                      COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Coleman and Senior Judge Cole
Argued at Richmond, Virginia

WILLIE LEE WILLIAMS, JR.

v.   Record No. 0749-94-2                    MEMORANDUM OPINION *
                                           BY JUDGE MARVIN F. COLE
COMMONWEALTH OF VIRGINIA                      DECEMBER 5, 1995


                FROM THE CIRCUIT COURT OF HALIFAX COUNTY
                        William L. Wellons, Judge

              Buddy A. Ward, Public Defender (Office of the
              Public Defender, on brief), for appellant.
              Eugene Murphy, Assistant Attorney General
              (James S. Gilmore, III, Attorney General, on
              brief), for appellee.



     Willie Lee Williams, Jr. was convicted of possession of

heroin with the intent to distribute in violation of Code

§ 18.2-248.     On appeal, Williams contends that the evidence was

insufficient to prove beyond a reasonable doubt that he possessed

the heroin with the intent to distribute it.        We disagree and

affirm.
                                     I.

     On January 7, 1993, Investigator Loftis, of the South Boston

Police Department, stopped a car in which Williams was the sole

occupant.     Loftis issued Williams a traffic summons and impounded

Williams' car because Williams' operator's license had expired

and the car lacked a front license plate.

     The police conducted an inventory search of the car.          In the
          *
           Pursuant to Code      §   17-116.010   this   opinion   is   not
designated for publication.
trunk of the car, Loftis found a glasses case inside of a shaving

kit.   The glasses case contained a clear plastic bag that

contained twenty-eight small plastic bags filled with heroin.

The total weight of the heroin was 4.66 grams.

       Loftis, who was qualified as an expert witness in the

preparation and distribution of drugs, testified that the amount

of heroin and the method of its packaging was inconsistent with

personal use.   Loftis stated, "You just don't see that amount for

personal use.   Usually it's a very small amount."   Loftis also

testified the heroin would sell for $50 per packet in South

Boston on January 7, 1993.
       In his written statement, appellant denied any knowledge of

drugs in the car.
                                 II.

       "On appeal, we review the evidence in the light most

favorable to the Commonwealth, granting to it all reasonable

inferences fairly deducible therefrom."    Martin v. Commonwealth,

4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987).     "In proving

intent, various types of circumstantial evidence may be

appropriate -- evidence concerning the quantity of drugs and cash

possessed, the method of packaging, and whether appellant himself

used drugs."    Poindexter v. Commonwealth, 16 Va. App. 730,

734-35, 432 S.E.2d 527, 530 (1993).

       Viewed in the light most favorable to the Commonwealth, the

evidence in this case showed that Williams possessed twenty-eight




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individual packets of heroin totalling 4.66 grams.   Loftis, who

was qualified as an expert in the preparation and distribution of

drugs, testified that this quantity of heroin was inconsistent

with personal use, and that the method of packaging of the heroin

was inconsistent with personal use.

     Although Williams argues that he could have been a "heavy

user" of heroin, no evidence introduced at trial indicated that

Williams was a heroin user.   In fact, Williams denied knowledge

of the existence of the heroin in the car.   Therefore, we cannot

conclude, based on this evidence, that the evidence was

insufficient to support the conviction for possessing the heroin

with an intent to distribute it.
     For the foregoing reasons, the judgment of the trial court

is affirmed.

                                              Affirmed.




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Benton, J., dissenting.



     Based solely on the amount of cocaine and the method of

packaging, the trial judge made a finding that Williams intended

to distribute the cocaine.    The principle is well established,

however, that "possession of a small quantity [of a controlled

substance] 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).        The evidence does not

prove beyond a reasonable doubt that the twenty-eight individual

packages of the substance was an amount inconsistent with

personal use.
     Over objection, the arresting officer testified as follows:
          Q. Investigator Loftis, in the hundreds of
          cases that you have investigated,
          distribution cases, have you ever had --
          discovered an individual or encountered an
          individual with this amount of drugs packaged
          as it was who is simply using as opposed to
          distributing?

                   *    *    *    *      *      *    *

             A. You just don't see that amount for
             personal use. Usually it's a very small
             amount.


The officer's conclusion, based solely on his past encounters

with persons who "[u]sually [have] a very small amount," does not

prove Williams intended to distribute the substance.

     Moreover, the evidence does not establish any unusual

packaging.    The substance was packaged in separate bags

consistent with the manner in which one might purchase the


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substance.
             The mode of packaging and the way the
             packages were hidden are as consistent with
             possession for personal use as they are with
             intent to distribute. It is just as
             plausible that the defendant purchased the
             packaged substance for personal use as it is
             that [the defendant] packaged the [substance]
             for distribution.


Id. at 123, 313 S.E.2d at 384.

     The evidence does not indicate that Williams had any unusual

denominations of money or other paraphernalia suggesting an

intent to distribute.    The absence of such indications are

consistent with the hypothesis that Williams possessed the

substance for his personal use.        See Wells v. Commonwealth, 2 Va.

App. 549, 553, 347 S.E.2d 139, 140 (1986).

     "The Commonwealth had the burden to prove by evidence beyond

a reasonable doubt that [Williams] possessed the [substance] with

intent to distribute."     Dukes, 227 Va. at 123, 313 S.E.2d at 384.

"Suspicion of [intent to distribute] is not sufficient for a

conviction."     Wells, 2 Va. App. at 553, 347 S.E.2d at 141.    I

would hold that the evidence was not sufficient to prove that

Williams intended to distribute the drugs.




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