                   COURT OF APPEALS OF VIRGINIA


Present: Judges Baker, Benton and Senior Judge Hodges
Argued at Norfolk, Virginia


GRADY L. LEWTER, S/K/A
 GRADY LEVI LEWTER

v.        Record No. 2142-93-1          MEMORANDUM OPINION *
                                     BY JUDGE JOSEPH E. BAKER
COMMONWEALTH OF VIRGINIA                    MAY 9, 1995


         FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
                     Dennis F. McMurran, Judge
          Dianne G. Ringer, Assistant Public Defender
          (John H. Underwood, III, Public Defender, on brief),
          for appellant.

          Marla Lynn Graff, Assistant Attorney General
          (James S. Gilmore, III, Attorney General, on brief),
          for appellee.



     Grady L. Lewter (appellant) appeals from his bench trial

conviction by the Circuit Court of the City of Portsmouth for

possession of heroin with intent to distribute.   He contends that

the trial court erred when it permitted a police officer,

experienced in unlawful drug-transaction arrests, to testify that

the quantity of heroin in appellant's possession indicated an

inconsistency with possession for personal use.   In addition,

appellant asserts that the chemical sampling method employed is

insufficient to prove intent to distribute.

     We recite only the facts necessary to an understanding of

this opinion.   Portsmouth Detective K. A. Snipes (Snipes), an

     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
eight-year veteran of the Portsmouth Police Narcotics Unit,

arrested appellant on August 26, 1992.   Seventeen glassine

packets containing a white powder substance weighing 1.2 grams,

found in appellant's possession, were forwarded to a

Commonwealth's testing laboratory where Linda Fisher (Fisher), a

forensic scientist, conducted chemical tests on thirteen of the

seventeen packets.   Each of these proved to contain heroin.

     Fisher testified that the method she used to perform the

test, including testing thirteen of seventeen packets, is the

generally accepted method of testing and produces results that

are 99 percent certain.
     Appellant conceded that Snipes was an expert to testify in

the field of unlawful drug transactions but objected to the

following question to which Snipes was asked to respond:
          [A]ssuming there were no syringes, spoons,
          pipes, or anything of that nature, found on
          this person and assuming further there was no
          money found on this person, do you have an
          opinion as to whether or not this amount
          [referring to the 17 packets] is consistent
          with personal use?


Snipes responded that he had never arrested a mere user that had

seventeen packets of heroin on his person at the time of the

arrest and that possession of that number is inconsistent with

personal use.

     Appellant argues that Snipes's testimony constituted an

opinion as to the ultimate issue of fact when he stated that

personal possession of this quantity is inconsistent with



                               - 2 -
personal use.

     In Davis v. Commonwealth, 12 Va. App. 728, 406 S.E.2d 922

(1991), Davis was convicted by a jury of possessing more than

one-half ounce, but not more than five pounds, of marijuana with

intent to distribute in violation of Code § 18.2-248.1.    The

issue stated there was "whether the trial court erred in

admitting into evidence a police officer's expert testimony that,

based on his experience, an individual's possession of 6.88

ounces of marijuana is inconsistent with personal use."    The

identical argument made here was made to the Davis court.
Answering that the question was not an opinion on an ultimate

issue, the Court said:
          It is well settled, however, that an expert
          witness is not permitted to express an
          opinion as to an ultimate issue of fact that
          must be determined by the trier of fact. We
          must, therefore, determine whether Detective
          Lee's testimony violated this
          long-established rule.
            The Supreme Court of Connecticut considered
          a similar issue in State v. Williams, 169
          Conn. 322, 363 A.2d 72 (1975). There, the
          prosecutor asked the narcotics expert
          whether, in his experience, it would be usual
          or unusual to find a person who is solely a
          narcotics user in possession of as many as
          forty-five bags of heroin at one time. The
          expert replied that it would be unusual. The
          court held this testimony admissible, finding
          that the witness never expressed an opinion
          as to the ultimate issue of fact, that is,
          whether the defendant intended to distribute
          the narcotics he was found to possess. Id.
          at 334, 363 A.2d at 79.
            We reach the same result under the facts
          before us. Whether Davis was holding the
          6.88 ounces of marijuana with the intent to
          distribute was an ultimate issue of fact for
          the jury's determination. Detective Lee's



                              - 3 -
            testimony addressed the issue of what amount
            of this particular controlled substance is
            characteristically held by an individual for
            personal use. Under the facts presented, we
            find that Lee's testimony that the amount of
            6.88 ounces was inconsistent with an
            individual's personal use, based on what a
            user would normally buy or use at one time,
            did not constitute an opinion that Davis had
            an intent to distribute the marijuana found
            in his house.


Id. at 731-32, 406 S.E.2d at 923-24 (citation omitted).    For the

reasons stated in Davis, we find that Snipes's response was not

an opinion on an ultimate issue, therefore, it was not error to

admit it.
     Appellant further contends that the evidence is insufficient

to prove that he intended to distribute the heroin.   We disagree.

When appellant was arrested, he was concealing seventeen

glassine packets of heroin in his left pants leg.   A total weight

of 1.2 grams of heroin was determined.   Snipes testified that the

method of packaging this amount of heroin was customary in drug

distribution transactions, and possession of this amount was

inconsistent with personal use.   Those facts presented a jury

issue decided adversely to appellant.

     Appellant further argues that because only thirteen of the

seventeen packets were tested, the Commonwealth failed to prove

the intent necessary to support a distribution conviction.   We

disagree.   Fisher, a qualified forensic scientist, testified that

the method used to conduct the test for heroin was universally

recognized and produced results that were 99 percent certain as



                                - 4 -
to the entire amount found in appellant's possession.    That

evidence is sufficient to prove that all the bags contained

heroin and that the quantity in appellant's possession,

considered with the method of packaging and other testimony, was

sufficient for the trial court to find that appellant intended to

distribute the contraband.

     For the reasons stated, the judgment of the trial court is

affirmed.

                                             Affirmed.




                              - 5 -
BENTON, J., dissenting.

     The Supreme Court of Virginia has "consistently . . . held

that the admission of expert opinion upon an ultimate issue of

fact is impermissible because it invades the function of the fact

finder."   Llamera v. Commonwealth, 243 Va. 262, 264, 414 S.E.2d

597, 598 (1992).   The ultimate issue in this case was whether the

thirteen packets of heroin that Lewter possessed were for his

personal use or for distribution.    The police officer's testimony

that possession of that quantity was inconsistent with personal

use was an "opinion upon an ultimate issue of fact . . . [and,

thus,] an impermissible invasion of the function of the

factfinder."   Bond v. Commonwealth, 226 Va. 534, 538, 311 S.E.2d

769, 771-72 (1984).

     The Supreme Court has been firm in its holding that in

deciding the ultimate issue, "[t]he process of resolving

conflicting inferences, affected as it is by the credibility of

the witnesses who supply such evidence, is the historical

function of a jury drawn from a cross-section of the community."
 Id. at 538, 311 S.E.2d at 772.     See also Webb v. Commonwealth,

204 Va. 24, 33, 129 S.E.2d 22, 29 (1963); Newton v. City of

Richmond, 198 Va. 869, 875, 96 S.E.2d 775, 780 (1957).     Because

the testimony that was allowed in this case contravened these

well established rules, I would reverse the conviction and remand

for a new trial.




                               - 6 -
