COURT OF APPEALS OF VIRGINIA 

Present: Judges Coleman, Willis and Elder 

Argued at Richmond, Virginia 

RANDY ALFONZO LEFTWICH 

 MEMORANDUM OPINION* BY 

v. Record No. 2466-99-3 JUDGE JERE M. H. WILLIS, JR. 

 NOVEMBER 28, 2000 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF THE CITY OF MARTINSVILLE 

Charles M. Stone, Judge 

 James R. McGarry (Young, Haskins, Mann, 

Gregory & Smith, P.C., on brief), for 

appellant. 

 H. Elizabeth Shaffer, Assistant Attorney 

General (Mark L. Earley, Attorney General, on 

brief), for appellee. 

 

* Pursuant to Code § 17.1-413, this opinion is not 

designated for publication.

 On appeal from his conviction of possession with intent to 

distribute cocaine, in violation of Code § 18.2-248, Randy 

Alfonzo Leftwich (appellant) contends that the Commonwealth 

failed to prove his intent to distribute. We reverse 

appellant's conviction of possession with intent to distribute 

and remand for conviction and sentencing on the lesser offense 

of possession of cocaine, if the Commonwealth be so advised. 

I. BACKGROUND

On December 3, 1997, the Martinsville Police Department 

executed a search warrant at 125 Askin Street in the City of 
Martinsville, Virginia, which was rented to appellant's aunt, 

Barbara Leftwich. 

In the front bedroom, the police found Barbara Leftwich 

lying in bed with a small child. Appellant was at the foot of 

the bed and rose to his feet as the officers walked into the 

room. As appellant removed his hands from his pocket, $15 and a 

plastic baggie containing 2.87 grams of cocaine fell to the 

floor, and $79 in cash was lying on the bed. Appellant 

acknowledged that these items were his. 

In the same front bedroom, the police also seized a green 

beeper and a small amount of money lying on a nightstand near 

the bed and additional cocaine and some marijuana wrapped in 

tissue inside an armoire. Appellant denied ownership or 

knowledge of these items. He asked the officers, "how much time 

in jail did [they] think he'd have to pull?" 

In the rear bedroom, the police found the appellant's twin 

brother, Landy Leftwich (Landy), in bed with a sixteen-year-old 

woman. In this bedroom the police found a .40 caliber handgun, 

ammunition for the handgun, a Bearcat scanner and a set of car 

keys. None of these items was attributable to appellant. 

In the living room, the police seized a black leather 

jacket containing $1,956 in different denominations. This 

jacket was not tied to appellant. 

Finally, the police found 17.9 grams of free base cocaine 

under the floor mat of a car parked at the house. The keys to 

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the car were found in the rear bedroom on the headboard of the 

bed where Landy and the sixteen-year-old woman were lying. The 

car was titled in the name of a third party not connected with 

this case. This cocaine was not tied to appellant. 

Appellant moved to strike at the conclusion of the 

Commonwealth's evidence on the ground that it was insufficient 

to prove his possession of cocaine with the intent to 

distribute. The motion was denied, and appellant presented no 

evidence. After one of his codefendants presented evidence, 

appellant renewed his motion to strike, which was again denied. 

II. ANALYSIS

Appellant concedes that the evidence was sufficient to 

prove he possessed the 2.87 grams of cocaine that fell from his 

pocket when the police entered the front bedroom. "This case 

therefore presents the question whether the facts proven by the 

Commonwealth established an intent to distribute rather than 

mere possession for personal use." Wells v. Commonwealth, 2 Va. 

App. 549, 551, 347 S.E.2d 139, 140 (1986). Upon reviewing the 

record, we hold that the evidence was insufficient to prove 

appellant intended to distribute cocaine. 

"On appeal, we review the evidence in the light most 

favorable to the Commonwealth, granting to it all reasonable 

inferences fairly deducible therefrom." Martin v. Commonwealth, 

4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987). "The jury's 

verdict will not be disturbed on appeal unless it is plainly 

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wrong or without evidence to support it." Traverso v. 

Commonwealth, 6 Va. App. 172, 176, 366 S.E.2d 719, 721 (1988). 

"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). 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). 

The evidence established that appellant possessed the 2.87 

grams of cocaine that fell from his pocket. However, no 

evidence proved that he owned or constructively possessed the 

other items of contraband found throughout the house. The mere 

presence of the black leather jacket containing $1,956 in cash, 

the .40 caliber handgun and ammunition, and the Bearcat scanner, 

while the appellant possessed the 2.87 grams of cocaine in the 

front bedroom, does not exclude the reasonable hypothesis that 

those items belonged to someone other than the appellant. 

Barbara Leftwich, Landy Leftwich, and the sixteen-year-old woman 

were all present in the house when the police executed the 

warrant. 

Although the appellant was a frequent visitor to the home, 

he did not live there. Other than his presence, the only 

evidence linking him to the premises was the testimony of 

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Barbara Leftwich that the appellant and his twin brother "were 

welcome to come and go pretty much as they chose" and that they 

had "free reign" in her home. He kept no clothes, important 

papers or other personal belongings there. 

The appellant's question to the police, "how much time in 

jail did [the police] think he'd have to pull," does not prove 

an intent to distribute. Although this question may suggest 

consciousness of guilt, that guilt could be of possession only. 

Finally, no evidence proved that the quantity of cocaine 

appellant possessed was inconsistent with personal use. See

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). Mere "'[p]ossession of a small quantity creates an 

inference that the drug is for personal use.'" Servis, 6 Va. 

App. at 524, 371 S.E.2d at 165 (quoting Monroe v. Commonwealth, 

4 Va. App. 154, 156, 355 S.E.2d 336, 337 (1987)). The 

"[e]xistence of . . . intent . . . cannot be based upon surmise 

or speculation." Patterson v. Commonwealth, 215 Va. 698, 699, 

213 S.E.2d 752, 753 (1975). 

For these reasons, we hold the evidence was insufficient to 

support appellant's conviction for possessing cocaine with the 

intent to distribute in violation of Code § 18.2-248. 

Therefore, we reverse his conviction and remand the case to the 

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trial court for retrial on possession of cocaine, if the 

Commonwealth be so advised. 

 Reversed and remanded.

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