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Rice v. Commonwealth5/11/1993
f a controlled substance creates an inference that the drug is held for personal use, when considered in conjunction with other circumstances, the small quantity possessed may support a finding of an intent to distribute." Early v. Commonwealth, 10 Va. App. 219, 222, 391 S.E.2d 340, 341 (1990) (citation omitted). Other such circumstances include the method of packaging and the possession of packaging paraphernalia and an unusual amount of cash. Servis, 6 Va. App. at 524, 371 S.E.2d at 165. In the Early case, police found "extensive packaging paraphernalia," including a spoon, sifter, zip-loc bags and a plastic vial--some of which contained cocaine residue--and a cutting agent. 10 Va. App. at 222, 391 S.E.2d at 342. In Servis, the Court noted that the quantity of drugs found--26.42 grams of cocaine and 2.02 ounces of marijuana--was relatively small. 6 Va. App. at 513, 525, 371 S.E.2d at 158, 165. However, it pointed to several other factors, including the method of packaging of the drugs, and the presence of packaging paraphernalia and a large amount of cash--almost $10,000--in the motel room. Id. at 525,
371 S.E.2d at 165. On that basis, the Court found the evidence sufficient to sustain a conviction for possession with intent to distribute.
In this case, in contrast to both Servis and Early, the police found no drug paraphernalia or packaging materials to indicate that appellant possessed the drug with intent to distribute. The amount of marijuana possessed--0.74 ounces--was even smaller than the amount possessed in Servis. The evidence also showed that appellant tested positive for marijuana use. These facts, in combination, tend to negate any inference that he intended to distribute the drug. Although his possession of such a large amount of cash creates suspicion, proof of intent to distribute may not be based on speculation alone.
Because the Commonwealth's evidence in this case fails to exclude every reasonable hypothesis of innocence, we reverse appellant's conviction. The Commonwealth may proceed on a charge of simple possession if it be so advised.
Reversed.
Judges Footnotes
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