                     COURT OF APPEALS OF VIRGINIA


Present:  Chief Judge Fitzpatrick, Judge Benton and
          Senior Judge Duff
Argued at Alexandria, Virginia


MICHAEL SUMMERS, S/K/A
 MICHAEL SCOTT SUMMERS
                                       MEMORANDUM OPINION * BY
v.   Record No. 0166-97-3      CHIEF JUDGE JOHANNA L. FITZPATRICK
                                           JUNE 2, 1998
COMMONWEALTH OF VIRGINIA


              FROM THE CIRCUIT COURT OF ROCKINGHAM COUNTY
                      Porter R. Graves, Jr., Judge

           Danita S. Alt for appellant.

           Ruth Ann Morken, Assistant Attorney General
           (Richard Cullen, Attorney General, on brief),
           for appellee.



      Michael Scott Summers (appellant) was convicted in a jury

trial of possession with the intent to distribute methamphetamine

in violation of Code § 18.2-248.       On appeal he contends the

evidence was insufficient to prove either possession or the

intent to distribute.    Finding no error, we affirm the

conviction.

                                  I.

      Taken in the light most favorable to the Commonwealth, the

evidence adduced at trial established that on April 30, 1995,

Officer Rob Greer stopped a pickup truck for erratic driving at

the intersection of Routes 42 and 257 in Rockingham County.

Greer smelled the odor of alcohol in the truck and asked the
      *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
driver, Melody Ann Whitmer, to come to his vehicle.   Tina

Shifflett, who was Whitmer's sister and a passenger, remained in

her seat in the center of the vehicle.   Appellant, also a

passenger and the owner of the truck, remained in his seat on the

right side of the vehicle.   Officer Greer asked Whitmer if she

had been drinking, and she admitted having had four or five

beers.   She further stated that she had smoked a joint of

marijuana earlier.   Greer left Whitmer in the police car,

returned to the truck, and obtained appellant's consent to search

it.
      The police found the following items in the truck:     (1) a

grocery bag wrapped around six plastic sandwich bags of marijuana

under the driver's seat; (2) two plastic sandwich bag corners

containing methamphetamine and tied shut with twist ties tucked

between a package of Marlboro cigarettes and the outside lining

of the package on the passenger side of the floor; (3) a plastic

bag of marijuana on the floor beside the cigarette package; (4)

three individually wrapped sandwich bag corners of

methamphetamine in Whitmer's wallet near the gearshift; (5) a

blue Crown Vic Royal bag containing two smoking devices near the

wallet; (6) empty plastic sandwich bags with the corners cut off;

a plastic bag that contained a cut corner of a plastic bag and

small twist ties; (7) a pager; and (8) address and phone books.

During a pat-down search, Greer recovered $165 in small bills

from appellant.   He asked appellant what he did for a living, and




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appellant replied that he was unemployed.    Appellant was arrested

and charged with possession with the intent to distribute

methamphetamine.

     At trial, Whitmer testified that the drugs found in her

wallet were not hers.    She further testified that earlier in the

evening appellant had supplied her with "methamphetamine [that]

was in a cut off baggie."    At the close of the Commonwealth's

case, appellant moved to strike the evidence as insufficient to

support a conviction on the grounds that at least one-third of

the drugs were in Whitmer's wallet and there was no proof that

the drugs were not for personal use.    The trial court denied

appellant's motion to strike.    The jury convicted appellant of

possession with the intent to distribute methamphetamine.    He was

sentenced in accordance with the verdict to five years in prison

and a $500 fine.
                                  II.

     Appellant contends the Commonwealth failed to prove he

possessed the methamphetamine.    He argues the only link between

himself and the methamphetamine was that it was found in his

truck and that this fact was insufficient to establish

constructive possession.

     "To sustain a conviction for possession of a controlled

substance . . . the evidence must prove beyond a reasonable doubt

that the accused was aware of the presence and character of the

controlled substance."     Jones v. Commonwealth, 17 Va. App. 572,




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574, 439 S.E.2d 863, 864 (1994).       "Ownership of a vehicle where

drugs are found and mere proximity to the drugs . . . are

insufficient alone to prove possession."       Scruggs v.

Commonwealth, 19 Va. App. 58, 61, 448 S.E.2d 663, 665 (1994).

However,
           "[o]wnership or occupancy of a vehicle . . .
           where illicit drugs are found is a
           circumstance that may be considered together
           with other evidence tending to prove that the
           owner or occupant exercised dominion and
           control over items in the vehicle . . . in
           order to prove that the owner or occupant
           constructively possessed the contraband.
           Furthermore, proof that a person is in close
           proximity to contraband is a relevant fact
           that, depending on the circumstances, may
           tend to show that, as an owner or occupant of
           . . . a vehicle, the person necessarily knows
           of the presence, nature and character of a
           substance that is found there."

Logan v. Commonwealth, 19 Va. App. 437, 444, 452 S.E.2d 364, 369

(1994) (citing Burchette v. Commonwealth, 15 Va. App. 432, 435,

425 S.E.2d 81, 83 (1992)).

     When the sufficiency of the evidence is challenged on

appeal, "'we must view all the evidence in the light most

favorable to the Commonwealth and accord to the evidence all

reasonable inferences fairly deducible therefrom.'"         Phillips v.

Commonwealth, 25 Va. App. 144, 155, 487 S.E.2d 235, 240-41 (1997)

(citation omitted).   The evidence in the instant case proved that

the police found two cut-corner baggies of methamphetamine in the

Marlboro cigarette package on the floor of the truck near where

appellant had been sitting.   Shifflett and Whitmer testified that




                                   4
they smoked other brands of cigarettes.   They also testified that

appellant smoked Marlboros and that he had purchased some earlier

that evening.   From this testimony, the jury could conclude

beyond a reasonable doubt that the package of Marlboros and the

drugs tucked inside the wrapper belonged to appellant.

     Additionally, despite appellant's attempt to impeach Whitmer

as a codefendant, it was within the jury's province as finder of

fact to credit her testimony that appellant had supplied

methamphetamine to her earlier in the evening.   See Marshall v.

Commonwealth, 26 Va. App. 627, 633, 496 S.E.2d 120, 123 (1998).

In light of appellant's ownership of the vehicle, his position in

proximity to the drugs, the evidence that he owned the package of

Marlboros, and the testimony that he had given Whitmer drugs that

evening, we hold that the evidence was sufficient to prove beyond

a reasonable doubt that appellant possessed methamphetamine.

                               III.

     Appellant further contends the trial court erred in failing

to strike the evidence regarding the intent to distribute.     He

argues that the small amount of drugs recovered was consistent

with personal use and the evidence of intent to distribute was

highly speculative.   We disagree.

     "'Because direct proof of [the] intent [to distribute] is

often impossible, it must be shown by circumstantial evidence.'"

 Shears v. Commonwealth, 23 Va. App. 394, 402, 477 S.E.2d 309,

313 (1996) (quoting Servis v. Commonwealth, 6 Va. App. 507, 524,



                                 5
371 S.E.2d 156, 165 (1988)).   "The quantity of the controlled

substance is one factor to be considered.   A small quantity of

drugs, along with other circumstances, may support a conviction

of possession with intent to distribute."    Davis v. Commonwealth,

12 Va. App. 728, 733, 406 S.E.2d 922, 925 (1991).    Accord Stanley

v. Commonwealth, 12 Va. App. 867, 869, 407 S.E.2d 13, 14-15

(1991) ("a conviction for possession with the intent to

distribute may be upheld even though the quantity of drugs seized

is consistent with personal use").    "Indeed, where the facts

support a finding that a defendant has recently consummated a

sale or a distribution, that circumstance may support the

inference that the person in possession has an intent to

distribute drugs."    Id. at 873-74, 407 S.E.2d at 17.

     Whitmer testified that earlier that evening appellant had

cut bags of methamphetamine in his pocket and distributed them to

her and her sister.   She identified the packages taken from the

truck to be identical to the ones appellant possessed.    Moreover,

each of the two cut-corner baggies in the Marlboro package that

was found under appellant's seat in the truck contained

approximately 0.70 grams of methamphetamine and was tied with a

cut-length twist tie.   The officers also found empty baggies with

the corners cut off, cut-corner baggies, and twist ties.

Although the Commonwealth's expert admitted that the amount of

drugs was consistent with personal use, he stated that "people

that buy for personal use don't necessarily repackage their own



                                  6
personal use supply."   The expert testified that the presence of

the items such as twist ties and cut corners of baggies was not

consistent with personal use.   This circumstantial evidence of an

intent to distribute that flows from the packages, combined with

Whitmer's direct testimony that appellant supplied her with

methamphetamine on the night in question, was sufficient to prove

beyond a reasonable doubt that appellant had the intent to

distribute the methamphetamine in his possession.
     For the foregoing reasons, the conviction is affirmed.



                                                        Affirmed.




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