COURT OF APPEALS OF VIRGINIA

Present: Judges Huff, Athey and White

Argued by videoconference 

THOMAS JOE BRAXTON, III

MEMORANDUM OPINION* BY

v. Record No. 0179-22-3 JUDGE GLEN A. HUFF

FEBRUARY 28, 2023

COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF HENRY COUNTY

David V. Williams, Judge

Matthew S.T. Clark for appellant.

Matthew P. Dullaghan, Senior Assistant Attorney General 

(Jason S. Miyares, Attorney General, on brief), for appellee.

Following a bench trial, the Henry County Circuit Court (the “trial court”) convicted 

Thomas Joe Braxton, III (“appellant”) of attempted capital murder of a law enforcement officer, 

in violation of Code §§ 18.2-31(6) and 18.2-26, use of a firearm in the commission of a felony 

(second or subsequent offense), in violation of Code § 18.2-53.1, and possession of heroin with 

the intent to distribute, in violation of Code § 18.2-248(C). On appeal, appellant challenges the 

sufficiency of the evidence only as to his convictions for attempted capital murder and 

possession of heroin with the intent to distribute. He argues the evidence was insufficient to 

prove the requisite element of intent for each of those offenses. This Court disagrees and affirms

appellant’s convictions.

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

UNPUBLISHED
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I. BACKGROUND

This Court recounts the facts “in the light most favorable to the Commonwealth, the 

prevailing party at trial.” Poole v. Commonwealth, 73 Va. App. 357, 360 (2021) (quoting Gerald 

v. Commonwealth, 295 Va. 469, 472 (2018)). In doing so, this Court discards any evidence 

presented by appellant that conflicts with the Commonwealth’s evidence and regards as true all 

credible evidence favorable to the Commonwealth and all reasonable inferences drawn 

therefrom. Gerald, 295 Va. at 473; Parks v. Commonwealth, 221 Va. 492, 498 (1980).

On January 1, 2020, at approximately 9:38 p.m., appellant drove a black Toyota pickup 

truck past the stationary patrol cars of on-duty police officers Michael Panos and Jason Griffith. 

As appellant passed by, Officer Panos saw that the tag light on the pickup truck was not 

illuminated.1 He began following appellant’s vehicle and attempted to initiate a traffic stop. But 

as soon as Officer Panos activated the patrol car’s lights and siren, appellant accelerated instead 

of slowing down. The ensuing vehicle chase was captured by the dash camera in the patrol car.

During the pursuit, appellant’s vehicle swerved around multiple other cars travelling in 

the same direction and crossed over into the oncoming traffic lane when clear of cars. Despite 

traveling at a speed in significant excess of the speed limit and weaving between lanes, appellant 

did not strike any other vehicles or objects he passed, even when driving across a narrow bridge 

and making a right-hand turn past a minivan at a stop sign. Appellant eventually entered the 

parking lot of an apartment complex—only a few houses away from where he lived—in Henry 

County. Without parking, appellant jumped out of the driver’s side door and began fleeing on 

1 On the date of the offense, failure to have the rear license plate illuminated was a 

violation of Code § 46-1013(B) and a valid reason for the police to initiate a traffic stop. 

Subsequently, on July 1, 2020, the General Assembly prohibited traffic stops based on this 

violation. 2020 Va. Acts Spec. Sess. I ch. 45, 51.
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foot. The unoccupied truck continued to roll forward slowly before veering off to the right into a 

wooded area.

Officer Panos continued to chase appellant on foot. As he rounded the corner of one of 

the houses, he saw appellant running across an open grassy area towards a metal chain link 

fence. Officer Panos estimated the height of the fence at seven-and-a-half feet. He heard the 

fence rattle and saw appellant stop, crouch down, and then stand up again, turning around to face 

Officer Panos who was approximately 15 to 20 feet away from appellant.

Appellant began shooting directly at Officer Panos, who heard a loud “pop,” saw a 

“muzzle flash,” and saw the ground in front of him explode with debris that struck his vest. 

Before he could unholster his own weapon, Officer Panos “heard two more pops and saw a 

muzzle flash.” As Officer Griffith rounded the corner, he heard a gunshot and saw a muzzle 

flash from where appellant was standing near the fence. Both officers then began shooting at 

appellant. 

During this exchange, a bullet from appellant’s firearm struck Officer Panos in the left 

arm just above his elbow and another bullet grazed the top of his head. Appellant was struck 

with bullets from the officers’ weapons, after which Officer Griffith was able to handcuff him 

and secure his firearm. Officer Griffith then started tending to Officer Panos’ wounds. The foot 

chase and shootout were recorded by both officers’ body-worn cameras.

Shortly thereafter, other police officers and agents arrived in response to radio calls of 

“shots fired” and “officer down.” Officer Griffith assisted those officers in collecting evidence 

from the scene, including 29 shell casings, appellant’s firearm—a Taurus .45 caliber, 

semi-automatic pistol—and both his and Officer Panos’ firearms. At trial, Special Agent Billy 

McCraw of the Virginia State Police testified that nine of the shell casings he recovered were 

“.45 caliber cartridge casing[s]” and testing confirmed they had been fired from appellant’s gun.
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Special Agent McCraw also recovered a “pair of gray cargo pants” that had been cut off 

appellant at the scene in order to treat his gunshot wounds. Inside a pocket of those pants was a 

“Crown Royal bag” containing “nine Ziploc bags” of “off-white rocks” which lab results 

confirmed as heroin. In the same pocket, next to the Crown Royal bag, was a folded-over 

“bundle” of U.S. currency totaling $363 in paper bills. Appellant’s wallet contained 16 

one-dollar bills and three pennies.

While the police were tending Officer Panos’ and appellant’s wounds, appellant’s wife 

arrived on scene from their home directly behind the chain link fence. Upon her arrival, 

appellant started denying that he had a gun and that it was two other “black guys” who were 

getting away because the police had wrongfully arrested appellant. Subsequently, appellant’s 

wife told one of the officers that appellant had been with two of his friends earlier that night and 

that he was not supposed to be the one driving the truck. Yet, Officers Panos and Griffith had 

observed appellant driving the black pickup truck and saw no other persons either in the truck or 

with appellant when he ran to the fence and began shooting.

Appellant was airlifted to a hospital and treated for his injuries, namely, gunshot wounds 

to his thighs and buttocks. Samples of his blood and urine were tested for medical purposes. A 

drug test of the urine yielded positive results for amphetamine, cannabinoid, cocaine, opiates, 

buprenorphine, and 6-acetylmorphine.2 At trial, both parties stipulated that one of the substances 

2 Appellant’s hospital records include the following note in connection with the drug 

testing of his urine:

This drug testing is for medical treatment only. The results are 

presumptive, based only on screening methods, and they have not 

been confirmed by a second independent chemical method. 

Analysis was performed as non-forensic testing and these results 

should be used only by healthcare providers to render diagnosis or 

treatment, or to monitor progress of medical conditions.
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for which appellant tested positive—“referred to as 6-Methylmorphine”—is “a metabolite of 

heroin.” 

On January 17, 2021—more than two weeks after the shooting and appellant’s arrest—

Special Agents Richard Conley and Matt Wade of the Virginia State Police interviewed 

appellant at the Henry County Sheriff’s Office about the events of January 1.3 After waiving his 

Miranda rights, appellant initially claimed that he was with a “buddy”—Posey Hairston—on the 

evening of January 1, 2020, and that it was Posey who drove the truck to the apartment complex 

because appellant was “too fucked up” on heroin and crystal meth to drive.4 He also claimed 

that both he and Posey jumped out of the driver’s side door of the truck at the same time and ran 

together from the police. He described Posey as a black male about the same height and age as 

appellant.

Appellant stated he heard shots fired while he and Posey were running but insisted he did 

not shoot the gun at all, and it was Posey who shot at the police. Although appellant advised the 

agents that Posey’s fingerprints would not be on the gun because Posey was wearing gloves, he 

also admitted that his fingerprints were likely on the gun and magazine but not the bullets 

because he had touched the gun while in the truck.

When Special Agent Conley explained that the video evidence contradicted appellant’s 

story and suggested that appellant’s actions were the result of him being under the influence of 

drugs, appellant claimed he “d[id]n’t remember none of that shit.” He continued to assert that he 

didn’t remember driving the truck or shooting at the police even when Special Agent Conley 

3 A written summary of that two-and-a-half hour interview was submitted to the court 

upon stipulation by both parties that it was complete and accurate. It was later introduced into 

evidence without objection.

4 Appellant also stated that the truck belonged to his friend Brent Wagoner who had let 

him borrow the truck on the evening of January 1, 2020. In fact, Brent Wagoner had reported 

the truck stolen.
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asked how he could remember the alleged details about Posey but not his own actions recorded 

on video.

Eventually, appellant asked the agents how he could “get outta this mess,” and they 

advised him to simply tell the truth. When the agents told appellant they knew he had not been 

telling them the truth at the start of the interview, appellant responded “I was gonna see if y’all 

did.” Appellant then admitted that a couple weeks prior to the shooting, he had bought the 

firearm at issue from a “white guy named Adam” who had stolen the gun “from somebody’s 

house.” Appellant stated he wanted the gun for “protection” and he paid for the gun with cash 

and drugs. He acknowledged that he knew his prior convictions barred him from legally 

possessing a firearm.

Appellant further admitted that he was driving the truck when the officers turned on their 

lights to stop him. He stated he “freaked out” because he knew he was illegally possessing a 

firearm and drugs, and then drove off “like a dumbass” with the intent to get home to his wife. 

Regarding the drugs found in his clothing, appellant stated it was all “pre-weighed” heroin and 

admitted he was addicted to heroin and meth, but claimed he only carries enough drugs to use at 

one time and then throws the rest away. However, he also told the agents that he is a dealer, as 

well as a user, because it helps pay for his addiction. He also acknowledged that he had been 

arrested previously for selling cocaine. As to the incident on January 1, 2020, appellant claimed

he thought he had left both the drugs and gun in the truck when he began fleeing on foot.

Appellant initially stated he “didn’t even know the gun was loaded,” but when asked why 

he would carry around an unloaded gun for protection, appellant changed his statement to 

knowing that the gun was loaded but unaware that a bullet was in the chamber because he 

normally carries the gun without a round in the chamber. He then insisted he fired only two 

shots, despite the video evidence showing several more, and claimed he did not remember how 
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the trigger got pulled. Although appellant ultimately offered to write a letter of apology to the 

wounded officer, he concluded the interview by stating he did not remember shooting at the 

police and theorizing that his recorded actions and lack of memory must be the result of the 

drugs he had consumed that evening.

A grand jury indicted appellant in May 2020 for his actions on January 1. After a series 

of continuances, appellant’s bench trial began on August 11, 2021.5 The only charges tried were 

attempted capital murder of a law enforcement officer, in violation of Code §§ 18.2-31(6) and 

18.2-26, use of a firearm in the commission of a felony (second or subsequent offense), in 

violation of Code § 18.2-53.1, and possession of heroin with the intent to distribute, in violation 

of Code § 18.2-248(C).

At the close of the Commonwealth’s evidence, appellant moved to strike the evidence as 

to two of the charges on the grounds that the Commonwealth failed to prove the requisite intent 

elements. Specifically, he argued the evidence did not prove he possessed the heroin with the 

intent to distribute, rather than for self-use. He also argued the evidence failed to prove 

premeditation and deliberation for the attempted capital murder charge because his state of 

voluntary intoxication precluded him from being able to form that specific intent.

The trial court denied the motion to strike. As to the attempted capital murder charge, the 

trial court stated that it had conducted research on the defense of voluntary intoxication and 

reviewed the video footage, all of which indicated appellant had the ability to form the requisite 

intent. In particular, the trial court explained that:

the impression [it] got was [appellant] was trying to straighten out 

a curve and weaving through traffic. . . . [O]n the Smith River 

Bridge, it’s hard to stay in your own lane, much less pass 

somebody. And then of course [appellant] gets out . . . pointed a 

5 Prior to the start of trial, appellant waived his right to a jury trial and pled guilty to three 

felony charges: possession of a firearm by a violent felon, eluding police officers, and possession 

of a firearm while in possession of heroin.
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gun directly at [Officer Panos], looked him in the eyes, fired the 

shots. . . . According to [appellant], he’d only fired the gun one 

time, but he’s able to shoot a police officer at twenty to twenty-five 

feet at night, which makes him a pretty good shot.

Moreover, the trial court noted that even though appellant “had some drugs in his system at some 

point in time, . . . we don’t know the extent of it [because] . . . we don’t have a toxicologist to say 

well yeah, this would have rendered a person unconscious or incapable of making an informed 

decision.”

Regarding the possession charge, the trial court found the evidence sufficient to prove an 

intent to distribute based on the facts that the heroin was pre-packaged in sealed bags next to the

$363 and appellant explicitly admitted that he sold drugs to support his own drug use habits. 

Following the trial court’s denial of the motion to strike, the parties immediately delivered their 

closing arguments along with appellant’s renewed motion to strike on the same grounds as 

previously argued. After hearing argument from both parties, the trial court found “the 

Commonwealth ha[d] borne its burden of proof” and found appellant “guilty of each of the 

charges.” It sentenced appellant to 65 years’ incarceration with 35 years suspended, leaving an 

active sentence of 30 years.

This appeal followed.

II. 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)). So long as the record provides 

“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 reached by the finder of fact at the 

trial.’” Id. (quoting Chavez v. Commonwealth, 69 Va. App. 149, 161 (2018)). “Rather, the relevant 
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question is whether ‘any rational trier of fact could have found the essential elements of the 

crime beyond a reasonable doubt.’” Vasquez v. Commonwealth, 291 Va. 232, 248 (2016) 

(emphasis added) (quoting Williams v. Commonwealth, 278 Va. 190, 193 (2009)).

Like any other factual determination, such as witness credibility, it is the responsibility of 

the factfinder to determine “whether to reject as unreasonable the hypotheses of innocence 

advanced by a defendant.” Young v. Commonwealth, 70 Va. App. 646, 654 (2019) (quoting 

Commonwealth v. Moseley, 293 Va. 455, 464 (2017)). As a result, a factfinder’s determination 

that the evidence “excludes all reasonable hypotheses of innocence . . . is subject to ‘revers[al] 

on appeal only if plainly wrong.’” Id. (quoting Thorne v. Commonwealth, 66 Va. App. 248, 254 

(2016)); see also Ervin v. Commonwealth, 57 Va. App. 495, 520 (2011) (en banc) (“[T]he 

factfinder’s rejection of a hypothesis of innocence ‘cannot be overturned as arbitrary unless no 

rational factfinder would have come to that conclusion.’” (quoting Clanton v. Commonwealth, 53 

Va. App. 561, 573 (2009) (en banc))).

In the absence of clear error, this Court defers to the factfinder’s resolution of conflicts in 

the testimony, weight given to the evidence, and reasonable inferences drawn “from basic facts 

to ultimate facts.” Robinson v. Commonwealth, 70 Va. App. 509, 513 (2019) (quoting Jackson v. 

Virginia, 443 U.S. 307, 319 (1979)).

III. ANALYSIS

Appellant asserts that the evidence presented at trial was insufficient to support his 

convictions for attempted capital murder and possession of heroin with the intent to distribute. 

For both of those charges, appellant argues only that the trial court erred in finding the evidence 

sufficient to prove the intent elements of those charges: premeditation and intent to distribute, 

respectively. However, as the Commonwealth correctly points out, appellant’s “principal 

contention is that the trial court simply drew the wrong inferences from the largely undisputed 
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facts.” Therefore, for the following reasons, this Court finds that the evidence supports the trial 

court’s judgments.

A. Appellant’s Conviction for Attempted Capital Murder

Appellant argues the trial court erred in convicting him of the attempted capital murder of 

Officer Panos because his state of voluntary intoxication rendered him incapable of forming the 

requisite intent. However, because the evidence presented at trial—including video footage from 

the officers’ dash camera and body-worn cameras—supports appellant’s conviction, this Court 

finds the trial court did not abuse its discretion in rejecting appellant’s hypothesis of innocence 

based on voluntary intoxication.

Appellant was tried for and convicted of attempted capital murder of a law enforcement 

officer—Officer Panos—pursuant to Code §§ 18.2-26 and 18.2-31(6). Under these statutes, the 

Commonwealth was required to prove beyond a reasonable doubt that appellant attempted “[t]he 

willful, deliberate, and premeditated killing of a law-enforcement officer . . . for the purpose of 

interfering with the performance of his official duties.”6 Code §§ 18.2-26, -31(6). On appeal, 

appellant contests only whether the evidence established this specific intent. He argues that his 

voluntary intoxication by heroin and meth prevented him from forming the required “willful, 

deliberate, and premeditated” intent. Code § 18.2-31(6).

In Virginia, it is well established that voluntary intoxication is generally “not an excuse 

for any crime.” Tisdale v. Commonwealth, 65 Va. App. 478, 482 (2015) (quoting Wright v. 

Commonwealth, 234 Va. 627, 629 (1988)). The sole exception recognized by Virginia courts is 

6 On the date of the offense, January 1, 2020, Code § 18.2-31 applied to charges of 

“capital murder.” In July 2021, the General Assembly abolished capital murder in Virginia and 

renamed those crimes in Code § 18.2-31 as “aggravated murder.” 2021 Va. Acts Spec. Sess. I 

chs. 344, 345. This change in title reflects only the change in punishment for first-degree 

murder, as capital punishment is no longer a permissible penalty. The substantive evidentiary 

elements of “aggravated murder,” however, remain the same between these two versions of the 

statute.
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when one’s voluntary intoxication “negate[s] the deliberation and premeditation required for first 

degree murder[,] . . . thereby reduc[ing] the conviction from first-degree murder to 

second-degree murder.” Id. (quoting Wright, 234 Va. at 629). In order to negate “the specific 

intent requisite for capital or first-degree murder,” a defendant must show “he was so greatly

intoxicated as to be incapable of deliberation or premeditation.” Id. (emphasis added) (quoting 

Essex v. Commonwealth, 228 Va. 273, 281 (1984)).

Here, appellant did not present evidence establishing that his alleged level of intoxication 

reached that threshold. He offered no forensic evidence of a blood test showing the specific 

amounts of the drugs in his body, nor did he provide any expert testimony from a toxicologist as 

to the physical or mental effects those drugs could have caused at different levels. The 

Commonwealth’s evidence on its own does not demonstrate appellant lacked the ability to form 

the requisite intent; rather, as discussed below, it supports the trial court’s judgment to the 

contrary.

In Abraham v. Commonwealth, 32 Va. App. 22, 28-29 (2000), this Court found that the 

defendant’s actions, including the ability to operate a vehicle and his attempt to evade the police, 

demonstrated “he was not so intoxicated that he could not form the requisite intent” to commit 

premeditated murder, despite his use of cocaine prior to the crime. The Supreme Court made a 

similar finding in Lilly v. Commonwealth, 255 Va. 558, 579, rev’d on other grounds, 527 U.S. 

116 (1999). There, the defendant “was able to operate an automobile both before and after the 

murder” and “took steps to deliberately conceal his involvement in the murder.” Id. The Court 

concluded that those “actions suggest that [defendant] was fully in command of his faculties and 

acted with deliberation. Nothing in the evidence suggests that he was so intoxicated as to be 

unable to form the requisite intent to commit premeditated murder.” Id.
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Appellant’s case presents analogous facts: he operated a vehicle with what would be 

surprising skill and dexterity if he was so intoxicated as to be unable to form specific intent; and 

he concocted a false narrative—both on scene and during his police interview two weeks later—

in a deliberate attempt to place the blame for his own actions on another person not present 

during the incident. Indeed, appellant’s contradictory and inconsistent statements made during 

the January 17 interview, when he was not intoxicated, support the conclusion that he was 

capable of forming the requisite intent on January 1. In particular, appellant initially claimed, in 

a detailed account, that Posey had driven the truck and shot at the police. Yet when confronted 

with the fact that the video evidence showed appellant as the only individual who took those 

actions, appellant suddenly claimed he couldn’t remember doing those things.

If appellant’s memory was so impaired by his drug use that he did not remember leading 

the police on a high-speed vehicle chase and then shooting at them after continuing to flee on 

foot, it is difficult to believe that he would remember all the fake details about Posey’s alleged 

actions that same evening. A rational factfinder could conclude that appellant’s selective 

memory was not a coincidence and instead further highlighted his attempt to avoid responsibility 

for his actions that night. Appellant even told Special Agents Conley and Wade that he had been 

waiting to see if they knew that his initial statements were untrue before he admitted to having 

driven the truck and used the firearm.

And although appellant readily admitted to using drugs that evening, it was not until 

Special Agent Conley expressly asked whether appellant thought the drugs impacted his actions 

and memory that night that appellant agreed it had to be the drugs.

Therefore, the totality of the evidence at trial merely established that appellant had 

consumed both heroin and methamphetamine at some point prior to his contact with the police. 

“Mere intoxication from drugs or alcohol, however, is not sufficient to negate premeditation.” 
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Fitzgerald v. Commonwealth, 223 Va. 615, 631 (1982). Appellant failed to present evidence 

showing that his intoxicated state rose to the required level to render him incapable of forming 

specific intent. Consequently, this Court finds that the trial court did not abuse its discretion in 

rejecting appellant’s claim that his voluntary intoxication rendered him incapable of forming the 

intent required by Code § 18.2-31(6).7

This Court also finds that the trial court did not err in determining the evidence of intent 

was sufficient to convict appellant of attempted capital murder. Frankly, the video footage on its 

own supports the trial court’s judgment on this matter. See Meade v. Commonwealth, 74 

Va. App. 796, 806 (2022) (holding that because appellate courts “owe deference to the trial 

court’s interpretation of all of the evidence, including video evidence,” this Court reviews video 

evidence on appeal “not to determine what [it] think[s] happened, but for the limited purpose of 

determining whether any rational factfinder could have viewed it as the trial court did”).

Those recordings show that, while fleeing from the police in the truck, appellant 

successfully navigated other cars on narrow roads and turns without causing an accident. After 

ditching the truck and continuing to flee on foot towards his nearby house, appellant abruptly 

stopped, turned around to face Officer Panos, and began firing multiple shots at close range, one 

of which did strike Officer Panos in the left arm. That moment where appellant chose to end his 

flight and instead shoot at Officer Panos head-on captures the formation of his premeditated 

intent to kill Officer Panos and thus prevent the officers from arresting him for his illegal 

7

See Lawlor v. Commonwealth, 285 Va. 187, 230 (2013) (holding that evidence of 

defendant drinking “on the day of the offense is insufficient to establish that he was too 

intoxicated to form the requisite intent” to commit capital murder (emphasis in original));

Jenkins v. Commonwealth, 244 Va. 445, 458 (1992) (finding defendant’s claim “to have 

consumed a substantial quantity of intoxicating beverages during the day of the crimes was 

insufficient to show that he ‘was so intoxicated as to render him incapable of committing a wilful 

[sic], deliberate, and premeditated act designed to kill’ the victims” (quoting Hatcher v. 

Commonwealth, 218 Va. 811, 814 (1978))).
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possession of a firearm and heroin. See Bowling v. Commonwealth, 12 Va. App. 166, 173 (1991) 

(“The question of premeditation is a question to be determined by the fact-finder. ‘To establish 

premeditation, the intent to kill need only exist for a moment.’” (quoting Peterson v. 

Commonwealth, 225 Va. 289, 295 (1983))).

Moreover, the additional evidence and witness testimony—including appellant’s own 

admissions—further established appellant’s intent. For example, appellant eventually admitted 

that he fled from the police in the truck because he was high on drugs, possessed more drugs, and 

was also in possession of a firearm that he knew he was not allowed to have. He claimed his 

intent at that point was to get home to his wife. However, as indicated by appellant’s actions, 

that intent changed when appellant stopped running, turned around to face Officer Panos, and 

began firing multiple shots at Officer Panos from only several yards away. Appellant had almost 

reached his house by that point, but he had not been able to outrun the officers, so he deliberately 

changed tactics in his continuing attempt to thwart arrest.

This Court, therefore, finds the record contains sufficient evidence to support appellant’s 

conviction for the attempted capital murder of Officer Panos. And this Court cannot say that no 

rational factfinder could have drawn the same conclusion.

B. Appellant’s Conviction for Possession with the Intent to Distribute

Appellant contends the Commonwealth’s evidence was insufficient to prove that he 

possessed heroin with the specific intent to distribute it rather than consume it for personal use. 

Because the evidence supports a finding to the contrary, this Court affirms the trial court’s 

judgment.

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

proved by circumstantial evidence.” Turner v. Commonwealth, 75 Va. App. 491, 504 (2022) 

(quoting Holloway v. Commonwealth, 57 Va. App. 658, 666 (2011) (en banc)). “While no single 
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piece of evidence may be sufficient, the ‘combined force of many concurrent and related 

circumstances, each insufficient in itself, may lead a reasonable mind irresistibly to a 

conclusion.’” Holloway, 57 Va. App. at 666 (quoting Derr v. Commonwealth, 242 Va. 413, 425 

(1991)). Consequently, although “Virginia courts have considered a number of factors alone and 

in combination when determining if an intent to distribute exists,” the Commonwealth “need not 

present evidence of each of the . . . factors” so long as the “totality of the circumstantial evidence 

. . . exclude[s] the reasonable hypothesis of possession for personal use.” Id. at 666-67.

Those factors include, but are not limited to, packaging, quantity, presence or absence of 

drug paraphernalia for personal use, expert testimony, a large amount of money, and 

paraphernalia consistent with distribution. Id. Cf. Stanley v. Commonwealth, 12 Va. App. 867, 

869 (1991) (finding “a conviction for possession with the intent to distribute may be upheld even 

though the quantity of drugs seized is consistent with personal use”). This Court has also 

recognized that possession of a firearm, considered a “tool of the drug trade,” is “a factor 

indicating an intent to distribute.” Scott v. Commonwealth, 55 Va. App. 166, 174 (2009). 

Moreover, concurrent possession of a firearm and controlled substance supports an inference that 

the possessor had the intent to distribute the drugs. Id.

Under the circumstances here, a rational factfinder could conclude that appellant intended 

to distribute the heroin he possessed. The heroin was pre-packaged into nine individual Ziploc 

bags, all of which were found in the pocket of appellant’s pants directly next to a folded bundle 

of cash. And it was not merely several dollars, as found separately in appellant’s wallet, but 

rather over $300 in small bills. That evidence indicates that the nine bags of heroin were all that 

remained from a larger cache appellant had already sold for the substantial amount of money in 

his pocket.
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Appellant also illegally possessed a firearm, allegedly for his own protection, and even 

admitted that he sells drugs as a source of income to fund his own addiction. In combination 

with the rest of the evidence, that admission is particularly damning even though appellant did 

not make any direct statement as to his intent regarding the nine bags of heroin he possessed on 

January 1, 2020.

Finally, given his admissions of drug addiction and drug dealing, appellant’s unsupported 

claim that he throws away whatever drugs he does not personally consume at one time defies 

common sense. The trial court, acting as factfinder, did not abuse its discretion in rejecting that 

self-serving testimony. See Turner, 75 Va. App. at 504 (disregarding appellant’s claim at trial 

that his prior admissions of drug-dealing to the police were fabricated); Flanagan v. 

Commonwealth, 58 Va. App. 681, 702 (2011) (“In its role of judging witness credibility, the fact 

finder is entitled to disbelieve the self-serving testimony of the accused and to conclude the 

accused is lying to conceal his guilt.”). Accordingly, this Court finds that appellant’s conviction 

for this offense is supported by sufficient evidence.

IV. CONCLUSION

Finding no clear error, this Court defers to the trial court’s factual determinations that 

appellant’s voluntary intoxication did not prevent him from forming the intent to kill Officer 

Panos and that appellant possessed heroin with the intent to distribute it rather than use it for 

personal consumption. This Court thus finds the evidence sufficient to support appellant’s 

convictions for attempted capital murder and possession of a controlled substance with the intent 

to distribute. The judgment of the trial court is affirmed.

Affirmed.