COURT OF APPEALS OF VIRGINIA

Present: Judges Russell, Ortiz and Raphael

Argued at Richmond, Virginia

TIMOTHY LAMONT JOHNSON

MEMORANDUM OPINION* BY

v. Record No. 0704-21-2 JUDGE WESLEY G. RUSSELL, JR.

MAY 17, 2022

COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND

Margaret P. Spencer, Judge Designate

Daniel W. Hall (Law Office of Daniel W. Hall, on brief), for 

appellant.

Stephen J. Sovinsky, Assistant Attorney General (Jason S. Miyares, 

Attorney General, on brief), for appellee.

Timothy Lamont Johnson appeals his conviction in a bench trial of possession with intent to 

distribute more than five pounds of marijuana in violation of Code § 18.2-248.1. Johnson does not 

challenge that he possessed the marijuana, but contends that the evidence failed to prove he 

intended to distribute it. Johnson also asserts that the trial court erred in rejecting his argument that 

he should receive a reduced sentence because any distribution was as an accommodation. Finding 

no reversible error, we affirm.

BACKGROUND

“On appeal, we review the evidence in the ‘light most favorable’ to the Commonwealth, 

the prevailing party in the trial court.” Yerling v. Commonwealth, 71 Va. App. 527, 530 (2020) 

(quoting Vasquez v. Commonwealth, 291 Va. 232, 236 (2016)). This standard requires us to 

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

UNPUBLISHED
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“discard the evidence of the accused in conflict with that of the Commonwealth, and regard as 

true all the credible evidence favorable to the Commonwealth and all fair inferences to be drawn 

[from that evidence].” Bagley v. Commonwealth, 73 Va. App. 1, 26 (2021) (alteration in 

original) (quoting Cooper v. Commonwealth, 54 Va. App. 558, 562 (2009)).

In the spring of 2017, United States Postal Inspector Dalton learned of “a network of

parcels [being sent] from California” to “about 15 addresses in the Richmond area.” In April 

2017, Dalton intercepted a package mailed to 1709 North 23rd Street in Richmond and found 

contraband. On July 12, 2017, Dalton targeted two “large brown boxes” addressed to two separate 

addresses in Richmond, namely the 23rd Street address and 1322 Coalter Street. Dalton 

photographed both boxes and notified Blaine Davis of the Multijurisdictional Interdiction Task 

Force in Chesterfield, Virginia. The packages then went out for “normal delivery[.]”

Davis gathered a team to conduct surveillance at both addresses during the package 

deliveries. Johnson arrived at the 23rd Street address in a silver car, and the U.S. Postal Service

delivered one of the boxes to that location a short time later. Johnson retrieved the box from the 

porch, put it in the trunk of the car, and then drove directly to the apartment on Coalter Street. 

While Johnson was en route, the second parcel was delivered to the Coalter Street address. When 

Johnson arrived, a second individual exited the apartment with the parcel and placed it in the trunk 

of Johnson’s car. Johnson and the second individual then left the area in the car. Law enforcement 

officers followed them to an apartment complex on West Broad Street in Richmond. The two men 

retrieved the packages from the trunk and entered the building. After about fifteen minutes, the two 

men exited the building with a woman but without the packages. They drove for about ten to fifteen

minutes, let the woman out of the car, and then returned to the Broad Street location. Less than 

forty minutes later, Johnson and the second individual exited the apartment with the packages. 

Johnson tossed one of the boxes into a nearby trash receptacle, while the second individual put his 
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box in the trunk of the car. At that point, Davis and his team approached the two men and detained 

them. 

Davis and his team later obtained and executed a search warrant authorizing the search of 

the Broad Street apartment and the silver car. Chesterfield County Police Detective T. Kline 

collected the evidence. In the bedroom, Kline collected a .223 caliber semi-automatic rifle, 

forty-five rounds of ammunition, loaded magazines containing fifty-six rounds of .223 ammunition, 

and a gold can containing marijuana in a vacuum-sealed bag. In the kitchen, Kline found a digital 

scale, a glass jar containing marijuana, a vacuum sealer, and a grinder. Paperwork with Johnson’s 

name on it was located in various places throughout the apartment and in the car. Six sealed gold 

cans containing marijuana were also found in Johnson’s trunk in a cardboard box, along with 

shipping labels and five additional bags of marijuana. 

Richmond Police Officer Philips testified as an expert in the area of street level drug 

distribution. He opined that the nearly ten pounds of marijuana recovered from Johnson’s 

apartment and car were inconsistent with personal use. He explained that an average marijuana user 

“might smoke a gram a day” and a heavy user might smoke up to three and a half grams a day. He 

calculated that it would take Johnson “almost three-and-a-half years” to smoke the amount of 

marijuana he had in his possession. When asked if Johnson might have purchased the marijuana 

“wholesale” for personal use, Philips responded, “it[s] not possible . . . it is not even close to 

personal use.” Philips also considered the presence of the firearm in the residence, because it “is 

common for drug traffickers to have a firearm to protect themselves and their proceeds,” and he 

found the “vacuum sealing [bags] and vacuum sealer” significant because “larger marijuana

dealers” often seal the marijuana to keep it fresh and to “keep[] the potency strong.” Finally, Philips 

explained that it is “common for drug dealers to have a digital scale on hand so that they can weigh 
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their drugs” when they are “prepacking for distribution to determine the right weight for their

customers.” The fact that no money or baggies were found did not alter Philips’ opinion.

After a motion to strike and closing arguments, the trial court found Johnson guilty of 

possession with intent to distribute more than five pounds of marijuana. At his sentencing hearing, 

Johnson asked the trial court to find him guilty of possession with intent to distribute as an 

accommodation. In support of his motion, Johnson proffered that there was no evidence a sale took 

place or “even a distribution of marijuana.” He emphasized that no currency was found on him, in 

his vehicle, or in his house; there also was no evidence of “buy sheets,” text messages, or phone 

records memorializing marijuana sales. For these reasons, Johnson asked the trial court to find that 

there was no evidence of a “commercial transaction” or sale for profit. The trial court rejected 

Johnson’s accommodation argument.

This appeal followed.

ANALYSIS

I. Standard of review

“When reviewing the sufficiency of the evidence, ‘[t]he judgment of the trial court is 

presumed correct and will not be disturbed unless it is plainly wrong or without evidence to support 

it.’” McGowan v. Commonwealth, 72 Va. App. 513, 521 (2020) (alteration in original) (quoting 

Smith v. Commonwealth, 296 Va. 450, 460 (2018)). “In such cases, ‘[t]he Court does not ask itself 

whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.’” Id.

(alteration in original) (quoting Secret v. Commonwealth, 296 Va. 204, 228 (2018)). “Rather, the 

relevant question is whether ‘any rational trier of fact could have found the essential elements of the 

crime beyond a reasonable doubt.’” Vasquez, 291 Va. at 248 (quoting Williams v. Commonwealth, 

278 Va. 190, 193 (2009)). “If there is evidentiary support for the conviction, ‘the reviewing court is 

not permitted to substitute its own judgment, even if its opinion might differ from the conclusions 
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reached by the finder of fact at the trial.’” McGowan, 72 Va. App. at 521 (quoting Chavez v. 

Commonwealth, 69 Va. App. 149, 161 (2018)).

We owe similar deference to the trial court’s resolution of all questions of fact. Goodwin v. 

Commonwealth, 71 Va. App. 125, 136 (2019) (noting an appellate court is bound by the trial 

court’s findings of fact unless the findings are plainly wrong or have no support in the evidence). 

Johnson’s “claim of accommodation, at most, raise[s] an issue of fact to be resolved by the fact 

finder.” Foster v. Commonwealth, 38 Va. App. 549, 557 (2002).

II. Sufficiency of the evidence

Johnson challenges the sufficiency of the evidence to convict him of possessing the 

marijuana with the intent to distribute it. Conceding he possessed the marijuana police recovered,

he asserts that the evidence did not exclude the reasonable hypothesis of innocence that he 

possessed the marijuana for personal use. We disagree.

“Absent a direct admission by the defendant, intent to distribute must necessarily be 

proved by circumstantial evidence.” Cole v. Commonwealth, 294 Va. 342, 361 (2017) (quoting 

Williams, 278 Va. at 194).

Circumstantial evidence that may be probative of an intent to 

distribute a controlled substance includes: “the quantity of the drugs 

seized, the manner in which they are packaged, and the presence of 

an unusual amount of cash, equipment related to drug distribution, or 

firearms,” and whether the quantity of drugs was “inconsistent with 

personal use.”

Id. (quoting McCain v. Commonwealth, 261 Va. 483, 493 (2001)). “Possession of a controlled 

substance in ‘a quantity greater than that ordinarily possessed for one’s personal use may be 

sufficient to establish an intent to distribute it.’” Hargrove v. Commonwealth, 53 Va. App. 545, 558 

(2009) (quoting Williams v. Commonwealth, 52 Va. App. 194, 202 (2008), aff’d, 278 Va. 190 

(2009)). “A trial court may also consider ‘expert testimony, usually that of a police officer, . . . in 
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determining whether drugs were possessed with intent to distribute.’” Id. (alteration in original) 

(quoting Askew v. Commonwealth, 40 Va. App. 104, 110 (2003)).

Considered in the light most favorable to the Commonwealth, the evidence in this case

sufficiently established Johnson’s intent to distribute the marijuana. Johnson possessed nearly ten 

pounds of marijuana. Expert testimony established that it would take Johnson “almost 

three-and-a-half years” to smoke the amount of marijuana he had in his possession, and when asked 

if Johnson simply might have purchased the marijuana “wholesale” for personal use, Philips 

responded, “it[s] not possible . . . it is not even close to personal use.” Given that “[q]uantity, alone, 

may be sufficient to establish” intent to distribute “if it is greater than the supply ordinarily 

possessed for one’s personal use,” Cole, 294 Va. at 361-62, the amount of marijuana, in and of 

itself, was sufficient to establish Johnson’s intent to distribute it. Nevertheless, the record contains 

additional indices of Johnson’s intent to distribute. He also possessed a semi-automatic rifle, 

ammunition, a digital scale, a vacuum sealer, and a grinder. Philips’ expert testimony established 

that such items are probative of the intent to distribute. In addition, the absence of any personal 

smoking device or other “paraphernalia suggestive of personal use . . . [is] regularly recognized as 

[a] factor[ ] indicating an intent to distribute.” Askew, 40 Va. App. at 108 (alterations in original) 

(quoting Welshman v. Commonwealth, 28 Va. App. 20, 37 (1998) (en banc)). Thus, the totality of 

the evidence supports the trial court’s finding that Johnson intended to distribute the large quantity 

of marijuana he possessed.

Johnson’s suggestion that the evidence did not exclude the theory that he possessed the 

marijuana for “alternative consumption methods” like “alcohol tinctures” or edible brownies is 

unavailing. Although Johnson’s counsel raised the possibility of alternative such uses of marijuana 

during his cross-examination of Philips, little was offered to substantiate even the possibility of such 

uses here. No evidence of brownie baking or creating alcohol tinctures was introduced. No 
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evidence suggested that Johnson even possessed the equipment or other ingredients needed to make 

the hypothetical brownies or alcohol tinctures. “It is axiomatic that ‘the Commonwealth need only 

exclude reasonable hypotheses that flow from the evidence.’” Holloway v. Commonwealth, 57 

Va. App. 658, 668 (2011) (en banc) (quoting Hamilton v. Commonwealth, 16 Va. App. 751, 755 

(1993)). “It is not our task to engage in a game of ‘what if,’ or to attempt to create theories that the 

evidence does not support. This Court should ‘not base its holdings on “what ifs.”’” Id. at 669 

(quoting Newman v. State, 845 A.2d 71, 99 (Md. Ct. Spec. App. 2002), rev’d on other grounds, 863 

A.2d 321 (Md. 2004)). “Were we to do so there is no limit to the theories that may arise from an 

inventive mind’s eye[.]” Id. Other than the mere existence of the marijuana and counsel’s 

questions, nothing even potentially supports the theory of possession for personal use by means of 

alternative consumption methods. Accordingly, the trial court reasonably rejected such a claim.

In this case, the evidence was sufficient to prove beyond a reasonable doubt that Johnson

possessed the marijuana with the intent to distribute it. Thus, we will not disturb the trial court’s 

ruling on appeal.

III. Accommodation

Johnson also contends that the trial court erred in rejecting his argument that he engaged in 

the distribution of marijuana as an accommodation. He argues that the “deficiencies in proof of 

intent to distribute for profit,” such as a lack of packaging, money, ledgers, or the conduct of sales, 

proved only that he possessed the marijuana to share it, “and not as part of a commercial operation.” 

We disagree.

“[I]t is unlawful for any person to sell, give, distribute or possess with intent to sell, give, or 

distribute marijuana.” Code § 18.2-248.1. However, “[i]f such person proves that he gave, 

distributed, or possessed with intent to give or distribute marijuana only as an accommodation to 

another individual and not with intent to profit thereby from any consideration received or expected
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. . . he is guilty of a Class 1 misdemeanor.” Code § 18.2-248.1(a). An accommodation defense 

“provides for mitigation of punishment where one convicted of possession with intent to distribute 

is found not to be a dealer in drugs, but one ‘motivated by a desire to accommodate a friend without 

any intent to profit or to induce or to encourage the use of drugs.’” Barlow v. Commonwealth, 26 

Va. App. 421, 430 (1998) (quoting Stillwell v. Commonwealth, 219 Va. 214, 219-20 (1978)). “An 

accommodation defense is a defense that pertains only to the penalty imposed on one found guilty 

of drug distribution.” Porter v. Commonwealth, 66 Va. App. 302, 308-09 (2016) (emphasis added)

(quoting Foster, 38 Va. App. at 555). “The Supreme Court has interpreted the term ‘profit’ to mean 

‘a commercial transaction in which there is a consideration involved.’” Id. at 308 (quoting King v. 

Commonwealth, 219 Va. 171, 174 (1978)). Thus, “[a] defendant charged with distribution who 

defends on the ground of accommodation ‘is required to produce some evidence which satisfies the 

trier of the facts that his distribution was for accommodation.’” Id. (quoting Stillwell, 219 Va. at

225).

The record fails to support Johnson’s assertion that he possessed the marijuana with intent to 

distribute as an accommodation. He does not argue that there is any affirmative evidence that he 

distributed marijuana as an accommodation, but rather, recycles the arguments he claims 

demonstrated that he did not distribute marijuana in the first place. Specifically, he asserts that 

[f]or the reasons argued in Argument I [regarding Johnson’s intent 

to distribute] above, even if the evidence is sufficient to prove that 

he had the intent to distribute marijuana and not merely use it 

himself, the deficiencies in proof of intent to distribute for profit, 

such as a lack of packaging, money, ledgers, or the conduct of 

sales, themselves established by a preponderance of the evidence 

that Johnson possessed it to share, and not as part of a commercial 

operation.

Although these “missing” items often are found in relation to drug distribution activities, 

their absence in a particular case does not compel the conclusion that a defendant does not harbor an 

intent to distribute or that any distribution is not part of a commercial enterprise. Much as the trial 
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court was free to weigh the absence of these particular pieces of potential evidence against the 

evidence that was introduced and conclude that Johnson harbored an intent to distribute marijuana, 

it was free to weigh the evidence and conclude that the evidence did not support his accommodation 

defense.

On these facts, the trial court did not err in finding that the evidence did not support 

Johnson’s claim that he possessed the marijuana with the intent to distribute it only as an 

accommodation.

CONCLUSION

For the foregoing reasons, the judgment of the trial court is affirmed.

Affirmed.