 371 S.E.2d 156,
165 (1988).   “Because direct proof of intent [to distribute drugs, or imitation drugs] is often
impossible, it must be shown by circumstantial evidence.”  Id.  Circumstantial evidence is as
competent and is entitled to as much weight as direct evidence, provided it is sufficiently
convincing to exclude every reasonable hypothesis except that of guilt.”  Coleman v.
Commonwealth, 226 Va. 31, 53, 307 S.E.2d 864, 876 (1983).  Moreover,
2 He does not contest the fact that he possessed the substance.
3 Code § 18.2-248(A) states in part:
Except as authorized in the Drug Control Act . . . , it shall be
unlawful for any person to manufacture, sell, give, distribute, or
possess with intent to manufacture, sell, give or distribute a
controlled substance or an imitation controlled substance.
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[i]n considering an appellant’s alternate hypothesis of innocence in
a circumstantial evidence case, we must determine “not whether
there is some evidence to support” the appellant’s hypothesis of
innocence, but, rather, “whether a reasonable [fact finder], upon
consideration of all the evidence, could have rejected [the
appellant’s] theories in his defense and found him guilty of [the
charged crime] beyond a reasonable doubt.”   [Commonwealth] v.
[Hudson], 265 Va. 505, 513, 578 S.E.2d 781, 785 (2003) (internal
quotations omitted).  Additionally, “circumstantial evidence is not
viewed in isolation.”  Id. at 514, 578 S.E.2d at 786.   “‘While no
single piece of evidence may be sufficient, the “combined force of
many concurrent and related circumstances, each insufficient in
itself, may lead a reasonable mind irresistibly to a conclusion.”’”
Derr v. Commonwealth, 242 Va. 413, 425, 410 S.E.2d 662, 669
(1991) (quoting Stamper v. Commonwealth, 220 Va. 260, 273, 257
S.E.2d 808, 818 (1979) (quoting Karnes v. Commonwealth, 125
Va. 758, 764, 99 S.E. 562, 564 (1919))).   “Whether an alternate
hypothesis of innocence is reasonable is a question of fact and,
therefore, is binding on appeal unless plainly wrong.”  Archer v.
Commonwealth, 26 Va. App. 1, 12-13, 492 S.E.2d 826, 832
(1997).
Emerson v. Commonwealth, 43 Va. App. 263, 277, 597 S.E.2d 242, 249 (2004).
Absent a direct admission by the defendant, intent to distribute must necessarily be
proved by circumstantial evidence.  See Hunter v. Commonwealth, 213 Va. 569, 570, 193 S.E.2d
779, 780 (1973).  Virginia courts have considered a number of factors alone and in combination
when determining if an intent to distribute exists:   1) packaging (see McCain v. Commonwealth,
261 Va. 483, 545 S.E.2d 541 (2001) (holding that cocaine packaged in two individually wrapped
blocks in a single plastic bag supported a finding of distribution)); 2) quantity (see Early v.
Commonwealth, 10 Va. App. 219, 222, 391 S.E.2d 340, 341 (1990) (noting that if the quantity of
drugs possessed is greater than that ordinarily possessed for personal use, that fact alone may be
sufficient to prove intent; however, where the quantity is small, the fact finder may infer the
drugs were intended for personal use)); 3) presence or absence of drug paraphernalia for personal
use (see Welshman v. Commonwealth, 28 Va. App. 20, 37, 502 S.E.2d 122, 130 (1998) (en
banc) (recognizing the absence of drug “paraphernalia suggestive of personal use” as evidence of
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an intent to distribute)); 4) expert testimony (see Askew v. Commonwealth, 40 Va. App. 104,
110, 578 S.E.2d 58, 61 (2003) (finding that expert testimony, such as from a police officer, is
one factor to be considered by the fact finder in determining whether drugs were possessed with
intent to distribute)); 5) a large amount of money (see Servis, 6 Va. App. at 524, 371 S.E.2d at
165 (“the presence of an unusual amount of money, suggesting profit from sales, is another
circumstance that negates an inference of possession for personal use”)); and 6) paraphernalia
consistent with distribution (see Hambury v. Commonwealth, 3 Va. App. 435, 438, 350 S.E.2d
524, 525 (1986) (“the presence of paraphernalia [e.g., scales, baggie corners, or razor blades]
used in the packaging process” is inconsistent with possession for personal use)).
The Commonwealth need not present evidence of each of the above factors; however, the
totality of the circumstantial evidence must exclude the reasonable hypothesis of possession for
personal use.  Compare Dukes v. Commonwealth, 227 Va. 119, 122-23, 313 S.E.2d 382, 383-84
(1984) (possession of one-half ounce of marijuana packaged in three small envelopes, without
drug paraphernalia or an unusual amount of money, is insufficient to convict a person of
possession with intent to distribute), with Askew, 40 Va. App. at 111, 578 S.E.2d at 62
(possession of $700 worth of crack cocaine, a pager, and $65 in small bills, coupled with the
absence of an ingestion device, is inconsistent with personal use), and White v. Commonwealth,
25 Va. App. 662, 668, 492 S.E.2d 451, 454 (1997) (en banc) (possession of a relatively small
amount of cocaine, together with possession of a pager, an electronic scale, and $581 in small
bills, supports a trial court’s finding that the defendant possessed the cocaine with intent to
distribute).
Here, the facts are not in dispute, nor is the credibility of Detective Gavin.  The outcome
of this case turns on the weight to be accorded the testimony of Detective Gavin, the
Commonwealth’s expert witness.
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Gavin gave three reasons in support of his conclusion that appellant did not possess the
substance for personal use:   (1) no ingestion devices were found on his person, (2) the packaging
was inconsistent with personal use, and (3) the substance was imitation crack, not crack.4
Appellant maintains no evidence proves he knew the substance was an imitation drug.
Gavin’s testimony, however, dismantled the hypothesis, and the sole defense theory of
the case -- that appellant believed he possessed real, not imitation, crack and had indeed been
“ripped off.”  Gavin stated that if appellant was an experienced user he would have purchased
crack in bulk rather than in three packages because he would have been able to obtain more of
the substance.  If, on the other hand, appellant was an inexperienced user, he would not have
purchased that quantity of crack because “[t]hat’s a lot more than a new cocaine user would
attempt.”  Therefore, be he experienced or be he inexperienced, it is unlikely that appellant
would have purchased three packages of the substance, believing it to be crack.
As a result, the hypothesis that appellant believed he purchased crack, not imitation
crack, for personal use and was “ripped off” was undermined by Gavin’s testimony.   “Merely
because defendant’s theory of the case differs from that taken by the Commonwealth does not
mean that every reasonable hypothesis consistent with his innocence has not been excluded.”
Miles v. Commonwealth, 205 Va. 462, 467, 138 S.E.2d 22, 27 (1964).  Consequently, since
appellant was not “ripped off,” the only remaining reasonable hypothesis is that he “possessed it
to distribute.”
Appellant further argues that the evidence failed to exclude another reasonable
hypothesis:  that appellant purchased three packages of crack cocaine because a bulk quantity
was not available at the time.  However, the evidence does not support this suggestion, and
4 Both appellant and the Commonwealth address the significance of appellant discarding
the imitation crack cocaine.  That action is not probative as to whether appellant knew the
substance was imitation, nor whether he intended to distribute it.
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again, the trial court rejected this theory.  It is axiomatic that “the Commonwealth need only
exclude reasonable hypotheses that flow from the evidence . . .                                      .”  Hamilton v. Commonwealth,
16 Va. App. 751, 755, 433 S.E.2d 27, 29 (1993) (emphasis added).  It is not our task to engage in
a game of “what if,” or to attempt to create theories that the evidence does not support.  This
Court should “not base its holdings on ‘what ifs.’”  Newman v. State, 845 A.2d 71, 99 (Md. Ct.
Spec. App. 2002), rev’d on other grounds, 863 A.2d 321 (Md. 2004).  Were we to do so there is
no limit to the theories that may arise from an inventive mind’s eye — e.g., what if appellant
found the imitation crack or was merely holding it for the other man the police observed in the
area?
The absence of a smoking device is relevant in two respects.  First, as noted above, the
absence of a smoking device is evidence of an intent to distribute.  Second, it is reasonable for
the fact finder to conclude that since one cannot “smoke” an imitation drug, there was no need
for appellant to possess a smoking device.  Therefore, the fact finder could reasonably infer that
appellant knew he possessed an imitation substance.
Appellant characterizes as ambiguous Gavin’s testimony that “most” users look for the
best deal and would not buy three individual rocks for personal use.  Gavin also testified “normal
user[s]” maintain some type of smoking device on their person.  Thus, appellant contends,
Gavin’s equivocation allows for the reasonable hypothesis that he is not the “normal user” by not
being economical in his purchases nor “normal” in not carrying an ingestion device.
As fact finder, the trial court rejected this hypothesis of innocence.  The trial court’s
decision foreclosed the possibility that appellant was merely a drug user, not a drug dealer.  The
rejection of a hypothesis of innocence “is binding on appeal unless plainly wrong,” Archer, 26
Va. App. at 12-13, 492 S.E.2d at 832 - even if there is “some evidence to support” the
hypothesis of innocence, Hudson, 265 Va. at 513, 579 S.E.2d at 785.  The expert did not waver
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in his opinion that the circumstances surrounding appellant’s possession of the imitation
substance was inconsistent with personal use.
Appellant relies on Dukes, 227 Va. 119, 313 S.E.2d 382, to support his argument that
lack of an ingestion device may only indicate an intent to smoke the crack at a later time, that a
drug packaged for sale may be as consistent with personal use as with an intent to distribute, and
that one may possess three pre-wrapped pieces for personal use because that was what was
available for purchase.  In Dukes, like in the instant case, no unusual amount of money was
found and the quantity of drugs was relatively small.
Appellant correctly states the holding in Dukes, but one significant and deciding
difference must be noted.  In Dukes, unlike this case, there was no expert testimony interpreting
the circumstances surrounding the possession of the drugs.
Here, the trial judge, sitting as fact finder, weighed Gavin’s testimony.  The trial judge
found appellant guilty of the offense.  This Court must give deference to the fact finder and, a
fortiori, his assessment of Gavin’s testimony.  Giving proper deference to the fact finder compels
us to conclude no reasonable hypothesis of innocence remains.  Accordingly, we are unable to
say that no “rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.”  Jackson, 443 U.S. at 319.  Nor can we say that no “reasonable [fact finder]
. . . could have rejected [the appellant’s] theor[y] in his defense . . .                            .”  Hudson, 265 Va. at 513,
578 S.E.2d at 785.
We affirm appellant’s conviction.
Affirmed.
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Alston, J., with whom Elder, J., joins dissenting.
I respectfully disagree with the majority’s conclusion that the evidence was sufficient as a
matter of law to support appellant’s conviction for possession of an imitation controlled substance
with the intent to distribute.  Accordingly, I would reverse appellant’s conviction and therefore
dissent from the majority opinion.
As stated by the majority, neither the facts, nor the credibility of the Commonwealth’s
expert in the use, packaging, and distribution of narcotics are in dispute.  Supra at 7.  The
majority also posits that “[t]he outcome of this case turns on the weight to be accorded the
testimony of Detective Gavin, the Commonwealth’s expert witness.”  Id.  In reaching this
conclusion, the majority recognizes that the facts of this case are similar to those in Dukes v.
Commonwealth, 227 Va. 119, 313 S.E.2d 382 (1984), in which the Supreme Court of Virginia
held the evidence was insufficient to prove possession with intent to distribute.  Supra at 7.
According to the majority, the presence of Gavin’s expert testimony alone distinguishes Dukes
from the instant case and provides the necessary evidence to determine that a “‘rational trier of
fact could have found the essential elements of the crime beyond a reasonable doubt.’”  Supra at
10 (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)).
Preliminarily, I subscribe to the very measured analysis of the majority that if Detective
Gavin had not testified, the evidence would have been insufficient to convict appellant of
possession of an imitation controlled substance with the intent to distribute.5   In order to prove
intent to distribute, the Commonwealth may rely on circumstantial evidence, so long as the
evidence as a whole excludes every reasonable hypothesis of innocence.  See Emerson v.
Commonwealth, 43 Va. App. 263, 277, 597 S.E.2d 242, 249 (2004); Servis v. Commonwealth, 6
5 I also appreciate that the majority apparently does not suggest that a lack of
circumstantial evidence in a case such as this can be salvaged by simply having an expert testify
in support of a factual or legal proposition.
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Va. App. 507, 524, 371 S.E.2d 156, 165 (1988).   “‘Whether an alternative hypothesis of
innocence is reasonable is a question of fact and, therefore, is binding on appeal unless plainly
wrong.’”  Emerson, 43 Va. App. at 277, 597 S.E.2d at 249 (quoting Archer v. Commonwealth,
26 Va. App. 1, 12-13, 492 S.E.2d 826, 832 (1997)); see also Haskins v. Commonwealth, 44
Va. App. 1, 9, 602 S.E.2d 402, 406 (2004) (holding that where the fact finder has rejected the
hypothesis of innocence, “that determination cannot be overturned as arbitrary unless no rational
factfinder would have come to that conclusion”).
To convict an individual of intent to distribute a real or imitation substance, the
circumstantial evidence must necessarily prove an intent to distribute the substance.  See Adkins
v. Commonwealth, 217 Va. 437, 439-40, 229 S.E.2d 869, 871 (1976) (citing Hunter v.
Commonwealth, 213 Va. 569, 570, 193 S.E.2d 779, 780 (1973)).  Virginia courts have
considered a number of factors alone and in combination when determining if an intent to
distribute exists.                                                                                   “When the proof of intent to distribute . . . rests upon circumstantial evidence,
the quantity which the defendant possesse[d] is a circumstance to be considered.”  Dukes, 227
Va. at 122, 313 S.E.2d at 383.  If the quantity of drugs possessed is greater than that ordinarily
possessed for personal use, that fact alone may be sufficient to prove intent; however, where the
quantity is small, the fact finder may infer the drugs were intended for personal use.  Early v.
Commonwealth, 10 Va. App. 219, 222, 391 S.E.2d 340, 341 (1990) (citing Dutton v.
Commonwealth, 220 Va. 762, 765, 263 S.E.2d 52, 54 (1980)); see also Monroe v.
Commonwealth, 4 Va. App. 154, 156, 355 S.E.2d 336, 337 (1987).
In addition to the quantity of the controlled substance possessed, the Commonwealth may
present other circumstances for the fact finder’s consideration, such as the accused’s conduct and
statements.  Long v. Commonwealth, 8 Va. App. 194, 198, 379 S.E.2d 473, 476 (1989) (citing
Hargrave v. Commonwealth, 214 Va. 436, 437, 201 S.E.2d 597, 598 (1974)).  A trier of fact may
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also consider how the drugs were packaged.  Dukes, 227 Va. at 122-23, 313 S.E.2d at 383-84;
Monroe, 4 Va. App. at 156, 355 S.E.2d at 337.   “‘However, even if the substance is packaged for
distribution, there must be additional evidence to preclude the inference that it was purchased in
the packaged form for personal use[,] rather than being held in that fashion for distribution.’”
Servis, 6 Va. App. at 524, 371 S.E.2d at 165 (quoting Monroe, 4 Va. App. at 156, 355 S.E.2d at
337); accord Dukes, 227 Va. at 123, 313 S.E.2d at 384.  For example, “‘the presence of a large,
or bulk, quantity from which smaller packages may have been made up for distribution’” may
preclude the inference that the defendant possessed the illegal substance for personal use.  Servis,
6 Va. App. at 54, 371 S.E.2d at 165 (quoting Monroe, 4 Va. App. at 156-57, 355 S.E.2d at 337).
Likewise, “the presence of paraphernalia used in the packaging process,” such as scales, baggie
corners, or razor blades, is inconsistent with possession for personal use.  Hambury v.
Commonwealth, 3 Va. App. 435, 438, 350 S.E.2d 524, 525 (1986).
“The presence of an unusual amount of money, suggesting profit from sales, is another
circumstance that negates an inference of possession for personal use.”  Servis, 6 Va. App. at
524, 371 S.E.2d at 165 (citing Colbert v. Commonwealth, 219 Va. 1, 4, 244 S.E.2d 748, 749
(1978); Dukes, 227 Va. at 123, 313 S.E.2d at 384; Wells v. Commonwealth, 2 Va. App. 549,
551-52, 347 S.E.2d 139, 140 (1986)).  The absence of an ingestion device and the presence of a
firearm are also factors that may be considered.  Shackleford v. Commonwealth, 32 Va. App.
307, 327-28, 528 S.E.2d 123, 133 (2000) (citing Langston v. Commonwealth, 28 Va. App. 276,
286, 504 S.E.2d 380, 385 (1998)).  Finally, the fact finder may consider the testimony of expert
witnesses in determining whether possession of an imitation or controlled substance is for
personal use or distribution.  Id. at 327, 528 S.E.2d at 133 (citing Rodriguez v. Commonwealth,
18 Va. App. 277, 443 S.E.2d 419 (1994) (en banc), aff’d, 249 Va. 203, 454 S.E.2d 725 (1995);
Poindexter v. Commonwealth, 16 Va. App. 730, 432 S.E.2d 527 (1993)).
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Here, like in Dukes, appellant possessed a relatively small quantity of an illegal
substance.  This substance was packaged in three small individual corner baggies.  Appellant did
not possess any paraphernalia associated with the distribution of illegal substances, i.e., razor
blades or scales, nor did he possess an unusually large quantity of money or a firearm.
Accordingly, in the instant case, none of the usual factors that overcome the presumption of
possession of a small quantity for personal use were present.
Thus, I agree with the majority that considering all the evidence, except Gavin’s
testimony, there was insufficient evidence to convict appellant of intentionally possessing an
illegal substance.  My consideration of this case diverges from the majority’s analysis in that I
believe the evidence, even with Gavin’s testimony, was insufficient as a matter of law to convict
appellant.  Not only did Gavin’s testimony fail to foreclose appellant’s hypothesis of innocence,
it also contradicted Virginia case law in every respect.  I firmly believe that where expert
testimony is in opposition to case law, it is our duty to give deference to the prior decisions of
Virginia’s appellate courts by concluding that the expert’s testimony, standing alone, fails as a
matter of law to establish the fact it purports to prove.
The majority finds that Gavin’s testimony “dismantled” appellant’s hypothesis of
innocence, namely, appellant’s claim that “[he] believed he possessed real, not imitation, crack
and had indeed been ‘ripped off.’”  Supra at 8.  Gavin testified that the following circumstances
were inconsistent with personal use:  the method of packaging the substance; the absence of an
ingestion device; and the fact that the “crack cocaine” was imitation crack cocaine, rather than
the authentic drug.  Gavin testified that the possession of three baggies of imitation crack was
inconsistent with personal use because an experienced individual could get more for his money if
he bought one larger rock of cocaine, rather than three smaller rocks.  Not only does this
determination presuppose that a seller of drugs always sells each bag at market value and that a
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seller always has a larger rock of cocaine available for purchase, it also assumes that the three
baggies of imitation cocaine had been exchanged for $60, rather than for a discounted price
based on the total quantity purchased.  Further, as the majority acknowledges in its recitation of
the facts, “when [Detective Gavin] was asked whether ‘all cocaine users, everyone who buys
crack, shops around for the best deal, like Wal-Mart [sic],’ [he] conceded that he could confirm
only ‘that is what . . . most . . . users do.’”  Supra at 3 (emphasis added).  By admitting his
testimony covered only what “most . . . users do,” Detective Gavin established the existence of a
reasonable hypothesis of innocence which the trier of fact was not entitled to reject arbitrarily—
that appellant, although a user of crack cocaine, was not like “most” users in this particular
instance and did not “shop[ ] around” for the best deal by attempting to buy his cocaine in a bulk,
undivided quantity.
More importantly, Virginia’s jurisprudence instructs us that “‘even if the substance is
packaged for distribution, there must be additional evidence to preclude the inference that it was
purchased in the packaged form for personal use[,] rather than being held in that fashion for
distribution.’”6   Servis, 6 Va. App. at 524, 371 S.E.2d at 165 (quoting Monroe, 4 Va. App. at
156, 355 S.E.2d at 337); accord Dukes, 227 Va. at 123, 313 S.E.2d at 384.  The majority holds
Gavin’s testimony necessarily leads to the conclusion that “be he experienced or be he
inexperienced, it is unlikely that appellant would have purchased three packages of the
substance, believing it to be crack.”  Supra at 8.  I believe this Court must still consider Gavin’s
6 I would respectfully suggest that the majority’s reliance on the analysis in McCain v.
Commonwealth, 261 Va. 483, 545 S.E.2d 541 (2001) (holding that cocaine packaged in two
individually wrapped blocks in a single plastic bag supported a finding of distribution), cannot
occur in a vacuum.  In my view, the Supreme Court held in McCain that it is appropriate to
consider the quantity of the illegal substance, its packaging, and the presence of an unusual
amount of cash, distribution equipment, or firearms.  As previously noted, appellant herein had
three rocks of fake cocaine, no distinctive packaging, no unusual amount of cash, no distribution
equipment, and no firearms.
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testimony as a single piece of evidence that must be viewed through the prism of Virginia’s case
law.  See Askew v. Commonwealth, 40 Va. App. 104, 109-10, 578 S.E.2d 58, 61 (2003).  As
Virginia’s appellate courts have repeatedly held, when a small amount of an illegal substance is
possessed in prepackaged form, the method of packaging is not a dispositive indicator of
possession for distribution.  Dukes, 227 Va. at 123, 313 S.E.2d at 384; Servis, 6 Va. App. at 524,
371 S.E.2d at 165; Monroe, 4 Va. App. at 156, 355 S.E.2d at 337.  It is error for this Court to
hold otherwise based on the testimony of an expert witness, particularly where the testimony is
equivocal.
Similarly, as to the relevance of the absence of an ingestion device, Detective Gavin
testified only that “normal user[s]” “maintain a stem or crack pipe on their person when they
purchase crack cocaine.”  Supra at 3 (emphasis added).  Again, this testimony leaves open the
reasonable hypothesis that appellant, who possessed the imitation crack cocaine while standing
on the front porch of a residence, although perhaps not a “normal user” of crack cocaine as
described by Detective Gavin in that he did not have a smoking device on this person at that
time, was nevertheless a user of crack cocaine who had a smoking device in close proximity,
perhaps inside the residence of the porch on which he stood.  This hypothesis requires no
additional testimony or leap of faith to constitute a reasonable hypothesis of innocence flowing
from the evidence in the record.  Thus, it may not be arbitrarily rejected by the fact finder.
Further, to the extent that Detective Gavin’s testimony may be viewed as asserting that
the absence of an ingestion device affirmatively established appellant possessed the imitation
cocaine for distribution purposes, that testimony is in direct opposition to Virginia precedent,
which recognizes that the absence of a personal ingestion device “does not give rise to an
inference that [a defendant] was not a drug user.”  Dukes, 227 Va. at 123, 313 S.E.2d at 384.  In
Dukes, which the majority cites, the Supreme Court determined it was “more likely that [the
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defendant] used the drug elsewhere,” rather than at her place of employment.  Id.  Similarly,
here, it is more likely that appellant used the drug somewhere other than on the porch of a house
that was in plain view of the street, such as inside the house itself.  Once more, I do not believe
we may give Gavin’s opinion greater deference than the authority that binds us.
When the Commonwealth’s evidence is wholly circumstantial, “‘all necessary
circumstances proved must be consistent with guilt and inconsistent with innocence and exclude
every reasonable hypothesis of innocence.’”  Dukes, 227 Va. at 122, 313 S.E.2d at 383 (quoting
Inge v. Commonwealth, 217 Va. 360, 366, 228 S.E.2d 563, 567 (1976)).   “Where inferences are
relied upon to establish guilt, they must point to guilt so clearly that any other conclusion would
be inconsistent therewith.”  Dotson v. Commonwealth, 171 Va. 514, 518, 199 S.E. 471, 473
(1938).   “There is no stronger presumption afforded than that an accused is presumed to be
innocent, which cannot be overthrown except by proof of his guilt beyond a reasonable doubt.”
Id. at 517, 199 S.E. at 473.  Here, as a matter of law, the evidence and any inferences to be drawn
from the evidence do not point so clearly to guilt of possession with intent to distribute as to
make unreasonable a conclusion that appellant possessed the substance for his personal use.
In sum, this record provides a dearth of direct evidence, analytically incomplete
circumstantial evidence, and Detective Gavin’s singular expert opinion that the items appellant
possessed were indeed possessed with the intent to distribute.  I would respectfully suggest that
in circumstances involving equivocal expert testimony, and circumstantial evidence that does not
support a conviction, even when viewed in the light most favorable to the Commonwealth, the
evidence fails to exclude a reasonable hypothesis of appellant’s innocence.  See Dukes, 227 Va.
at 123, 313 S.E.2d at 384.  Accordingly, I must dissent.
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