                    COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Coleman and Bumgardner
Argued at Salem, Virginia


TERRY WAYNE JONES
                                         MEMORANDUM OPINION * BY
v.        Record No. 0830-97-3          JUDGE SAM W. COLEMAN III
                                               MAY 5, 1998
COMMONWEALTH OF VIRGINIA


         FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE
                     James F. Ingram, Judge
          Andrea C. Long (Boone, Beale, Cosby & Long,
          on brief), for appellant.

          Steven A. Witmer, Assistant Attorney General
          (Richard Cullen, Attorney General, on brief),
          for appellee.



     Terry Wayne Jones appeals his bench trial conviction for

possession of cocaine with the intent to distribute in violation

of Code § 18.2-248.   Conceding that he possessed cocaine, Jones

contends the evidence is insufficient to prove that he intended

to distribute the cocaine.   Finding the evidence sufficient, we

affirm the conviction.

     Proof of an accused's "specific intent" to distribute a

controlled substance is essential to a conviction under Code

§ 18.2-248.   See Servis v. Commonwealth, 6 Va. App. 507, 524, 371

S.E.2d 156, 165 (1988).    Because the specific intent to

distribute a controlled substance is difficult to establish

through direct evidence, the Commonwealth may, and frequently

     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
must, rely on circumstantial evidence to prove that intent.     See

Wilkins v. Commonwealth, 18 Va. App. 293, 298, 443 S.E.2d 440,

444 (1994) (en banc).   When the Commonwealth relies on

circumstantial evidence, "'all necessary circumstances proved

must be consistent with guilt and inconsistent with innocence and

exclude every reasonable hypothesis of innocence.'"   Pemberton v.

Commonwealth, 17 Va. App. 651, 655, 440 S.E.2d 420, 422 (1994)

(quoting Garland v. Commonwealth, 225 Va. 182, 184, 300 S.E.2d

783, 784 (1983)).
     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).   "The judgment of

a trial court sitting without a jury is entitled to the same

weight as a jury verdict and will not be set aside unless it

appears from the evidence that the judgment is plainly wrong or

without evidence to support it."   Id.
     Viewed accordingly, the evidence proved that City of

Danville Police Officer Ricky Luck employed an undercover

informant to make a controlled drug purchase at Jones' house.

Luck recorded the serial number on a twenty dollar bill and gave

the bill to the informant to use in the controlled purchase.

Luck watched the informant enter the house and return with two

rocks of cocaine.

     Based on the informant's purchase, Luck obtained and




                               - 2 -
executed a warrant to search Jones' house the next day.   During

the search, Luck asked Jones whether he was in possession of any

drugs.   Jones responded that he was.   Luck then searched Jones

and recovered a pill bottle containing fifteen rocks of cocaine,

weighing approximately 1.2 grams, and a baggie containing

approximately 0.18 grams of cocaine.    He also found over $757 in

small denomination bills in Jones' pants pockets, including a

twenty dollar bill bearing the same serial number as the twenty

dollar bill that Luck had given to the informant to purchase

cocaine at Jones' house a day earlier.
     Appellant denied knowledge of the informant's controlled

drug purchase, but admitted possessing the cocaine that Luck

found in his pockets.   Appellant claimed that the cocaine was for

his personal use.   He testified that he received $423 per month

in Social Security disability income and that he possessed $757

in cash because he had just cashed his Social Security check.      He

also testified that a friend had used his house to entertain a

guest on the night of the informant's purchase and the friend had

given him a twenty dollar bill for letting him do so.

     The circumstantial evidence supports the trial court's

finding that Jones possessed the cocaine with the specific intent

of distributing it.   Although the Commonwealth offered no

evidence to prove that the quantity of cocaine found in Jones'

possession was inconsistent with personal use, even a relatively

small quantity of drugs when considered in conjunction with other




                               - 3 -
circumstances may support a finding of an intent to distribute.

See Early v. Commonwealth, 10 Va. App. 219, 222, 391 S.E.2d 340,

341-42 (1990).   Luck recovered $757 in small denomination bills

from Jones' pockets.   We have consistently recognized that an

accused's possession of a significant amount of cash, especially

in small denominations, may be considered by the fact finder as

evidence sufficient to prove an intent to distribute.    See White

v. Commonwealth, 25 Va. App. 662, 668, 492 S.E.2d 451, 454 (1997)

(en banc); Servis v. Commonwealth, 6 Va. App. 507, 524, 371
S.E.2d 156, 165 (1988).   Furthermore, in this case, the jury

could infer that appellant was selling drugs in light of the fact

that the amount of cash found in his possession was significant

in comparison to appellant's disability income of $423 per month.

Also, Jones' possession of the "marked" twenty dollar bill

supports the inference that Jones sold the two rocks of cocaine

to the informant and intended to sell the rocks of cocaine found

in his possession.   "A finder of fact may infer from evidence of

a recent sale of a controlled substance, related by time and

place to a similar substance still in the seller's possession,

that the seller intended to distribute the substance he or she

still possessed."    Werres v. Commonwealth, 19 Va. App. 744, 749,

454 S.E.2d 36, 39 (1995).   Furthermore, the trial court was

entitled to reject Jones' testimony explaining how the large

amount of cash, including the "marked" currency, came into his

possession and that he possessed the cocaine for his personal




                                - 4 -
use.    See Black v. Commonwealth, 222 Va. 838, 842, 284 S.E.2d

608, 610 (1981).

       Considering the totality of the circumstances and the

reasonable inferences fairly deducible from the evidence, we

cannot say that the trial court's conclusion that Jones possessed

the cocaine with the specific intent to distribute is plainly

wrong or without evidence to support it.   Accordingly, the

evidence is sufficient to support the conviction, and we affirm.
                                                         Affirmed.




                                - 5 -
Benton, J., dissenting.


     When the Commonwealth's "evidence of intent is wholly

circumstantial, 'all necessary circumstances proved must be

consistent with guilt and inconsistent with innocence and exclude

every reasonable hypothesis of innocence.'"     Dukes v.

Commonwealth, 227 Va. 119, 122, 313 S.E.2d 382, 383 (1984)

(citation omitted).   "Where inferences are relied upon to

establish guilt, they must point to guilt so clearly that any

other conclusion would be inconsistent therewith."     Dotson v.

Commonwealth, 171 Va. 514, 518, 199 S.E. 471, 473 (1938).      Thus,

it follows that the "[e]xistence of the intent [to distribute]

. . . cannot be based upon surmise or speculation," Patterson v.

Commonwealth, 215 Va. 698, 699, 213 S.E.2d 752, 753 (1975), and

must be proved beyond a reasonable doubt.     See Smith v.

Commonwealth, 16 Va. App. 626, 628, 432 S.E.2d 1, 2 (1993).

     The evidence proved that the day before Terry Jones was

arrested, a police informant with a marked twenty dollar bill

entered the residence where Jones lived.    The officer who gave

the informant the money testified that he heard several people in

the residence.    However, no evidence proved that Jones was

present.   After the informant left the residence, he gave the

police cocaine.   No evidence proved how the informant obtained

the cocaine or who was in the residence when the informant

entered.   No evidence proved that Jones was the only person who

lived in the residence.



                                - 6 -
     The next day, the police obtained a warrant and entered

Jones' residence.   Jones was in the residence with a woman.

Although Jones had cocaine in his pocket, no evidence proved that

Jones possessed an amount of cocaine that was inconsistent with

personal use.   The circumstances of Jones' possession of the

cocaine are as consistent with his intent to use the cocaine as

they are with an intent to distribute.     See Hunter v.

Commonwealth, 213 Va. 569, 571, 193 S.E.2d 779, 780 (1973).

Indeed, the relatively small quantity of cocaine found warrants

the inference that Jones possessed it for his personal use.     See

Dukes, 227 Va. at 122, 313 S.E.2d at 384.

     No other evidence tended to prove an intent to distribute.

The packaging of cocaine was not unique.    "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."    Id. at 123, 313 S.E.2d at 384.   No evidence proved

that Jones had scales, baggies, twist ties, a ledger of accounts,

or any other paraphernalia usually associated with distribution

of cocaine.

     The majority suggests the trier of fact could have inferred

that Jones intended to distribute the drugs from the fact that

Jones also possessed a quantity of money that was less than twice

his monthly income.   Even if the trier of fact rejected Jones'

uncontradicted explanation of the legitimate source of his income

and Jones' testimony that the money was to pay his household



                                - 7 -
bills, the record contains no proof that the money came from the

sale of illegal drugs.   Jones had money in his residence and had

a legitimate source of income.    His guilt cannot be established

by inferring that his possession of more than a pittance of funds

proves he must be engaged in selling drugs.     The inference the

majority uses to establish Jones' guilt is purely speculative.

       "Where inferences are relied upon to establish guilt, they

must point to guilt so clearly that any other conclusion would be

inconsistent therewith."    Dotson, 171 Va. at 518, 199 S.E. at

473.   People of modest means are not incapable of saving money

and do not always exhaust their income each month.     Moreover, the

evidence proved that Jones, a drug user, had a legitimate source

of income.   His guilt cannot be established by proving he had

money in his home.   Under the majority's thesis, every gainfully

employed drug user can be found guilty of possession with intent

to distribute by simultaneously possessing drugs and the proceeds

of his or her last legitimate paycheck.

       It is well settled in Virginia that "[w]henever the evidence

leaves indifferent which of several hypotheses is true, or merely

establishes some finite probability in favor of one hypothesis,

such evidence does not amount to proof beyond a reasonable

doubt."    Sutphin v. Commonwealth, 1 Va. App. 241, 248, 337 S.E.2d

897, 900 (1985) (citation omitted).      Although the evidence may be

suspicious, or may even make it probable that Jones intended to

distribute the cocaine, such circumstantial evidence is not




                                 - 8 -
sufficient to support a criminal conviction for possession of the

cocaine with intent to distribute.       Suspicious circumstances

alone are insufficient to sustain a conviction for possession of

drugs with an intent to distribute.       See Garland v. Commonwealth,

225 Va. 182, 184, 300 S.E.2d 783, 784 (1983); Wright v.

Commonwealth, 217 Va. 669, 670, 232 S.E.2d 733, 734 (1977).         "[A]

conviction based upon a mere suspicion or probability of guilt,

however strong, cannot stand."     Bridgeman v. Commonwealth, 3 Va.

App. 523, 528, 351 S.E.2d 598, 601-02 (1986).
     For these reasons, I would reverse the conviction.




                                 - 9 -
