COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Elder and Bray 

Argued at Richmond, Virginia 

ANTONIO EWELL MORSE 

 MEMORANDUM OPINION* BY 

v. Record No. 2395-97-2 JUDGE LARRY G. ELDER 

 OCTOBER 20, 1998 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF THE CITY OF PETERSBURG 

Oliver A. Pollard, Jr., Judge 

 Mary Katherine Martin, Senior Assistant 

Public Defender (Office of the Public 

Defender, on brief), for appellant. 

 Donald E. Jeffrey, III, Assistant Attorney 

General (Mark L. Earley, Attorney General, on 

brief), for appellee. 

 Antonio Ewell Morse (appellant) appeals from his bench trial 

conviction for possession of cocaine with intent to distribute in 

violation of Code § 18.2-248. On appeal, he contends that the 

evidence was insufficient to prove he intended to distribute the 

cocaine. We disagree and affirm his conviction. 

 I. 

 FACTS 

 In the early morning hours of December 5, 1996, Officer 

Robert Elkins was working undercover to purchase drugs as part of 

a "buy-bust" operation. Elkins was driving around Petersburg in 

an unmarked car "to locate individuals that would flag [him] over 

 

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

designated for publication. 
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to attempt to buy cocaine from them." A man Officer Elkins knew 

as Kevin Montcastle flagged him down, and they discussed Elkins' 

obtaining crack cocaine. Montcastle agreed to try to get some 

cocaine for Elkins, "but [Montcastle] wanted a ride." For safety 

reasons, Elkins would not let Montcastle enter the vehicle, and 

"eventually [Montcastle] jumped on the hood of [Elkins'] car." 

 Elkins drove to another location, where Montcastle got off 

the hood and walked over to a group of people. Montcastle 

"singl[ed] out [appellant]," and the two moved a few feet from 

the rest of the group and talked for thirty to thirty-five 

seconds. Montcastle and appellant then approached Elkins' open, 

driver's-side window. Appellant reached into his pocket and 

pulled out a plastic cigarette box wrapper containing small bags 

of what appeared to be crack cocaine. Appellant's hand was 

"cupped," and "[t]he whole time he was walking up, he had his 

fingers stuck in the bag as if trying to pick [something] out of 

it." When appellant and Montcastle arrived at the window of the 

car, appellant asked to "see the money," and Elkins held a marked 

twenty-dollar bill in the open window. 

 [Appellant] picked out . . . one or two bags 

. . . [and] reached into [Elkins' car] window 

with [either one or two] zip bags of cocaine 

. . . between his fingers. As [appellant] 

touched his hand in there, there was a moment 

of hesitation with the exchange of the money 

for drugs. . . . [H]e continued to hold the 

drugs in his hand, pushed [Elkins'] hand 

away, [and] grabbed the $20 bill . . . . He 

put the money and cocaine back in his pocket 

and he said . . . get . . . out of here [in 

a] rather loud, angry tone and walked off. 
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Montcastle then became irate with appellant and spoke to him "in 

an angry tone." 

 Elkins radioed his back-up team and kept appellant in sight 

until the team arrived to take him into custody. Appellant 

attempted to flee, and immediately prior to being apprehended, 

appellant threw the money and cocaine, which he had been holding 

in his hand, to the ground. Investigator Young retrieved the 

money and drugs, which proved to be eight zip bags of cocaine 

totalling 0.58 grams. When Young searched appellant, he found no 

smoking device or any other paraphernalia tending to indicate the 

reasons for appellant's possession of the drugs. 

 In convicting appellant of possession with intent to 

distribute, the trial court made the following findings: 

 [T]he defendant was approached by Montcastle. 

 Montcastle knew that Elkins was looking to 

buy. Together they approached the car. 

Defendant extended his hand to take something 

from the cellophane wrapper, plastic wrapper. 

 He snatched the money out of Elkins' hand. 

Could be that he intended to do this all 

along. Could have been he intended to move 

to make a sale and then change[d] his mind in 

the middle of it. 

 In any event the fact that his contact 

person, Montcastle, was upset indicated he 

thought otherwise. There's no reason for him 

to approach [defendant] as long as the man 

was looking to make a buy. I find it too 

[much] of a leap . . . to decide that he's 

out there ripping off everybody. 

 Common sense is going to tell you he's 

not going to keep many customers. You're not 

[going] to make any customers if you're out 

there ripping everybody off. So I don't 

believe that. 
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 II. 

 ANALYSIS 

 Under familiar principles of appellate review, we examine 

the evidence in the light most favorable to the Commonwealth, 

granting to it all reasonable inferences fairly deducible 

therefrom. See Higginbotham v. Commonwealth, 216 Va. 349, 352, 

218 S.E.2d 534, 537 (1975). 

 The weight which should be given to evidence 

and whether the testimony of a witness is 

credible are questions which the fact finder 

must decide. However, whether a criminal 

conviction is supported by evidence 

sufficient to prove guilt beyond a reasonable 

doubt is not a question of fact but one of 

law. 

Bridgeman v. Commonwealth, 3 Va. App. 523, 528, 351 S.E.2d 598, 

601-02 (1986). 

 Circumstantial evidence may establish the elements of a 

crime, provided it excludes every reasonable hypothesis of 

innocence. See, e.g., Tucker v. Commonwealth, 18 Va. App. 141, 

143, 442 S.E.2d 419, 420 (1994). However, "the Commonwealth need 

only exclude reasonable hypotheses of innocence that flow from 

the evidence, not those that spring from the imagination of the 

defendant." Hamilton v. Commonwealth, 16 Va. App. 751, 755, 433 

S.E.2d 27, 29 (1993). Whether a hypothesis of innocence is 

reasonable is a question of fact, see Cantrell v. Commonwealth, 7 

Va. App. 269, 290, 373 S.E.2d 328, 339 (1988), and a finding of 

fact made by the trial court is binding on appeal unless plainly 

wrong, see Higginbotham, 216 Va. at 352, 218 S.E.2d at 537. 
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"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). 

 The circumstantial evidence in this case, viewed in the 

light most favorable to the Commonwealth, was sufficient to 

prove, beyond a reasonable doubt, that appellant intended to 

distribute cocaine to Officer Elkins. After Montcastle agreed to 

help Elkins purchase crack cocaine, Elkins drove Montcastle to 

another location where he saw appellant. Although appellant was 

part of a group of people, Montcastle immediately "single[d] 

[appellant] out." The two separated from the rest of the group 

and talked for about thirty seconds. Appellant then approached 

Elkins' car while reaching into a cellophane cigarette wrapper 

containing smaller "zip" bags of cocaine as if trying to retrieve 

one or two of the "zip" bags. Appellant asked to see Elkins' 

money, and when Elkins held a twenty-dollar bill in the window, 

appellant had the opportunity to take the money and flee. 

However, appellant then actually "picked out . . . one or two 

bags" of cocaine, reached into Elkins' window with the cocaine in 

his hand, and "hesitat[ed]" for a moment before grabbing Elkins' 

money and putting it and the cocaine in his pocket. 

 This evidence, combined with appellant's possession of eight 

bags of cocaine and Montcastle's anger when appellant refused to 

sell Elkins the cocaine, supports the inference that appellant 

had told Montcastle he would sell cocaine to Elkins. Moreover, 
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the evidence proved that appellant retrieved a package of cocaine 

from a larger bag, displayed the package of cocaine, and asked to 

see Elkins' money. This conduct was sufficient to prove that 

appellant was offering the cocaine to consummate the transaction. 

 The fact that appellant did not complete the transaction, but, 

instead took Elkins' money, does not diminish the proof that 

appellant offered to sell the cocaine. This was sufficient 

circumstantial evidence to prove appellant possessed the cocaine 

with the intent to distribute it. 

 For these reasons, we affirm appellant's conviction. 

 Affirmed.