COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fe lton, Judges Frank and Powell Argued at Chesapeake, Virginia

MARK ALLEN CRATCH, JR. MEMORANDUM OPINION * BY v. Record No. 2892-08-1 JUDGE ROBERT P. FRANK SEPTEMBER 29, 2009 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK Norman A. Thomas, Judge J. Barry McCracken, Assistant Public Defender (Office of the Public Defender, on brief), for appellant. Josephine F. Whalen, Assistan t Attorney Genera l II (William C. Mims, Attorney General, on brief), for appellee.
Mark Allen Cratch, Jr., appella nt, was convicted, in a bench trial, of posse ssion with the intent to distribute of more than one-half ounce but less than five pounds of marijuana, in violation of Code § 18.2-248.1(a)(2). On appeal, he contends the tr ial court erred in finding the evidence sufficient to convict. Specifically, he maintains the evidence did not prove he intended to distribute more than one-half ounce of marijuana. 1 For the reasons stated, we affirm the trial

court. BACKGROUND On July 18, 2008, Norfolk Police Officer Kimberly Coles was working undercover posing as a prostitute. Coles a pproached appellant’s car and obs erved appellant smoking a large

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.

1 Appellant does not contest he possessed ove r one-half ounce of ma rijuana or that he intended to distribute some amount of that drug.- 2 - marijuana cigarette commonly referred to as a “b lunt.” Coles invited appellant and his passenger to her motel room. Appellant agreed and indi cated they would bring marijuana with them. Appellant said “we’re going to smoke it.” Coles inquired what appellant wa nted in exchange for the marijuana, and they agreed to exchange th e marijuana for sex. The officer testified it is common for prostitutes to exchange drugs for sex. Appellant told Coles he had “the weed” with him and they would smoke it. Appellant and his passenger entered the mote l room and were arrested on prostitution charges. Police searched appell ant and recovered a clear plastic baggie in appellant’s pocket that contained 45.2 grams (1.59 ounces) of marijuana with a street value of $480. The police did not find the marijuana cigarette on appellant. Officer R.W. Gillespie, who qualified as an expert in the distribution of illegal drugs, testified, without objection, that the marijuana seized was inc onsistent with personal use. He based this opinion on the marijuana being offe red in exchange for sex and the amount of marijuana seized. He explained that a user would typically ca rry “under a half an ounce, under 14 grams.” Gillespie testified there was no set rate for a prostitute’s services. Some prostitutes will perform for a nickel bag of marijuana ($5), others have requested fees as high as $1,000, depending on the individual circumstances. Gi llespie estimated it would probably take more than “a couple hours” to consum e the bag of marijuana. In his motion to strike, appellant argued no evidence indicated that he intended to give the prostitute over one-half ounce of marijuana for her sexual servic es in that the only amount of marijuana discussed was smoking the “blunt.” The Commonwealth’s attorney responded by pointing to Officer Gillespie’s expert testimony that the qua ntity appellant possessed was inconsistent with personal use.- 3 - The trial court concluded that pursuant to Code § 18.2-248.1(a)(2), the Commonwealth must prove: (1) appellant possessed the marijuan a found on his person; (2) that he had the intent to distribute that marijuana, and (3) the wei ght of the marijuana (one-half ounce to five pounds) places him in the category with which he is char ged, i.e., subsection (a)(2) of Code § 18.2-248.1. In finding appellant guilty, the court opined that “[appellant] was intending to have sexual intercourse . . . in exchange for some portion of marijuana. Whether it was all of it or less than all of it, it’s simply not in evidence.” The court found appellant possessed approximately forty-five grams with intent to distribute but the Commonwealth need not prove the appellant intended to “distribute every last gram or every ounce of it either in this transaction or other transactions.” This appeal follows.
ANALYSIS Appellant contends the evid ence was insufficient to prov e he intended to distribute more than one-half ounce of marijuana. He r easons that the statute requires that one must intend to distribute more than one-half ounce to be guilty of this offense. The Commonwealth agrees, but contends the evidence was sufficient to prove appellant intended to distribute more than one-half ounce of marijuana. Appellant premises his argument on the trial court’s statement that appellant only need have an intent to distribute some portion of the marijuana. He further focuses on Gillespie’s testimony that prostitutes will perform their services for we ll under the $480 value of the 1.59 ounces worth of marijuana found on him. The Commonwealth responds by pointing to O fficer Gillespie’s expert testimony that the 1.59 ounces of marijuana, coupled with the facts of the prostitution activity, was inconsistent with personal use.Faced with a challenge to the sufficiency of the evidence, we must give trial courts and juri es the wide discretion to which a living record, as distinguished fr om a printed record, logically entitles them. The living record contains many guideposts to the truth which are not in the printe d record; not having seen them ourselves, we should give great weig ht to the conclusions of those who have seen and heard them. Bradley v. Commonwealth , 196 Va. 1126, 1136, 86 S.E.2d 828, 834 (1955). In bench trials, the “trial judge’s major role is the determination of fact, and with experience in fulfilling that role comes expertise.” Haskins v. Commonwealth , 44 Va. App. 1, 11, 602 S.E.2d 402, 407 (2004) (citation omitted). Consequently, a reviewing court does not “ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.” Jackson v. Virginia , 443 U.S. 307, 318-19 (1 979) (emphasis in original and citati on omitted). Instea d, we ask only “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the esse ntial elements of the cr ime beyond a reasonable doubt.” Maxwell v. Commonwealth , 275 Va. 437, 442, 657 S.E. 2d 499, 502 (2008) (quoting Jackson , 443 U.S. at 319) (emphasis in original). These principl es recognize th at appellate courts are “not permitted to reweigh the evidence,” Nusbaum v. Berlin , 273 Va. 385, 408, 641 S.E.2d 494, 507 (2 007), because we have no author ity “to preside de novo over a sec ond trial,” Haskins , 44 Va. App. at 11, 602 S.E.2d at 407. The law is well settled as to the proof required to show appellant possessed drugs with the intent to distribute. “Because direct proof of intent is often impossi ble, it must be shown by circumstantial evidence.” Servis v. Commonwealth , 6 Va. App. 507, 524, 371 S.E.2d 156, 165 (1988). “If evidence of intent is wholly circumstantial, ‘all necessary circumstances proved must be consistent wi th guilt and inconsis tent with innocence and exclude every reasonable hypothesis of innocence.’” Dukes v. Commonwealth , 227 Va. 119, 122, 313 S.E.2d - 4 -- 5 - 382, 383 (1984 ) (quoting Inge v. Commonwealth , 217 Va. 360, 366, 228 S.E.2d 563, 567 (1976)). Circumstantial proof of a defendant’s intent includ es the quantity of the drugs discovered, the packaging of the drugs, and the pr esence or absence of drug paraphernalia. Servis , 6 Va. App. at 524-25, 371 S.E.2d at 165. Expert test imony, usually that of a police officer familiar with narc otics, is routinely offe red to prove the significance of the weight and packaging of drugs regarding whet her it is for personal use. Shackleford v. Commonwealth , 32 Va. App. 307, 326-27, 5 28 S.E.2d 123, 133 (2000). The question of how much marijuana appellant intended to give the prostitute is not the determinative factor, although both parties, below and on appeal, went to great lengths to argue this point. The expert witnes s considered the quan tity of drugs in concluding appellant’s possession of 1.59 ounc es of marijuana was incons istent with personal use. He testif ied that a typical marijuana user would carry less than one-half ounce. See Hunter v. Commonwealth , 213 Va. 569, 570, 193 S.E. 2d 779, 780 (1973) (holding that proof th at quantity possessed exceeds that normally intended fo r personal use, withou t more, is sufficient to show intent to distribute); Welshman v. Commonwealth , 28 Va. App. 20, 37, 5 02 S.E.2d 122, 130 (1998) ( en banc ) (finding possession of a quantity greater than that ordinarily poss essed for personal use may be sufficient to establish an intent to distribute). In support of his opinio n, Gillespie also consid ered that appellant did, in fact, intend to distribute some marijuana to th e prostitute in exchange for se x. However, we need not base our opinion on whether appe llant intended to give the prostitu te more than on e-half ounce of marijuana because we have concluded that, base d on Gillespie’s expert opinion, appellant possessed the entire amount of marijuana with the intent to distribute. 2

2 It is important to note that the offens e we address is possession with intent to distribute, not distribution of more than one-half ounce to the prostitute.- 6 - On appeal, both parties ad dressed whether the Comm onwealth’s evidence was sufficient to establish appellant’ s intent to distribute a specific amount of mari juana, namely, more than one-half ounce. Ne ither party challenged the trial court’s determination that the Commonwealth was required first to prove appellant had the intent to distribute only a portion of the marijuana, then prove that the total quantity appellant possessed exceeded one-half ounce. While we acknowledge th at the trial court ruled that it was not necessary to prove appellant possessed the marijuana with the specif ic intent to distribute more than one-half ounce to the prostitute, we affirm the trial court because it re ached the correc t conclusion but the wrong reason was gi ven. “An appellate co urt may affirm the judg ment of a trial court when it has reached the right re sult for the wrong reason.” Driscoll v. Commonwealth , 14 Va. App. 449, 452, 417 S.E.2d 3 12, 313 (1992). On appeal, we may affirm on grounds different from those on which the trial court based its de cision so long as the issue was addressed at trial, ev idence exists in the r ecord to support those alternate grounds, the trial judge’s decision does not reject those grounds, and no further factual reso lution is necessary to support the decision. Debroux v. Commonwealth , 32 Va. App. 364, 371-72, 528 S.E.2d 151, 155, aff’d on reh’g en banc , 34 Va. App. 72, 537 S.E.2d 630 (2000). At trial, the Commonwealth’s attorney argue d that Officer Gillespie’s expert testimony proved that appellant possessed th e entire amount of mar ijuana with the intent to distribute. Thus, because the prosecutor argued this issue to the trial court, we find the trial court was right for the wrong reason. We find the evidence sufficient to prove appellant possessed over one-half ounce of marijuana with the intent to distribute. We therefore affirm the trial court. Affirmed.