                  COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Clements and Agee
Argued at Richmond, Virginia


CHARLES DELK
                                           MEMORANDUM OPINION * BY
v.   Record No. 2498-00-2                   JUDGE LARRY G. ELDER
                                              DECEMBER 27, 2001
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                    James B. Wilkinson, Judge

          Gregory W. Franklin, Assistant Public
          Defender (Office of the Public Defender, on
          brief), for appellant.

          Marla Graff Decker, Assistant Attorney
          General (Randolph A. Beales, Attorney
          General, on brief), for appellee.


     Charles Delk (appellant) appeals from his bench trial

conviction for possession of cocaine with intent to distribute.

We hold the evidence, viewed in the light most favorable to the

Commonwealth, provided reasonable suspicion that appellant was

trespassing and supported a finding that he possessed the

cocaine found on his person with an intent to distribute it, and

we affirm the conviction.




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

                         MOTION TO SUPPRESS

     On appeal of the denial of a motion to suppress, we view

the evidence in the light most favorable to the Commonwealth.

Commonwealth v. Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d

47, 48 (1991).   "[W]e are bound by the trial court's findings of

historical fact unless 'plainly wrong' or without evidence to

support them," McGee v. Commonwealth, 25 Va. App. 193, 198, 487

S.E.2d 259, 261 (1997) (en banc), but we review de novo the

trial court's application of defined legal standards such as

reasonable suspicion to the particular facts of the case, see

Ornelas v. United States, 517 U.S. 690, 699, 116 S. Ct. 1657,

1663, 134 L. Ed. 2d 911 (1996).

     In order to justify a Terry stop, an officer must have a

"reasonable and articulable suspicion of criminal activity on

the part of the defendant."   Commonwealth v. Holloway, 9 Va.

App. 11, 15, 384 S.E.2d 99, 101 (1989).   An officer who develops

such a reasonable suspicion may stop a person "in order to

identify him, to question him briefly, or to detain him briefly

while attempting to obtain additional information" to confirm or

dispel his suspicions.   Hayes v. Florida, 470 U.S. 811, 816, 105

S. Ct. 1643, 1647, 84 L. Ed. 2d 705 (1985).

     An officer may not search a suspect simply because he is

effecting a Terry stop, see, e.g., Adams v. Williams, 407 U.S.

143, 146, 92 S. Ct. 1921, 1923, 32 L. Ed. 2d 612 (1972), but he

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may do so if he obtains the suspect's consent, see, e.g.,

Reynolds v. Commonwealth, 9 Va. App. 430, 439, 388 S.E.2d 659,

665 (1990).    "The mere fact that a person is in custody at the

time he . . . consents to a search is not sufficient in itself

to demonstrate a coerced consent to search."      Id.; see Gray v.

Commonwealth, 233 Va. 313, 327, 356 S.E.2d 157, 164 (1987)

(holding fact that suspect was under arrest and in handcuffs did

not prevent him from giving valid consent for search of his

car).    The question whether "a consent to a search was in fact

'voluntary' or was the product of duress or coercion, express or

implied, is a question of fact to be determined from the

totality of all the circumstances."      Schneckloth v. Bustamonte,

412 U.S. 218, 227, 93 S. Ct. 2041, 2048, 36 L. Ed. 2d 854

(1973).    The Commonwealth bears the burden of proving

voluntariness by a preponderance of the evidence.      See Camden v.

Commonwealth, 17 Va. App. 725, 727, 441 S.E.2d 38, 39 (1994).

        The evidence here, viewed in the light most favorable to

the Commonwealth, provided Officer LaMonte P. Tucker with

reasonable suspicion to believe appellant was trespassing, which

justified Officer Tucker's decision to place appellant under

investigative detention while he attempted to obtain additional

information to confirm or dispel his suspicions.     During a

consensual encounter, appellant told Officer Tucker he was

visiting his girlfriend, but he merely "pointed in the general

direction of a building" in which he claimed his girlfriend

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resided.   Appellant did not identify a specific building or

provide his girlfriend's address or apartment number when

requested to do so.   Appellant also said his companion was his

cousin, but appellant was unable to give his companion's last

name and then admitted that the companion was not, in fact, his

cousin.    Appellant's continued inability to justify his presence

on the premises during the consensual encounter provided Officer

Tucker with reasonable suspicion to detain appellant briefly in

order to investigate further.

       In addition, the evidence supported the trial court's

finding that appellant's consent to the search was voluntary.

The encounter occurred in broad daylight.   Although it involved

two uniformed officers, only Officer Tucker approached

appellant, and neither officer exhibited any other show of

authority until Officer Tucker told appellant he was placing him

under investigative detention.    Appellant was "[p]retty calm"

once detained, and Officer Tucker obtained permission to

handcuff appellant, telling appellant specifically that he was

not under arrest.   When appellant said, "[Y]es," to Tucker's

inquiry about whether he minded if Tucker searched him, Tucker

inquired again, this time rephrasing his question to determine

whether appellant's response indicated that Tucker could search

him or instead indicated that he would mind if Tucker searched

him.   When Tucker asked appellant two more times, "I can search



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you?", appellant responded, "[Y]es," making clear to Tucker that

he consented to be searched.

     Thus, the evidence, viewed in the light most favorable to

the Commonwealth, supported the trial court's express finding

that there was "no coercion whatsoever," and we hold the trial

court's denial of the motion to suppress was not erroneous.

                                  B.

         SUFFICIENCY OF EVIDENCE TO PROVE INTENT TO DISTRIBUTE

     We examine the evidence in the light most favorable to the

Commonwealth, granting to its evidence all reasonable inferences

fairly deducible therefrom.     See, e.g., Higginbotham v.

Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975).

Circumstantial evidence is as competent as direct evidence to

prove the elements of a crime as long as the evidence as a whole

excludes all reasonable hypotheses of innocence flowing from it.

See, e.g., Tucker v. Commonwealth, 18 Va. App. 141, 143, 442

S.E.2d 419, 420 (1994).    Intent may be proved by circumstantial

evidence, including the quantity of drugs and cash possessed,

the method of packaging, and whether appellant himself used

drugs.     Servis v. Commonwealth, 6 Va. App. 507, 524, 371 S.E.2d

156, 165 (1988); Hambury v. Commonwealth, 3 Va. App. 435, 438,

350 S.E.2d 524, 525 (1986).

     Officer David Naoroz, who qualified as an expert in street

level narcotics packaging and distribution, testified that

appellant's possession of 1.626 grams of cocaine packaged in

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twelve individual packages without simultaneous possession of a

smoking device was inconsistent with personal use because

someone using that quantity of drugs himself "would usually buy

that amount [in] a few [big] chunks, not 12 [smaller] chunks"

and would have a smoking device in his possession.   The evidence

also established that appellant, who had no job, was found in

possession of more than two hundred dollars in cash.    Thus, the

only reasonable hypothesis flowing from the evidence, viewed in

the light most favorable to the Commonwealth, was that appellant

possessed the cocaine with the intent to distribute it rather

than use it himself.

     For these reasons, we hold that the trial court's denial of

appellant's motion to suppress was not erroneous and that the

evidence was sufficient to prove appellant intended to

distribute the crack cocaine found in his possession.

Therefore, we affirm his conviction.

                                                          Affirmed.




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