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Servis v. Commonwealth7/5/1988
conviction.... Because direct proof is often impossible in this type case, intent may be shown by circumstantial evidence. Existence of the intent, however, cannot be based upon surmise or speculation.
Patterson v. Commonwealth, 215 Va. 698, 699, 213 S.E.2d 752, 753 (1975)(citation omitted).
The majority concedes that the amount of cocaine and marijuana was "relatively small." In Dukes v. Commonwealth, 227 Va. 119, 313 S.E.2d 382 (1984), the Supreme Court reversed a conviction based upon circumstantial evidence in a case involving a "relatively small quantity of marijuana" and stated that the intent to distribute a controlled substance may be inferred from the quantity of the substance possessed by the accused "if it is greater than the supply ordinarily possessed for one's personal use." Id. at 122, 313 S.E.2d at 383. The evidence in this case neither establishes that the amounts of marijuana and cocaine were incompatible with Servis' defense that he possessed them for his own personal use nor provides a basis upon which to conclude that the quantities of marijuana or cocaine were greater than the supply ordinarily possessed by a narcotics user for personal use. See Hunter v. Commonwealth, 213 Va. 569, 570, 193 S.E.2d 779, 780 (1973).
The method of packaging adds nothing to the analysis whether Servis had an intent to distribute. "The mode of packaging and the way the packages were hidden are as consistent with possession for personal use as they are with intent to distribute. It is just as plausible that the defendant purchased the packaged substances for personal use as it is that packaged the [substances] for distribution." Dukes, 227 Va. at 123, 313 S.E.2d at 384. " ossession and ownership may imply intent to use rather than intent to distribute...." Hunter, 212 Va. at 571, 193 S.E.2d at 780.
The majority's assertion that "paraphernalia used in the packaging process was seized" is pure surmise because no evidence in this record establishes that any of the cocaine or marijuana seized from Servis' room was packaged in aluminum foil. Nor is there any evidence that either substance was mixed with the baking soda. At no time did either officer testify that either item had been used to distribute the substances or to prepare the substances for distribution. Deputy Farmer testified that the foil and the baking soda could be used either for freebasing (a method of injecting cocaine) or for packaging the cocaine. Moreover, the evidence established that Servis was a drug user, and the search of his vehicle disclosed evidence that indicated he had in fact used the cocaine.
The record also contains an explanation for the cash in his possession and contradicts the majority's assertion that Servis had no
bank account and no satisfactory explanation for how he earned his money. All of the money that was seized was in large denominations and wrapped with Maryland bank labels. Servis testified that his bank account had a remaining balance of $10. He said that he had the large amount of money because he was on his way to Alabama, where he intended to relocate, and because he did not want to leave his money in the bank due to his belief that the Maryland financial institutions were having difficulties. He testified that he earned the money through his business as a shrimp salesman in Maryland. He further testified that his business co
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