                        COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Willis and Clements
Argued at Richmond, Virginia


MICHAEL LAMONT FOSTER
                                            MEMORANDUM OPINION * BY
v.   Record No. 0336-01-2                 JUDGE JAMES W. BENTON, JR.
                                               FEBRUARY 12, 2002
COMMONWEALTH OF VIRGINIA


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

             Craig W. Stallard, Assistant Public Defender
             (Office of the Public Defender, on brief),
             for appellant.

             Linwood T. Wells, Jr., Assistant Attorney
             General (Randolph A. Beales, Attorney
             General, on brief), for appellee.


     The trial judge convicted Michael Lamont Foster of possession

of cocaine with the intent to distribute in violation of Code

§ 18.2-248.    Foster contends the evidence was insufficient to

prove intent to distribute.    We agree, and we reverse the

conviction.

                                 I.

     The evidence at trial proved that Officer Jason Reese

investigated a report of a suspicious man sitting on a porch and

that, when he arrived at the location, he saw Foster sitting on

the steps.    He detained and questioned Foster because Foster was

     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
very intoxicated.   After Foster gave the officer several false

names and social security numbers, the officer arrested him for

public drunkenness and searched him incident to that arrest.

During the search, the officer seized "four individual rocks [of

cocaine] packaged in four baggie corners" and one hundred and

twelve dollars.

     At the conclusion of the evidence, Foster's attorney argued

that the evidence failed to prove intent to distribute and made a

motion to strike the evidence.    The trial judge ruled that by

applying his "common sense" and judicial experience he did not

"have any question looking at the amount of the cocaine that it's

more than users have."   Accordingly, he denied the motion and

convicted Foster of possession of cocaine with the intent to

distribute.

                                 II.

     Foster contends the evidence failed to prove an intent to

distribute and that the trial judge impermissibly relied upon his

knowledge from other cases to infer an intent to distribute.      The

Commonwealth argues that Foster possessed an amount of cocaine

greater than ordinarily used for personal use and had a "somewhat

large amount of cash" in small denominations.   Thus, it contends

the evidence was sufficient to prove his intent to distribute the

cocaine.

     "[T]o convict appellant for having violated Code § 18.2-248,

[the Commonwealth] was required to prove beyond a reasonable doubt

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that appellant knowingly possessed cocaine with the intent to

distribute it."   Wilson v. Commonwealth, 16 Va. App. 213, 219, 429

S.E.2d 229, 233 (1993).

              If 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."
           When the proof of intent to distribute
           narcotics rests upon circumstantial
           evidence, the quantity which the defendant
           possesses is a circumstance to be
           considered. Indeed, quantity, alone, may be
           sufficient to establish such intent if it is
           greater than the supply ordinarily possessed
           for one's personal use. However, possession
           of a small quantity creates an inference
           that the drug was for the personal use of
           the defendant.

Dukes v. Commonwealth, 227 Va. 119, 122, 313 S.E.2d 382, 383

(1984) (citations omitted).

     No evidence in this record explains the significance of

"four individual rocks packaged in four baggie corners," which

had a total weight of 2.6 grams.   "Existence 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).   No testimony established facts that would allow a trier

of fact to discern whether the packaging or amount was

indicative of personal use or intent to distribute.    See Wells

v. Commonwealth, 2 Va. App. 549, 552-53, 347 S.E.2d 139, 141

(1986).   Likewise, no testimony establishes that "four twenties,

two tens, two fives, and two one dollar bills" was an unusual


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manner to have the cash or was so large an amount as to be

manifestly greater than an individual might ordinarily possess.

Based on the evidence in the record, "[i]t is just as plausible

that [Foster] . . . purchased the packaged substance for

personal use as it is that . . . [he] packaged [it] . . . for

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

     We agree with Foster that the trial judge impermissibly

relied upon his own knowledge of proof in other cases to infer

an intent to distribute.

             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. In other words, the individual
          and extrajudicial knowledge on the part of a
          judge will not dispense with proof of facts
          not judicially cognizable, and cannot be
          resorted to for the purpose of supplementing
          the record."

Darnell v. Barker, 179 Va. 86, 93, 18 S.E.2d 271, 275 (1942)

(citation omitted).

     For these reasons, we hold that the evidence failed to

prove beyond a reasonable doubt that Foster possessed the

cocaine with the intent to distribute.   Therefore, we reverse

the conviction.

                                                         Reversed.




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