                   COURT OF APPEALS OF VIRGINIA


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


BOBBY ALEXANDER SHELTON
                                         MEMORANDUM OPINION * BY
v.   Record No. 0712-94-2               JUDGE SAM W. COLEMAN III
                                            FEBRUARY 13, 1996
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                      Robert W. Duling, Judge
           Maureen L. White (David J. Johnson,
           Public Defender, on brief), for appellant.

           Michael T. Judge, Assistant Attorney General
           (James S. Gilmore, III, Attorney General, on
           brief), for appellee.



      Bobby A. Shelton was convicted for possession of cocaine

with intent to distribute in violation of Code § 18.2-248.    He

contends the trial judge erred by taking judicial notice of facts

from other cases that the quantity of cocaine proved intent to

distribute and by finding the evidence sufficient to prove an

intent to distribute.    We hold that the trial court did not take

judicial notice of facts outside the record and we find the

evidence sufficient to prove intent to distribute.   Therefore, we

affirm the conviction.

      The evidence proved that Officers Scott Shapiro and John

O'Kleasky approached a parked vehicle at 2:30 a.m. and saw

Shelton sitting in the front passenger seat, making frantic

      *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
movements with his right hand, bending down, and looking over his

right shoulder.    Shelton threw a rolled up plastic bag to his

left.    The bag hit the driver's side window and fell to the left

side of the driver's seat.    The officers opened the door and

seized the bag, later determined to contain 46.5 grams of

cocaine.    Shelton had on him a pager and $732 in currency when

arrested.    In response to questioning, Shelton stated that he was

working for a person named "Buzz," that the drugs were left in

the car by another person, that the drugs were not his, and that

the money was his girlfriend's.    Shelton later stated that the

pager belonged to his girlfriend and that he did not throw the

bag.
        Shelton moved to strike the Commonwealth's evidence.   He

asserted that the Commonwealth had failed to meet its burden of

proving he intended to distribute drugs because no expert

testimony was offered to show that the quantity of drugs found

was inconsistent with personal use.      In response, the

Commonwealth argued that the evidence was sufficient to prove

intent to distribute and that it was not obligated to put forth

expert testimony as to quantity when it is apparent to the fact

finder that the quantity is not consistent with personal use.

Asserting that the trial judge as fact finder could apply the

knowledge gained from other cases involving possession with

intent to distribute, the Commonwealth argued that the judge

could find on these facts that 46.5 grams of cocaine is a




                                 - 2 -
quantity that shows intent to sell.      The trial court overruled

Shelton's motion to strike.

     This Court "must view the evidence in the light most

favorable to the Commonwealth, granting to it all reasonable

inferences fairly deducible therefrom."      Novak v. Commonwealth,

20 Va. App. 373, 373, 457 S.E.2d 402, 411 (1995).     Where intent

is proved by circumstantial evidence, as in this case, "all

necessary circumstances proved must be consistent with guilt and

inconsistent with innocence and exclude every reasonable

hypothesis of innocence."     Rice v. Commonwealth, 16 Va. App. 370,

372, 429 S.E.2d 879, 880 (1993) (citations omitted).

     From our review of the record, the trial judge did not take

judicial knowledge of a fact or facts proven in other cases that

the judge had heard.   Admittedly, in considering Shelton's motion

to strike the evidence, the trial judge initially read from

2 Charles E. Friend, The Law of Evidence in Virginia § 19-1 (4th

ed. 1993), concerning a judge's authority to take judicial notice

of certain facts.   However, in determining whether the evidence

proved intent to distribute, the trial judge analyzed the

officers' testimony, found it credible, and considered whether

the quantity of cocaine, the statements by the accused, and his

possession of a pager and $732 in cash proved that Shelton

intended to possess the cocaine.    The judge did not decide the

issue of intent to distribute by resorting to judicial notice of

facts proven in other cases.    The record demonstrates that the



                                 - 3 -
judge ruled, based on the evidence before him, that the

Commonwealth had sufficiently proven intent based on testimony

and physical evidence in this case.    The fact that the trial

judge commented that the amount of cocaine was the most he had

seen in any case he had heard did not constitute taking judicial

notice of a fact from another or other cases.   Accordingly, we

reject the appellant's contention that the trial judge relied

upon judicial notice of facts proven in other cases in order to

find that Shelton intended to distribute the cocaine he

possessed.
     To prove intent to distribute, the Commonwealth introduced a

pager and $732 in cash, statements of the accused, and the 46.5

grams of cocaine.   The quantity of drugs is a "circumstance to be

considered" in determining whether it is for personal use or for

distribution.   Dukes v. Commonwealth, 227 Va. 119, 122, 313

S.E.2d 382, 383 (1984).   A large amount of money is a fact that

may be considered as evidence that the defendant did not possess

drugs for personal use.   Servis v. Commonwealth, 6 Va. App. 507,

524, 371 S.E.2d 156, 165 (1988).   See also Minor v. Commonwealth,

6 Va. App. 366, 372, 369 S.E.2d 206, 209 (1988).   Shelton's

conflicting statements are other evidence the fact finder could

consider to prove intent to distribute.   He gave conflicting

accounts concerning ownership of the pager and his actions at the

scene.   His false and contradictory statements may be considered

as evidence attempting to conceal his guilt.    Smith v.




                               - 4 -
Commonwealth, 192 Va. 453, 461, 65 S.E.2d 528, 533 (1951).       Thus,

based upon the quantity of drugs, the amount of money, the pager,

and Shelton's statements, the trial judge could reasonably infer

that Shelton intended to distribute the cocaine.     Monroe v.

Commonwealth, 4 Va. App. 154, 156, 355 S.E.2d 336, 337 (1987).

     Shelton also alleges the Commonwealth introduced

insufficient evidence to prove beyond a reasonable doubt his

intent to distribute cocaine.   The evidence of the pager, money,

quantity of drugs, and conflicting statements is consistent with

guilt and precludes every hypothesis of innocence.    Where the

quantity of drugs and other circumstances are sufficient that the

fact finder can reasonably infer an intent to distribute, it is

not necessary that the Commonwealth introduce expert testimony

that based on the witness's experience, in his opinion, the

quantity of drugs is inconsistent with personal use.    For the

foregoing reasons, we hold that the evidence is sufficient to

prove beyond a reasonable doubt that the defendant possessed the

cocaine with the intent to distribute it.   Therefore, we affirm

Shelton's conviction for possession of cocaine with intent to

distribute.
                                                     Affirmed.




                                - 5 -
BENTON, J., dissenting.



     I would hold that the trial judge erred in judicially

noticing that the quantity and packaging of cocaine indicated an

intent to distribute.   Thus, I would also hold that the evidence

in this record failed to prove beyond a reasonable doubt that

(1) the cocaine seized from the automobile was an amount

inconsistent with personal use or (2) Shelton possessed the

cocaine with an intent to distribute it.
     "Judicial notice is a short cut to avoid the necessity for

the formal introduction of evidence in certain cases where there

is no need for such evidence."     Williams v. Commonwealth, 190 Va.

280, 291, 56 S.E.2d 537, 542 (1949).     However, a judge may only

judicially notice facts that are common knowledge or easily

ascertainable by reference to reliable sources.     Griswold v.

Commonwealth, 19 Va. App. 477, 484, 453 S.E.2d 287, 290, reversed

en banc on other grounds, 21 Va. App. 22, 25, 461 S.E.2d 411, 412

(1995).

     Acknowledging the lack of evidence of intent to distribute,

the prosecutor urged the trial judge to judicially notice that

the amount proved intent to distribute.    He specifically argued

as follows:
              As to the intent, Judge, there's got to
          be a point where, first of all, the
          Commonwealth is only obligated to put forth
          the testimony of an expert witness when the
          trier of fact would need expert testimony.
          The Court has heard cases involving
          possession with intent, has on many occasions
          passed judgment on amounts, lack thereof,


                                 - 6 -
          statements, other indicia of distribution.
          This case involves 46 and a half grams.

              What distinguishes this case from the run
          of the mill possession with intent case is
          the fact that it's in chunks. An expert
          could very well have come in and said, "Yes,
          . . . that amount is a large amount. It
          would be expensive on the street." [Defense
          counsel's] question to the expert would have
          had to have been, "Sir, couldn't this person
          have bought the stuff, to hoard it, to last
          him from now until the end of the summer?"
          And the answer would have had to have been,
          "Yes," or the expert would have lost his
          credibility. The expert also could have
          said, "I've seen people chip off crack
          cocaine on the street." The Court has heard
          it a thousand times. The problem is [defense
          counsel] can't explain it away because . . .
          Shelton is working for someone named Buzz.
          Then he says a dude left it in the car. Then
          he says he threw it but didn't really know
          what it was. Then at the bottom down at
          headquarters he says he didn't throw it. He
          didn't really know what it was. And the
          final lie was that it was his girl's pager.
          Now, it was either his girl's pager or a
          guy's pager. Either he knew what it was or
          he didn't. And either he threw it or he
          didn't. But his dishonesty is a
          consideration the Court can take into account
          as to his knowledge, intent, and as to
          whether -- it's knowledge. It's evidence of
          his guilt. The Court has the pager, the
          money, and the amount.
              There can't be a need to call in an
          expert for 46 grams. There's got to be a
          point where the Court is allowed to take
          judicial notice of the amount otherwise we
          can haul in a dumpster full of cocaine and
          counsel can make the argument the person
          intended to hold on to the cocaine from now
          until he died. He got a good sale and won't
          have to repurchase. (emphasis added).


     In rendering his decision, the trial judge quoted 2 Charles

E. Friend, The Law of Evidence in Virginia, § 19-1 (4th ed.



                              - 7 -
1993), and made the following statement of his judicial notice:
              I just wanted to take a minute to review
          some of the comments in the law pertaining to
          judicial notice and Mr. Friend states, among
          other things, in speaking about a trial "may
          require that scores or even hundreds of
          individual bits of evidence be introduced for
          the consideration of the trier of the fact.
          However, many of these bits and pieces which
          are so obvious and indisputable that to
          require formal proof of them would be both a
          waste of time and an obstruction of the
          orderly process of justice." And further he
          makes reference to the extent to which jurors
          may employ their own knowledge as to matters
          not in evidence, which would also pertain to
          a judge trying a case without a jury. And he
          goes on to say that jurors may make use of
          that reason and common sense and the
          knowledge and experience gained by them in
          everyday life.

     In his finding of facts, the trial judge commented on the

quantity of the cocaine, its packaging, and the purported

significance of the cocaine being broken into chunks.   However,

the record contains no evidence regarding the significance of

these matters or their relationship to personal use or methods of

distribution.   Finding that "it's probably the largest amount

that I've seen packaged in this fashion in a long time," the

trial judge ruled that the amount coupled with the packaging and

other facts of the case proved Shelton possessed the cocaine with

an intent to distribute it.

     The trial judge erroneously relied upon his own knowledge

from other cases in inferring that one and a half ounces of

cocaine was a quantity that indicated an intent to distribute.

Moreover, the Supreme Court has stated that a "relatively small



                               - 8 -
quantity of [drugs] in the defendant's possession warrants the

inference that it was for [the defendant's] personal use."      Dukes

v. Commonwealth, 227 Va. 119, 122-23, 313 S.E.2d 382, 384 (1984).

In this case, the Commonwealth asked the trial judge to infer

from his knowledge that 1.5 ounces of cocaine was not a

relatively small quantity, that it was a quantity that was not

consistent with personal use, and further that it indicated an

intent to distribute.   The evidence provides no foundation from

which those inferences could be drawn.
     Moreover, no evidence proved that the manner of packaging

was significant.   Indeed, no evidence in this record addressed

the method of packaging.   As the Supreme Court stated in the

following passage in Dukes, users purchase packaged drugs and,

thus, the method of packaging often may be of little value in

distinguishing whether possession is for personal use or

distribution:
          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 she packaged the marijuana for
          distribution.


227 Va. at 123, 313 S.E.2d at 384.

     "While courts take judicial notice of such facts as are

commonly known from human experience, 'facts which are not

judicially cognizable must be proved, even though known to the

judge or to the court as an individual.'"   Darnell v. Barker, 179



                               - 9 -
Va. 86, 93, 18 S.E.2d 271, 275 (1942)(citation omitted).   The

judge's knowledge of the significance of a particular quantity of

cocaine and packaging which he apparently obtained from having

heard evidence in other cases, does not permit the Commonwealth

to dispense with "proof of facts not judicially cognizable" and

to rely upon proof from other cases. Id.
          "The general rule is that the court will not
          travel outside the record of the case before
          it in order to take notice of the proceedings
          in another case, even between the same
          parties and in the same court, unless the
          proceedings are put in evidence. The reason
          for the rule is that the decision of a cause
          must depend upon the evidence introduced. If
          the courts should recognize judicially facts
          adjudicated in another case, it makes those
          facts, though unsupported by evidence in the
          case at hand, conclusive against the opposing
          party; while if they had been properly
          introduced they might have been met and
          overcome by him."

Bernau v. Nealon, 219 Va. 1039, 1043, 254 S.E.2d 82, 85

(1979)(citation omitted).

     I would hold that no evidence in this record proved the

significance of the quantity of cocaine or the method by which

the cocaine was placed in the bag.    Shelton's mere possession of

one and a half ounces of cocaine in a bag while he had money and

a pager do not prove beyond a doubt that Shelton possessed the

cocaine with the intent to distribute.




                             - 10 -
