                    COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Moon, Judges Benton and Elder
Argued at Richmond, Virginia


JAMES LAVOR SMITH
                                      MEMORANDUM OPINION * BY
v.   Record 2177-95-2               CHIEF JUDGE NORMAN K. MOON
                                         JANUARY 14, 1997
COMMONWEALTH OF VIRGINIA


           FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
                     William R. Shelton, Judge
           R. Donald Ford, Jr., for appellant.

           Eugene Murphy, Assistant Attorney General
           (James S. Gilmore, III, Attorney General, on
           brief), for appellee.



     James Lavor Smith contends that the evidence was

insufficient to support his convictions of grand larceny of an

automobile and possession of cocaine with the intent to

distribute.   Because the evidence disclosed that Smith did not

actually steal the automobile, and the evidence did not exclude

as a reasonable hypothesis that Smith did not know the automobile

was stolen, we hold that the evidence was insufficient to support

the grand larceny conviction.   On the other hand, we hold that

the evidence was sufficient to prove that Smith possessed the

cocaine.   However, we hold that the evidence was insufficient to

exclude as a reasonable hypothesis that he possessed it for his

personal use.

     On the night of February 21, 1995, a Chesterfield County
     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
police officer observed a car in a convenience store parking lot

in a "known drug area."    A license number check revealed that the

car had been reported stolen.    The officer turned around and

entered the parking lot where he detained Smith who was returning

to the vehicle from a nearby pay phone.    The officer ordered

Smith to lie face down with his arms spread on the car's trunk.

The officer then handcuffed Smith and moved him away from the

car.    After moving Smith, the officer noticed a bag containing

smaller packets of a substance later identified as cocaine lying

on the trunk "right where [he] had put [Smith]."    The officer did

not see the bag on the trunk before he placed Smith there.      The

officer searched Smith and found a small amount of marijuana, $63

in cash, a beeper, and another person's identification card.

Smith denied having any knowledge of the cocaine and explained

that he had gotten the car that evening from a woman named Pat in

Petersburg.    However, he could not provide Pat's last name but

said that she lived on South Street.
        The owner of the automobile, Debra Howard, testified that

she had loaned the automobile to her brother and that it was

stolen from him in Petersburg by a woman named Pat approximately

one week before Smith's arrest.    Howard's brother did not

testify.    The arresting officer testified that there was no

damage to the car's steering column and that Smith had the car's

keys.



                          Larceny of the Car

                                 - 2 -
     The Commonwealth's evidence proved that a person named Pat

stole the vehicle in Petersburg and that Smith got the vehicle

from a woman named Pat in Petersburg.    The evidence does not

reveal whether he got it for his permanent possession or whether

he borrowed it for the evening.    There were no circumstances

suggesting that Smith should have known that the vehicle was

stolen.   He had the car's keys, and it had not been damaged.

Compare Spitzer v. Commonwealth, 233 Va. 7, 353 S.E.2d 711

(1987).
     Accordingly, we hold that the evidence was insufficient to

prove that Smith stole the vehicle or possessed it knowing it had

been stolen.

                         Possession of Cocaine

     We hold that the evidence was sufficient for a rational

finder of fact to believe beyond a reasonable doubt that Smith

placed the drugs on the trunk.    Smith's suggested hypothesis that

someone else placed them there after he stopped the car and

before the police officer put him up against the trunk is not a

reasonable hypothesis that flows from the evidence in the case.

The officer, who was in a position to see anything on the trunk,

saw nothing on it before ordering Smith to lie against the trunk.

The officer had not searched Smith prior to ordering him onto

the trunk.     The officer's relevant testimony was as follows:
                   Q And where was [the bag containing
             cocaine] located in relation to where he had
             been?
                   A That's exactly right where I had put
             him.

                                 - 3 -
               Q Had there been any substance there
          before you put him on the trunk?

               A    Not that I saw, no, sir.

               Q Okay. And you were in a position
          where you could be able to see if there had
          been anything?

               A    Yes, sir.   I was right behind.


                        Intent to Distribute

      "Because direct proof of intent is often impossible, it

must be shown by circumstantial evidence.      But '[w]here . . . the

Commonwealth's evidence of intent to distribute is wholly

circumstantial, "all necessary circumstances proved must be

consistent with guilt and inconsistent with innocence and exclude

every reasonable hypothesis of innocence."'"      Servis v.

Commonwealth, 6 Va. App. 507, 524, 371 S.E.2d 156, 165 (1988)

(quoting Wells v. Commonwealth, 2 Va. App. 549, 551, 347 S.E.2d

139, 140 (1986)).   Circumstantial proof of a defendant's intent

includes the quantity of the drug discovered, the packaging of

the drugs, and the presence or absence of drug paraphernalia.
Id. at 524-25, 371 S.E.2d at 165.

     Here, Smith possessed a beeper, an item routinely classified

as a tool of the drug trade.     Wilkins v. Commonwealth, 18 Va.

App. 293, 443 S.E.2d 440 (1994) (en banc).      Smith also possessed

cash in the sum of $63.    We have concluded that, considered with

other factors, possession of currency by a defendant may be

considered in determining whether they possessed drugs with an

intent to distribute.     See Colbert v. Commonwealth, 219 Va. 1,


                                 - 4 -
244 S.E.2d 748 (1978).   However, here Smith had only $63 on his

person, unlike the defendant in Colbert, who was found with

approximately $200 in various denominations stuffed in his

pockets.   No details concerning Smith's money are of record.    The

possession of $63 is not significant.

        Regarding packaging of the drugs, the record indicates

Smith possessed thirty-one separate plastic baggies containing

some cocaine.   The quantity and packaging of an illegal substance

are regularly recognized circumstantial indicators of a

defendant's intent.    Servis, 6 Va. App. at 524-25, 371 S.E.2d at

165.   Whether each bag contained residue or a significant amount

of cocaine does not appear of record.    The certificate shows a

total weight of 1.18 grams.   The Assistant Commonwealth's

Attorney at the end of the officer's testimony stated, "I move

for the introduction of the items that the officer has there: the

money, the lighter, the pager, the substance itself that was

recovered and also the lab report filed with the court papers."

There is no recorded response by the court or defense counsel.

Apparently, none of these items were referred to by exhibit

numbers or marked as exhibits.    They were not admitted in

evidence and thus are not part of the record of the case.      Since

the certificate of analysis was discussed and treated as if

admitted, we may consider it.     Griswold v. Commonwealth, 19 Va.

App. 477, 480, 453 S.E.2d 287, 288-89 (1995).

       Unfortunately, since the drugs were not admitted into

evidence and are not part of the record, we cannot see what the
                                 - 5 -
trial court might have seen.     See Brittle v. Commonwealth, 222

Va. 518, 522-23, 281 S.E.2d 889, 890 (1981).    Moreover, there was

no expert testimony as to the significance of the weight or

packaging to aid the fact finder in determining whether the

cocaine was for personal use or distribution.    There was no

evidence of what daily use may consist of or the weight of a

single dose.     See Dukes v. Commonwealth, 227 Va. 119, 123, 313

S.E.2d 382, 384 (1984).    The illegal use of narcotics is not yet

so well known and a matter of common knowledge that the courts

may resort to judicial notice to fill in the gaps in the

Commonwealth's proof.     See 2 Charles E. Friend, The Law of

Evidence in Virginia, 19-1 (4th ed. 1993).

     Expert testimony, usually that of a police officer familiar

with narcotics, is routinely offered to prove the significance of

the weight and packaging of drugs regarding whether it is for

personal use.     See Hetmeyer v. Commonwealth, 19 Va. App. 103, 448

S.E.2d 894 (1994); Rodriguez v. Commonwealth, 18 Va. App. 277,

443 S.E.2d 419 (1994); Poindexter v. Commonwealth, 16 Va. App.
730, 432 S.E.2d 527 (1993).    Here, because there was no such

evidence, there was insufficient evidence to exclude beyond a

reasonable doubt that the possession was merely for personal use.



     Accordingly, Smith's conviction of grand larceny is reversed

and dismissed.    His conviction for possession of cocaine with the

intent to distribute is reversed and remanded to the trial court

for further proceedings on the charge of possession of cocaine,

                                 - 6 -
if the Commonwealth be so advised.

                                      Reversed.




                              - 7 -
Benton, J., concurring and dissenting.



     I concur in the opinion except for (1) the section styled

"Possession of Cocaine" and (2) the judgment affirming that

conviction.

     The testimony of the officer who seized Smith was

insufficient to prove beyond a reasonable doubt that Smith

possessed the cocaine that the officer found on the rear of the

automobile.   Although the officer watched Smith closely, the

following excerpt from his testimony proved that the officer did

not observe the trunk of the automobile with care:
          Q Okay. Describe, please, if you would what
          happened when you made that particular stop?

          A [Smith] was at the pay phone. There was
          another gentleman that was in the passenger
          side of the car. And, I, at gun-point, I
          ordered . . . [Smith] on to the back of the
          trunk of the vehicle laying down with his
          hands out on the vehicle like this. It was a
          chilly night and he had a coat on. At that
          point I approached [Smith], I holstered my
          weapon, and handcuffed him. When I
          handcuffed him, I took him and put him beside
          the car and held the other gentleman at
          gun-point until Officer Townsend arrived, my
          backup.

          Q Okay. And what did you find after Officer
          Townsend arrived?

          A When I was going to pick . . . Mr. Smith,
          from the ground, I noticed on the back of the
          car right where I put him was a bag of white
          powder, rocks.

          Q And where was that located in relation to
          where he had been?

          A   That's exactly right where I had put him.

          Q   Had there been any substance there before

                               - 8 -
           you put him on the trunk?

           A   Not that I saw, no, sir.

           Q Okay. And you were in a position where
           you could be able to see if there had been
           anything?

           A   Yes, sir.   I was right behind.


     The officer's testimony that he was "in a position . . .

[to] be able to see" is insufficient to prove that the cocaine

was not already on the trunk when the officer spread Smith on the

trunk.   The officer testified that before he spread Smith on the

trunk he "wasn't consciously looking at [the trunk]."     Indeed,

after the officer handcuffed Smith and moved Smith onto the

ground, he did not see the cocaine.      He watched Smith and the

passenger and waited for Officer Townsend to arrive.
     Officer Townsend testified as follows:
          When I arrived, Officer Francis had [Smith]
          on the back of the car. I observed another
          subject on the passenger side of the car
          laying face down. At that time Officer
          Francis put [Smith] in handcuffs and he told
          me to watch the second one. He walked
          [Smith] to his car. At that time after he
          put him in the car, I approached the second
          suspect, placed him in handcuffs, got him up,
          and as I was walking by the car, trunk of the
          car, I noticed a white, a clear plastic bag
          containing some white substance.


     Even if the trier of fact could ignore the patent conflict

in the officers' testimony regarding Smith's position and which

officer first saw the cocaine, the testimony of both officers

proves that neither of them carefully observed the trunk of the

vehicle until well after Smith was off the trunk.


                                 - 9 -
     This evidence simply fails to prove beyond a reasonable

doubt that the cocaine was not on the trunk before the officer

put Smith on the trunk.   Furthermore, the principle is well

established that "[t]he burden was on the Commonwealth to prove

beyond a reasonable doubt that [Smith] was aware of the presence

and character of the [cocaine] and was intentionally and

consciously in physical or constructive possession of it."

Wright v. Commonwealth, 217 Va. 669, 670, 232 S.E.2d 733, 734

(1977).   Here, the evidence proved only that the officers found

cocaine on the trunk after Smith was put there by the officers

and after Smith had been moved away to the police vehicle.     The

inferences that rise from that evidence fail to prove beyond a

reasonable doubt that Smith put the cocaine on the trunk or

possessed the cocaine.
     For these reasons, I would reverse all the convictions.




                              - 10 -
