COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Willis and Bray 

Argued at Richmond, Virginia 

MARK EDWARD ROBINSON 

 MEMORANDUM OPINION* BY 

v. Record No. 0572-95-3 JUDGE JAMES W. BENTON, JR. 

 FEBRUARY 20, 1996 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG 

Mosby G. Perrow, III, Judge 

 Elizabeth P. Murtagh, Assistant Public 

Defender (Office of the Public Defender, on 

brief), for appellant. 

 Brian Wainger, Assistant Attorney General 

(James S. Gilmore, III, Attorney General; 

Monica S. McElyea, Assistant Attorney 

General, on brief), for appellee. 

 Mark Edward Robinson was convicted of possessing cocaine 

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

He contends that the evidence was insufficient to prove beyond a 

reasonable doubt that he intended to distribute the cocaine. We 

agree and reverse the conviction. 

 The evidence proved that Investigator P. K. Morris of the 

Lynchburg Police Department received information that a man, who 

was standing in front of a building on Church Street, possessed 

cocaine. The report stated that the man was wearing a black 

t-shirt with "Jordan" written across it, blue jeans, and white 

tennis shoes. The investigator and three other officers drove to 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
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the area and observed Robinson fitting that description. As the 

officers watched, Robinson walked in and out of a building three 

times. After the officers drove towards Robinson and exited 

their vehicle, Robinson ran and threw a plastic bag to the 

ground. The investigator followed Robinson and arrested him. In 

a search of Robinson, the investigator recovered a razor blade 

from Robinson's wallet. The white residue on the razor blade was 

not identified. 

 One of the officers recovered the plastic bag and saw that 

it contained over forty white chunks. A laboratory analysis 

revealed that the bag contained 8.57 grams of cocaine. 

 The trial judge overruled Robinson's motion to strike the 

evidence. The trial judge ruled that the evidence was sufficient 

to convict Robinson of possession of cocaine with intent to 

distribute. Robinson appeals the finding of sufficient evidence 

to prove intent. 

 Where, as in this case, "evidence of an intent to distribute 

is entirely circumstantial, 'all necessary circumstances proved 

must be consistent with guilt and inconsistent with innocence and 

exclude every reasonable hypothesis of innocence.'" Morton v. 

Commonwealth, 13 Va. App. 6, 9, 408 S.E.2d 583, 584 (1991) 

(citation omitted). 

 When the proof of intent to distribute 

narcotics rests upon circumstantial evidence, 

the quantity which the defendant possesses is 

a circumstance to be considered. Indeed, 

quantity, alone, may be sufficient to 

establish such intent if it is greater than 

the supply ordinarily possessed for one's 
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personal use. However, possession of a small 

quantity creates an inference that the drug 

was for the personal use of the defendant. 

Dukes v. Commonwealth, 227 Va. 119, 122, 313 S.E.2d 382, 383 

(1984) (citation omitted). As in all criminal prosecutions, the 

burden is upon the Commonwealth to prove beyond a reasonable 

doubt the elements of the offense. In re Winship, 397 U.S. 358, 

364 (1970); Morton, 13 Va. App. at 11, 408 S.E.2d at 586. 

 In the present case, the evidence proved only the quantity 

of cocaine. No evidence established that the quantity was not 

consistent with personal use. No other evidence tended to prove 

intent to distribute. 

 The Commonwealth argues that the trial judge could have 

inferred intent to distribute from the proof that Robinson went 

into the building several times. We disagree. That conduct, 

even when combined with Robinson's possession of cocaine, 

provides no foundation from which the trial judge could have 

inferred beyond a reasonable doubt that Robinson was entering the 

building for the purpose of distributing cocaine. Accordingly, 

we reverse the conviction. 

 Reversed and remanded.