COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Coleman and Senior Judge Cole 

Argued at Richmond, Virginia 

DYWARD JEAN GREGORY 

v. Record No. 2083-94-2 OPINION BY 

 JUDGE SAM W. COLEMAN III 

COMMONWEALTH OF VIRGINIA MARCH 19, 1996 

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND 

Jose R. Davila, Jr., Judge 

 Cullen D. Seltzer, Assistant Public Defender 

(David J. Johnson, Public Defender, on 

briefs), for appellant. 

 Eugene Murphy, Assistant Attorney General 

(James S. Gilmore, III, Attorney General, on 

brief), for appellee. 

 Dyward J. Gregory was convicted in a bench trial of 

possession of cocaine with intent to distribute, a second or 

subsequent offense, in violation of Code § 18.2-248(C). Gregory 

 contends that the trial court erred by denying his motion to 

suppress the evidence seized from him and that the evidence is 

insufficient to prove he intended to distribute cocaine. We hold 

that the trial court did not err and affirm the defendant's 

conviction. 

 At approximately 1:56 a.m. on April 9, 1994, Officer Ronald 

McClaren, Jr. received a radio dispatch that an anonymous caller 

reported that an individual "was standing out in the roadway [at 

the 1700 block of Carlyle Avenue in Richmond] flagging motorists 

down to ask them if they wanted to buy drugs." The caller 

described the individual as a black male wearing a green sweat 
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jacket with a green hooded jacket underneath, a pair of dark 

jeans, and tennis shoes. The caller also provided information 

about the color, make, and "other identifying characteristics" of 

the automobile from which "the individual was supposedly dealing 

in drugs." 

 About two minutes after receiving the dispatch, Officer 

McClaren approached the 1700 block of Carlyle Avenue. He 

observed the defendant in a vehicle matching the description 

given by the anonymous tipster. The defendant was dressed in the 

manner described by the caller. 

 As McClaren approached the defendant's vehicle, the 

defendant looked in McClaren's direction and began to walk away 

from the vehicle. He proceeded down Carlyle Avenue and looked 

over his shoulder toward McClaren as he walked. Officer McClaren 

drove his patrol car beside the defendant and stopped. Because 

McClaren could not see one of the defendant's hands, McClaren 

told the defendant to show the other hand. The defendant did not 

show both hands until McClaren exited his patrol car and drew his 

weapon. After the defendant showed both hands, McClaren 

reholstered his weapon. 

 McClaren explained to the defendant that he was responding 

to a call that an individual was seen selling drugs and that he 

was going to check to determine whether the defendant had 

outstanding arrest warrants. McClaren informed the defendant 

that he would be free to go if there were no problems. The 
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defendant replied, "it's not me. It wasn't me." McClaren then 

conducted a pat-down search of the defendant and felt objects, 

including a hard object, in the defendant's pocket. When 

McClaren asked the defendant what was in the pocket, he replied, 

"[p]lease mister, please don't put anything in my pocket." 

McClaren asked the defendant again what was in the pocket and the 

defendant replied, "I don't know." McClaren then asked the 

defendant if he had "permission to go into [the defendant's] 

pocket," and the defendant replied, "[s]ure, you do." McClaren 

found seven individual bags of crack cocaine in the defendant's 

pocket. 

 Based on the foregoing evidence, the trial court overruled 

the defendant's motion to suppress the cocaine. 

 At trial, McClaren testified that he had recovered seven 

baggies containing 3.4 grams of cocaine from the defendant and 

that the packaging and quantity of the cocaine were consistent 

with distribution. The trial court found the defendant guilty of 

possession of cocaine with intent to distribute, a second or 

subsequent conviction. 

 A police officer may lawfully stop and frisk an individual 

if the officer possesses a reasonable suspicion, based on 

articulable facts, that the individual is or is about to be 

engaged in criminal activity. Terry v. Ohio, 392 U.S. 1, 30 

(1968). The standard for conducting such a detention is less 

than probable cause, but more than an "inchoate and 
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unparticularized suspicion or `hunch.'" Moss v. Commonwealth, 7 

Va. App. 305, 308, 373 S.E.2d 170, 172 (1988) (quoting Terry, 392 

U.S. at 27). "Once the police officer has properly detained a 

suspect for questioning, he may conduct a limited pat-down search 

of the suspect's outer clothing to search for weapons if the 

officer reasonably believes, based on specific and articulable 

facts, that the suspect might be armed and dangerous." Phillips 

v. Commonwealth, 17 Va. App. 27, 30, 434 S.E.2d 918, 920 (1993). 

 In considering whether facts based on an anonymous tip are 

sufficient to provide a police officer a reason to suspect 

criminal activity, the United States Supreme Court has stated 

that "anonymous [information that has] been sufficiently 

corroborated [may] furnish reasonable suspicion . . . [justifying 

an] investigative stop." Alabama v. White, 496 U.S. 325, 331 

(1990). Applying Alabama v. White, we have held that although 

the police do not have to verify every detail provided by an 

anonymous tipster, "[s]ignificant aspects of the informer's 

information must be independently corroborated." Bulatko v. 

Commonwealth, 16 Va. App. 135, 137, 428 S.E.2d 306, 307 (1993). 

See also Johnson v. Commonwealth, 20 Va. App. 49, 54, 455 S.E.2d 

261, 264 (1995) (holding that Terry stop was valid because known 

reliable "informants provided detailed, predictive information 

that the officers were able to corroborate"). 

 Here, the tipster provided a detailed description of the 

individual, the car, the location, and the nature of the illegal 
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activity in which the individual was engaged. Although Officer 

McClaren did not observe the defendant engaged in illegal 

activity, McClaren verified certain details of what the tipster 

observed within moments after receiving the detailed account. 

McClaren verified that the defendant matched the physical 

description, wore clothes, and occupied a vehicle matching the 

description given by the tipster. 

 Admittedly, the facts as related by the caller could have 

been "easily obtained" by a casual observer. Alabama v. White, 

496 U.S. at 332; see Hardy v. Commonwealth, 11 Va. App. 433, 436, 

399 S.E.2d 27, 29 (1990) (holding that verification of "innocent" 

behavior is not sufficient to establish probable cause). In that 

vein, the Supreme Court noted in Alabama v. White that in 

evaluating the informer's reliability that "the anonymous [tip] 

contained a range of details relating not just to easily obtained 

facts and conditions existing at the time of the tip, but to 

future actions of third parties ordinarily not easily predicted." 

Alabama v. White, 496 U.S. at 332 (quoting Illinois v. Gates, 

462 U.S. 213, 245 (1983)). The Court noted, however, that 

reasonable suspicion depends upon "the content of information 

possessed by [the] police" as well as its reliability. Id. at 

330. Accordingly, a detailed description, like that given here, 

by a caller who appears to have been a concerned citizen who 

recently observed a person hailing motorists to sell drugs, 

together with immediate verification of aspects of the 
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description are important factors to consider in determining 

whether the officer had reasonable suspicion, even when the 

description contains facts that are "easily obtained." See

Draper v. United States, 358 U.S. 307 (1959). 

 This Court has held that Alabama v. White does not preclude 

a finding of reasonable suspicion when the anonymous tipster does 

"not provid[e] the government with information that predicts the 

future actions of the [defendant], if some other indicia of 

reliability of the informant exists." Beckner v. Commonwealth, 

15 Va. App. 533, 535, 425 S.E.2d 530, 531 (1993). 

 It is well established that whether reasonable suspicion 

"exists to warrant an investigatory stop is determined by the 

totality of the circumstances." Smith v. Commonwealth, 12 Va. 

App. 1100, 1103, 407 S.E.2d 49, 51 (1991). 

 The circumstances we may consider include "the 

`characteristics of the area' where the stop occurs, 

the time of the stop, whether late at night or not, as 

well as any suspicious conduct of the person accosted 

such as an obvious attempt to avoid officers or any 

nervous conduct on the discovery of their presence." 

Id., 407 S.E.2d at 51-52 (quoting Williams v. Commonwealth, 4 Va. 

App. 53, 67, 354 S.E.2d 79, 87 (1987) (quoting United States v. 

Bull, 565 F.2d 869, 870-71 (4th Cir. 1977), cert. denied, 435 

U.S. 946 (1978))). These circumstances are also relevant in 

determining the reliability of an anonymous informant. 

 In the present case, Officer McClaren found the defendant 

alone around 2:00 a.m. McClaren testified that "we always 

receive complaints of drug dealing in the area of [the 1700 block 
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of] Carlyle Avenue." He also observed further suspicious 

behavior by the defendant. McClaren testified that "when [the 

defendant] looked in my direction and saw me he immediately began 

walking away from the vehicle and began walking down Carlyle 

Avenue." The defendant walked away from McClaren and looked over 

his shoulder. When McClaren pulled his patrol car along side the 

defendant and said, "good morning," the defendant replied, 

"what," and according to McClaren, seemed "slightly agitated." 

The defendant had one of his hands slightly behind his back, and 

McClaren commanded him to "[s]how me the other hand." The 

defendant refused to show his hands until McClaren exited his 

patrol car and drew his weapon. 

 In Smith v. Commonwealth, the police officer saw Smith 

shortly after 10:00 p.m. on a playground that had a reputation as 

a place where drugs were prevalent. When Smith looked in the 

officer's direction, Smith suddenly placed something in his front 

pants pocket. We held that the officer's observations were 

insufficient to warrant an investigatory stop. Smith, 12 Va. 

App. at 1104, 407 S.E.2d at 52; see also Goodwin v. Commonwealth, 

11 Va. App. 363, 367, 398 S.E.2d 690, 692 (1990); Moss, 7 Va. 

App. at 308, 373 S.E.2d at 172. 

 In the present case, however, Officer McClaren observed the 

defendant at 2:00 a.m., in a known drug area, walking away from a 

car he had previously occupied. As he walked away, he looked 

over his shoulder repeatedly at Officer McClaren. Although 
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McClaren did not observe the defendant flagging down cars or 

engaging in other activity consistent with drug distribution, the 

fact that the defendant exited his car and acted nervously upon 

noticing the police tends to add credence to the officer's 

suspicion that the defendant was the person the tipster had 

described as flagging down vehicles and offering to sell the 

occupants drugs. The defendant's behavior thus tended to support 

the informer's report. Based upon the details of the informer's 

tip concerning the defendant's conduct in hailing motorists 

offering to sell drugs, the detailed description of the 

defendant, and Officer McClaren's independent observations and 

partial verification, McClaren had reason to suspect that the 

defendant was engaged in selling drugs. See Draper, 358 U.S. 

307. Therefore, when McClaren stopped the defendant he had 

reason to detain the defendant temporarily in order to inquire 

about his activities and to investigate whether defendant was 

engaged in criminal activity. 

 Officer McClaren stated during cross-examination that he 

requested and was granted permission to search the defendant's 

pockets. The trial court found that the defendant granted "clear 

permission . . . for entry into [his] pockets." "The test of a 

valid consent search is whether it was `freely and voluntarily 

given.'" Deer v. Commonwealth, 17 Va. App. 730, 734, 441 S.E.2d 

33, 36 (1994) (quoting Bumper v. North Carolina, 391 U.S. 543, 

548 (1968)). The Commonwealth must demonstrate that the consent 
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was not the product of duress, and "[t]he question of whether a 

particular `consent to a search was in fact voluntary or was the 

product of duress or coercion, express or implied, is a question 

of fact to be determined from the totality of all the 

circumstances.'" Id. at 735, 441 S.E.2d at 36 (quoting 

Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973)). 

 Here, Officer McClaren conducted a valid Terry stop. 

Although he drew his weapon when the defendant did not show both 

hands, he reholstered the gun before asking for permission to 

search the defendant's pockets. McClaren informed the defendant 

that he was investigating a report of drug dealing and that the 

defendant would be free to go if there were no problems. On 

these facts, the trial court's finding that the defendant 

voluntarily consented to the search of his pockets was not 

"clearly erroneous." Limonja v. Commonwealth, 8 Va. App. 532, 

540, 383 S.E.2d 476, 481 (1989) (en banc), cert. denied, 495 U.S. 

905 (1990). 

 The defendant also contends that the evidence was 

insufficient to prove that he intended to distribute the cocaine 

seized from him. On appeal, the evidence is "viewed in the light 

most favorable to the Commonwealth, and given all reasonable 

inferences fairly deducible therefrom." Albert v. Commonwealth, 

2 Va. App. 734, 741-42, 347 S.E.2d 534, 538 (1986). This Court 

will not disturb the trial judge's verdict "unless it is plainly 

wrong or without evidence to support it." Id. at 742, 347 S.E.2d 
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at 538-39. 

 "When the proof of intent to distribute narcotics rests upon 

circumstantial evidence, the quantity which the defendant 

possesses may indicate the purpose for which it is possessed. 

Possession of a quantity greater than that ordinarily possessed 

for one's personal use may be sufficient to establish an intent 

to distribute it." Iglesias v. Commonwealth, 7 Va. App. 93, 110, 

372 S.E.2d 170, 180 (1988) (en banc) (citations omitted). At 

trial, Officer McClaren testified that, based upon his training 

and experience, he believed that possession of 3.4 grams of 

cocaine was consistent with distribution, not personal use. 

Moreover, McClaren also testified that the method of packaging of 

the cocaine seized from the defendant was consistent with 

distribution. See Early v. Commonwealth, 10 Va. App. 219, 222, 

391 S.E.2d 340, 341-42 (1990). Although Officer McClaren 

testified on cross-examination that it was conceivable that an 

individual with "a serious addiction" could consume around three 

grams of cocaine in two days, we hold that his testimony, viewed 

in the light most favorable to the Commonwealth, was sufficient 

to prove intent to distribute. 

 In addition to testifying that the amount of cocaine seized 

and the method of packaging were consistent with distribution, 

McClaren also testified that the tipster reported that an 

individual was "standing in the street waving down motorists 

[and] asking them if they wanted to purchase drugs." Although 
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the tipster's statement was inadmissible hearsay, see Arnold v. 

Commonwealth, 4 Va. App. 275, 279-80, 356 S.E.2d 847, 850 (1987), 

the defendant failed to object to the statement at the time it 

was offered into evidence. See Burns v. Board of Supervisors, 

227 Va. 354, 363, 315 S.E.2d 856, 862 (1984) (holding that 

failure to object to the admission of the statement constitutes a 

waiver of the hearsay objection). Therefore, the statement was 

properly before the trial court and was relevant to prove the 

defendant's guilt. 

 Because the anonymous tip was sufficiently corroborated, 

Officer McClaren had reasonable suspicion to conduct a Terry

investigatory stop. The seizure of the cocaine was valid because 

the defendant voluntarily consented to the search of his pockets. 

Therefore, the trial court did not err by overruling the 

defendant's motion to suppress the cocaine. Moreover, the 

evidence was sufficient to prove that the defendant intended to 

distribute the cocaine seized from him. Accordingly, we affirm 

the defendant's conviction. 

Affirmed.
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BENTON, J., dissenting. 

 The evidence proved that the police dispatcher relayed an 

anonymous telephone tip to the officer. The officer acted on the 

tip and stopped Gregory. However, the officer did not know the 

tipster and had no basis to believe the tipster was honest or 

reliable. The evidence failed to establish that the anonymous 

tipster was reliable. Thus, the evidence failed to prove that 

the officer had a reasonable articulable suspicion to support a 

Terry stop. 

 The principle is well established that "[t]he informant must 

provide some basis for his knowledge before the police officer 

relies upon it as being reliable enough to support an 

investigatory stop." Beckner v. Commonwealth, 15 Va. App. 533, 

537, 425 S.E.2d 530, 533 (1993). In a case involving an 

anonymous tip, the Supreme Court ruled as follows in upholding a 

Terry stop: 

 [T]he independent corroboration by the police 

of significant aspects of the informer's 

predictions imparted some degree of 

reliability to the other allegations made by 

the caller. 

 [It is] also important that, as in 

[Illinois v. Gates, 462 U.S. 213 (1983)], 

"the anonymous [tip] contained a range of 

details relating not just to easily obtained 

facts and conditions existing at the time of 

the tip, but to future actions of third 

parties ordinarily not easily predicted." 

Id., at 245. . . . What was important was 

the caller's ability to predict respondent's 

future behavior, because it demonstrated 

inside information - a special familiarity 

with respondent's affairs. 
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Alabama v. White, 496 U.S. 325, 332 (1990). Despite the 

predictive nature of the tip and the corroboration, the Court 

nonetheless concluded that "it [was] a close case." Id. 

 Although this Court, in dicta, has stated that reasonable 

suspicion may exist even if the anonymous tipster does not 

"provid[e] the government with information that predicts the 

future actions of the [defendant]," that statement was premised 

upon proof in the record that "some other indicia of reliability 

of the informant exists." Beckner, 15 Va. App. at 535, 425 

S.E.2d at 531. In the absence of predictive information, the 

ingredient that allowed the Supreme Court in White to infer that 

the content of the information "demonstrated [the tipster had] 

. . . a special familiarity with the [suspect's] affairs," 496 

U.S. at 332, the Commonwealth must prove that the tipster had a 

special familiarity with the details of Gregory's affairs. Only 

then will the evidence support the anonymous tipster's 

reliability through other "indicia." See id. at 329-32. 

 The tip that the officer acted upon when he stopped Gregory 

"'provide[d] virtually nothing from which one might conclude that 

[the tipster was] either honest or his information reliable.'" 

496 U.S. at 329. Nothing intrinsic to the tip reasonably allowed 

the officer to draw conclusions of honesty or reliability. The 

tip did not contain any information that indicated the tipster 

had a familiarity with Gregory's affairs. The tip neither 

predicted his future behavior nor contained "a range of details 
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relating not just to easily obtained facts and conditions 

existing at the time of the tip." White, 496 U.S. at 332. 

 The substance of the tip might support an inference that the 

tipster saw Gregory in the vicinity. However, the tip did not 

convey any other information upon which an inference of guilt 

could have been made. The tipster might have been someone who 

merely bore a grudge against Gregory, or a practical joker, or 

another suspicious police officer. The record does not disclose 

any information concerning the tipster and contains no basis upon 

which to conclude that the tipster "appears to have been a 

concerned citizen." Precisely because someone can easily harass 

another person, the Supreme Court has stated that "if a tip has a 

relatively low degree of reliability, more information will be 

required to establish the requisite quantum of suspicion than 

would be required if the tip were more reliable." White, 496 

U.S. at 330. 

 To guard against that same mischief, this Court barred Terry

stops based on tips that reflected no more than a suspicion or a 

hunch of criminal activity. 

 The facts that the police rely upon must 

amount to more than an "inchoate and 

unparticularized suspicion or 'hunch.'" 

Here, the informant's tip did not provide a 

range of detail that would elevate what may 

have been a mere "hunch" to a reasonable 

suspicion. If a hunch is not enough for a 

police officer to effectuate a stop, it 

follows that the hunch of an unnamed 

informant, albeit an informant with some 

indicia of personal reliability, is also not 

sufficient. The fact that the informant's 

hunch is conveyed to the police officer does 
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not raise the hunch to the level of 

reasonable suspicion. "Manifestly, this 

conduct falls below activity necessary to 

justify a reasonable suspicion that a 

violation of law had occurred or was 

occurring." 

Beckner, 15 Va. App. at 537, 425 S.E.2d at 533 (citations 

omitted). The tip in this case neither established that the 

caller was "honest [nor] his information reliable," White, 496 

U.S. at 329, nor negated the hypothesis that the tip was based 

solely on the observer's hunch. Beckner, 15 Va. App. at 537, 425 

S.E.2d at 533. "[S]omething more" than the tip was necessary to 

establish reasonable suspicion in this case. White, 496 U.S. at 

329 (quoting Illinois v. Gates, 462 U.S. 213, 227 (1983)). 

 The Commonwealth attempted to establish the tipster's 

reliability by showing that the officer corroborated aspects of 

the tip by the officer's independent observations. Although the 

officer testified that he observed facts reported by the tipster, 

he observed nothing more than any uninformed tipster might have 

seen. The criminal conduct that the tipster reported, which may 

have been embellished because of a hunch, was not observed by the 

officer. 

 The record established that the anonymous tipster described 

a person to the police dispatcher and informed the dispatcher 

that the person was "standing out in the roadway flagging 

motorists down to ask them if they wanted to buy drugs." When 

the officer arrived at the particular street, he saw a man 

sitting in a vehicle and dressed as described by the tipster. 
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The officer saw no criminal or unusual activity. Thus, the 

officer did not corroborate in any manner the tipster's report of 

illegal conduct. The Commonwealth's assertion that "[c]learly 

the officer reasonably inferred that the [tipster] had observed 

[Gregory] in the act of selling drugs" is baseless. This record 

provides no foundation from which any such inference could have 

been drawn. Before the officer stopped Gregory, the officer 

observed "nothing more than innocent details which any casual 

observer could have given. . . . Anyone who saw [Gregory] . . . 

that day could have given the same description of him." Hardy v. 

Commonwealth, 11 Va. App. 433, 435, 399 S.E.2d 27, 28 (1990). 

 The corroboration the Commonwealth relies upon consists of 

wholly innocent activity that would normally not command the 

attention of the police. These facts do not provide a basis to 

conclude that the tipster was reliable and certainly do not 

negate the hypothesis that the tipster's report was any more than 

a hunch of criminal activity. See Beckner, 15 Va. App. at 537, 

425 S.E.2d at 533. The only reasonable inference to draw from 

these facts is that the tipster saw Gregory in the area, nothing 

more. Conceding that the officer did not observe Gregory 

approaching passing vehicles or engaging in other activity 

consistent with drug distribution, the majority concludes that 

Gregory's departure from his car and "nervous" demeanor added 

credence to the tipster's report that a similarly dressed person 

had been offering to sell drugs. I fail to see the connection. 
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Nothing that the officer observed in Gregory's behavior supported 

the tipster's report. When Gregory walked away from his vehicle 

and watched the police vehicle, he was engaged in perfectly 

lawful activity. We have no idea why Gregory acted as he did. 

However, he had a right to walk away from a police officer unless 

the police officer had grounds to detain him. The circular 

nature of the majority's reasoning is obvious. If you walk away 

from a police officer, you can't be stopped except upon 

reasonable suspicion, but if you walk away, ipse dixit, you have 

given the officer reasonable suspicion. 

 In Smith v. Commonwealth, 12 Va. App. 1100, 407 S.E.2d 49 

(1991), a police officer saw Smith shortly after 10:00 p.m. on a 

playground that had a reputation as a place where drugs were 

prevalent. When Smith looked in the officer's direction, Smith 

suddenly placed something in his pants pocket. This Court held 

that the officer's observations of "suspicious" activity were not 

sufficient to warrant an investigatory stop. 12 Va. App. at 

1104, 407 S.E.2d at 52. See also Goodwin v. Commonwealth, 11 Va. 

App. 363, 367, 398 S.E.2d 690, 692 (1990); Moss v. Commonwealth, 

7 Va. App. 305, 308, 373 S.E.2d 170, 172 (1988). Likewise, the 

evidence in this record does not support the trial judge's 

finding that Gregory was lawfully stopped. I would hold that the 

trial judge erred in refusing to suppress the evidence. 

 Furthermore, the evidence in this case failed to prove 

beyond a reasonable doubt that Gregory intended to distribute the 
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cocaine that was seized. The Commonwealth's proof of intent to 

distribute was based primarily upon the following testimony of 

the arresting officer: 

 Q Seven individual baggies with how much 

weight? 

 A 3.4 grams. 

 Q Based upon your training and experience, 

is that method of packaging with that weight, 

is that consistent with personal use or 

distribution? 

 A Distribution. 

 Q You base that on your years of working in 

the property section and your training and 

experience as a police officer? 

 A Yes, sir. 

The officer admitted, however, that a user of cocaine could 

personally consume three grams of cocaine in two days. On crossexamination, the officer was unable to testify as to the usage of 

a typical addicted person. 

 Q Officer, based on your training and 

experience, how much crack cocaine could an 

individual smoke in a day if they're an 

addict? 

 A If they're an addict? 

 Q Yes. 

 A Well, I couldn't really go into as far as 

what personal consumption would be for an 

individual. 

 The relatively small quantity of cocaine warrants the 

inference that Gregory possessed it for his personal use. See

Dukes v. Commonwealth, 227 Va. 119, 122-23, 313 S.E.2d 382, 384 
- 19 - 

(1984). Moreover, no other evidence indicated an intent to 

distribute. The individual packages of cocaine were not unique. 

 "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." Id. at 123, 313 S.E.2d at 384. 

 For these reasons, I would also hold that the evidence 

failed to prove beyond a reasonable doubt that Gregory possessed 

the cocaine with intent to distribute. Thus, I would reverse the 

conviction.