                    COURT OF APPEALS OF VIRGINIA

Present: Judges Bray, Annunziata and Senior Judge Hodges
Argued at Norfolk, Virginia

OSCAR FOSTER

v.   Record No. 2571-94-1                   MEMORANDUM OPINION *
                                        BY JUDGE WILLIAM H. HODGES
COMMONWEALTH OF VIRGINIA                     NOVEMBER 28, 1995


      FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
                  Edward W. Hanson, Jr., Judge

            Larry W. Shelton (Goldblatt, Lipkin & Cohen, P.C.
            on brief), for appellant.
          Eugene Murphy, Assistant Attorney General (James S.
     Gilmore, III, Attorney General, on brief), for
     appellee.



     Oscar Foster was convicted of possession of heroin in

violation of Code § 18.2-250, and 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 beyond a

reasonable doubt that he committed these offenses.        We disagree

and affirm.

                                   I.

     On the evening of October 27, 1993, Officer Spiess stopped a

vehicle driven by appellant.   Appellant consented to a search of

his person.    Spiess testified appellant "was wearing very loose

clothing in numerous layers.   It was hard to get a real good

search . . . ."   Detective Tosloskie, who assisted Spiess, stated

appellant wore "two or three layers of clothes . . . a full

        *
           Pursuant to Code    §   17-116.010    this   opinion   is   not
designated for publication.
winter jacket, sweat suit top, a shirt, and I think two pairs of

pants . . . ."

       Spiess found no drugs during the search, but recovered

"several bundles of twenty dollar bills that [were] about the

size of a cigarette package."   The money was bundled in packets

of $100 each and totalled about $4,000.   Tosloskie also recovered

$969 from two or three wallets carried by appellant.   Spiess

found several "brand new," unused crack pipes in the car, and,

under the driver's seat of the car, Spiess found a metal pipe

filled with rubber.
       A narcotics search dog searched appellant's vehicle, but not

appellant's person.   The dog did not alert to narcotics in the

car.   Appellant was then arrested for possession of a concealed

weapon (the metal pipe).

       Spiess transported appellant to the jail in the back seat of

Spiess' police vehicle at about 10:30 p.m.   Appellant's hands

were handcuffed behind his back while he was in the car.

However, Spiess testified he saw appellant move around "quite a

bit" while he rode in Spiess' car.    After leaving appellant at

the jail, Spiess searched his vehicle and recovered a cigarette

package from the floorboard of the back seat area of the car.

This package held smaller packages which contained a total of

about five grams of cocaine, and a small amount of heroin.

Tosloskie estimated the value of the recovered drugs was about

$1,100 to $1,200.   The smaller "envelopes" containing the drugs




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had numbers written on them which Tosloskie stated represented

the weights of the packages.    Tosloskie also testified that the

packaging of the drugs was consistent with drug distribution.

The cigarette package carried a fingerprint which did not match

appellant's fingerprints.

     Spiess testified that it is common practice for him to

search his car at the beginning of each shift.      He looks

underneath the seats and removes trash from the car.      He takes

the back seat completely out of the car and looks under

insulation that could be loose.    Spiess conducted such a search

of his car at 3:00 p.m. on the day he transported appellant.

Spiess also searched the car immediately before he transported

appellant.    Spiess found nothing in the car during these

searches.
     Spiess transported no one in his car on October 27, 1993,

prior to transporting appellant.       Spiess testified his car

remains locked when he is not in it, and he is the only person

with keys to the car.

                                  II.
               [I]n a criminal prosecution, based entirely
             on circumstantial evidence, "a suspicion of
             guilt, however strong, or even a probability
             of guilt, is insufficient to support a
             criminal conviction." Nevertheless,
             circumstantial evidence may be more
             compelling and persuasive than direct
             evidence, and when convincing, it is entitled
             to as much weight as direct evidence.
             Whether the Commonwealth relies upon either
             direct or circumstantial evidence, it is not
             required to disprove every remote possibility
             of innocence, but is, instead, required only



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            to establish guilt of the accused to the
            exclusion of a reasonable doubt.


Bridgeman v. Commonwealth, 3 Va. App. 523, 526-27, 351 S.E.2d

598, 600 (1986) (citations omitted).

       Appellant argues that the circumstantial evidence did not

prove beyond a reasonable doubt that the cigarette package was

possessed by appellant.   Appellant contends that the following

evidence supports a reasonable hypothesis of innocence:   (1) the

fingerprint on the cigarette package did not match appellant's

fingerprints; (2) the narcotics dog was taken through appellant's

car, against which appellant was standing, and did not alert to

narcotics; (3) appellant's hands were handcuffed behind

appellant's back while he was in Spiess' car; (4) appellant was

searched prior to riding in Spiess' car and no drugs were found

on appellant's person; and (5) the $4,000 in cash was provided to

appellant by his son and his estranged wife for the purchase of a

car.
       "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).   Spiess' car was

thoroughly searched twice on October 27, 1993, at the beginning

of Spiess' shift, and immediately prior to placing appellant into

the car.   No drugs were found in the car during either search.

No one, other than appellant, was transported in the car on the

day appellant was arrested.   In addition, the evidence showed



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that the narcotics dog searched only appellant's vehicle and did

not search appellant's person.    Moreover, appellant wore

"numerous layers" of clothing, making a thorough and complete

search of appellant difficult, if not impossible.      It is not

unreasonable to infer that the search under these conditions

would not have disclosed the cigarette package.       See Glover v.

Commonwealth, 3 Va. App. 152, 160, 348 S.E.2d 434, 440 (1986),

aff'd, 236 Va. 1, 372 S.E.2d 134 (1988).
     Furthermore, Spiess testified that appellant moved around

"quite a bit" while he rode in Spiess' car.      Thus, there was

sufficient evidence from which the jury could find appellant

disposed of the cigarette package in Spiess' vehicle despite the

fact that he was handcuffed while in the police car.       See id. at

160-61, 348 S.E.2d at 440.

     The presence of another person's fingerprint on the

cigarette package was evidence for the jury to consider.

However, the weight to be given this evidence was for the jury to

decide.   See Keyes v. City of Virginia Beach, 16 Va. App. 198,

199, 428 S.E.2d 766, 767 (1993).       Even with the fingerprint

evidence, abundant circumstantial evidence existed from which the

jury validly could have inferred that appellant possessed the

cigarette package containing the drugs.

                                 III.

     "In proving intent, various types of circumstantial evidence

may be appropriate -- evidence concerning the quantity of drugs




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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 showed

that appellant was carrying individual packets of cocaine

totalling almost five grams.   Tosloskie testified that the method

of packaging of the cocaine was inconsistent with personal use

and that the drugs were valued at about $1,100 to $1,200.

Tosloskie further stated that had appellant purchased the drugs

packaged in this fashion, he would have paid "quite a bit more"

than if he purchased a large "chunk."   Furthermore, no evidence

introduced at trial indicated that appellant was a cocaine user,

and several unused crack pipes were recovered from appellant's

car.
       Appellant also possessed $4,000 in cash formed into bundles,

and over $900 in cash kept in two or three wallets.   Although

appellant's son and his estranged wife testified that appellant

had the $4,000 in order to purchase a car, the "[t]he weight

which should be given to evidence and whether the testimony of a

witness is credible are questions which the fact finder must

decide."    Bridgeman, 3 Va. App. at 528, 351 S.E.2d at 601.   The

jury did not believe the testimony of appellant's son and his

estranged wife concerning the presence of the cash.

        Based on this evidence, we cannot conclude that the jury

erred in finding that appellant intended to distribute the




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cocaine.

     For the foregoing reasons, the judgment of the trial court

is affirmed.

                                                  Affirmed.




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