                  COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Fitzpatrick, Judges Benton and Kelsey
Argued at Richmond, Virginia


SHAWN SPRATLEY, S/K/A
 SHAWN ALEXANDER SPRATLEY
                                           MEMORANDUM OPINION * BY
v.   Record No. 0533-02-2                  JUDGE D. ARTHUR KELSEY
                                                MAY 20, 2003
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF THE CITY OF HOPEWELL
                       James A. Luke, Judge

          (Christopher B. Ackerman, on brief), for
          appellant. Appellant submitting on brief.

          Amy L. Marshall, Assistant Attorney General
          (Jerry W. Kilgore, Attorney General, on
          brief), for appellee.


     Shawn Alexander Spratley claims that the trial court lacked

sufficient evidence to find him guilty beyond a reasonable doubt

of possessing cocaine with intent to distribute in violation of

Code § 18.2-248(A).   We disagree and affirm the conviction.

                               I.

      On appeal, we review the evidence "in the light most

favorable to the Commonwealth."     Morrisette v. Commonwealth, 264

Va. 386, 389, 569 S.E.2d 47, 50 (2002).    That principle requires

us to "discard the evidence of the accused in conflict with that


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
of the Commonwealth, and regard as true all the credible

evidence favorable to the Commonwealth and all fair inferences

that may be drawn therefrom."     Holsapple v. Commonwealth, 39

Va. App. 522, 528, 574 S.E.2d 756, 758-59 (2003) (en banc)

(citation omitted); see also Wactor v. Commonwealth, 38 Va. App.

375, 380, 564 S.E.2d 160, 162 (2002).

     While patrolling in separate police cruisers, Hopewell

Police Sergeant James Hamilton and Detective George Burgess

received a dispatch to be on the lookout for Spratley, a "wanted

subject" that police believed would be in a particular vehicle

at a gas station in Hopewell.    The officers drove to the gas

station and stopped the vehicle described in the dispatch.        They

ordered the driver and Spratley, a passenger, to exit the

vehicle and raise their hands.    The driver immediately complied.

Spratley, however, began "making movements with his left hand"

and appeared to be "lifting" and "digging" to his left in the

center of the vehicle.

     As Sergeant Hamilton approached the vehicle, Spratley

turned to face him but continued digging in between the driver

and passenger seat.   While Sergeant Hamilton removed Spratley

from the vehicle, Spratley made "a movement with his left hand

towards the center of the vehicle."      Moments later, at that

exact location, the officers found a plastic bag containing

twelve individually packaged bag corners of rock cocaine.



                                 - 2 -
     At trial, Sergeant Hamilton testified as an expert on

personal drug use and concluded that the possession of twelve

individually packaged bags of rock cocaine was inconsistent with

personal use.     Although no cell phone, pager or money was found

on Spratley, Sergeant Hamilton testified that experienced drug

dealers no longer carry all three items on their person.      Today,

he explained, it is common for these items to be divided among

several individuals to avoid any association of the use of those

items with drug trafficking.

      Following the Commonwealth's presentation of the evidence,

Spratley moved to strike the evidence, claiming that it was

insufficient to prove that he either possessed the cocaine or that

he intended to distribute it.    The trial judge denied the motion

and found that "the defendant did have constructive possession of

these drugs" and that "twelve individually wrapped rocks of

cocaine are sufficient evidence of possession with intent to

distribute."    Spratley received a fifteen-year sentence, with

twelve years and six months suspended.

                                II.

     Under settled principles, we "presume the judgment of the

trial court to be correct" and reverse on sufficiency grounds

only if the trial court's decision is "plainly wrong or without

evidence to support it."    Davis v. Commonwealth, 39 Va. App. 96,

99, 570 S.E.2d 875, 876-77 (2002) (citations omitted); see also


                                - 3 -
McGee v. Commonwealth, 25 Va. App. 193, 197-98, 487 S.E.2d 259,

261 (1997) (en banc).

     When a jury decides the case, Code § 8.01-680 requires that

"we review the jury's decision to see if reasonable jurors could

have made the choices that the jury did make."    Pease v.

Commonwealth, 39 Va. App. 342, 355, 573 S.E.2d 272, 278 (2002)

(en banc).   "We let the decision stand unless we conclude no

rational juror could have reached that decision."    Id.     The same

standard applies when a trial judge sits as the fact finder

because "the court's judgment is accorded the same weight as a

jury verdict."   Shackleford v. Commonwealth, 262 Va. 196, 209,

547 S.E.2d 899, 907 (2001).

     Put another way, when faced with a challenge to the

sufficiency of the evidence, a reviewing court does not "ask

itself whether it believes that the evidence at the trial

established guilt beyond a reasonable doubt."    Jackson v.

Virginia, 443 U.S. 307, 318-19 (1979) (emphasis in original and

citation omitted). 1   Instead, the relevant question is whether

"any rational trier of fact could have found the essential




     1
       Unless the fact finder acted unreasonably, we consider it
our duty not to "substitute our judgment for that of the trier
of fact, even were our opinion to differ." Wactor, 38 Va. App.
at 380, 564 S.E.2d at 162 (citing Commonwealth v. Presley, 256
Va. 465, 466, 507 S.E.2d 72, 72 (1998)); see also Dowden v.
Commonwealth, 260 Va. 459, 467, 536 S.E.2d 437, 467 (2000);
Pease, 39 Va. App. at 355, 573 S.E.2d at 278; Harris v.
Commonwealth, 38 Va. App. 680, 691, 568 S.E.2d 385, 390 (2002).

                                - 4 -
elements of the crime beyond a reasonable doubt."     Id. at 319

(emphasis in original).    This deference applies not only to the

historical facts themselves, but the inferences from those facts

as well.    "The inferences to be drawn from proven facts, so long

as they are reasonable, are within the province of the trier of

fact."     Hancock v. Commonwealth, 12 Va. App. 774, 783, 407

S.E.2d 301, 306 (1991).

                                 A.

     Spratley first contends that the trial court erred in

finding that he constructively possessed cocaine.    We disagree.

The evidence presented by the Commonwealth was sufficient to

support the trial court's decision.

     To convict an individual of illegally possessing drugs, the

Commonwealth must prove that the defendant possessed an illicit

substance and appreciated its illegal "nature and character."

Birdsong v. Commonwealth, 37 Va. App. 603, 607, 560 S.E.2d 468,

470 (2002).    The Commonwealth can establish constructive

possession through "evidence of acts, statements, or conduct of

the accused or other facts or circumstances which tend to show

that the defendant was aware of both the presence and character

of the substance and that it was subject to his dominion and

control."     Id. at 607-08, 560 S.E.2d at 470 (quoting Glasco v.

Commonwealth, 26 Va. App. 763, 774, 497 S.E.2d 150, 155 (1998)).




                                 - 5 -
        Viewed in the light most favorable to the Commonwealth,

Spratley's suspicious movements and close proximity to the

cocaine provide sufficient evidence to support the trial court's

finding that he constructively possessed the cocaine.

Immediately upon approaching the vehicle, Sergeant Hamilton and

Detective Burgess observed Spratley "lifting" and "digging" in

between the driver and passenger seat.    While being pulled from

the vehicle, Spratley "made a movement with his left hand

towards the center of the vehicle" —— the very area where,

moments later, the officers discovered the narcotics in plain

view.

        The trial judge, as fact finder, was entitled to infer from

the evidence that Spratley was attempting to hide the cocaine

and, therefore, knew of its nature and character.     See, e.g.,

Brown v. Commonwealth, 5 Va. App. 489, 492, 364 S.E.2d 773, 774

(1988) ("While mere proximity to a controlled substance is

insufficient to establish possession, it is a factor to consider

when determining whether the accused constructively possessed

drugs."); Collins v. Commonwealth, 13 Va. App. 177, 178, 409

S.E.2d 175, 175 (1991) (finding sufficient evidence to prove

constructive possession where defendant "made a throwing motion

under the vehicle with his right arm").




                                 - 6 -
                                 B.

     Spratley also claims that the evidence fails to prove that

he intended to distribute the cocaine.    Again, we disagree.

     Absent direct evidence of drug distribution, "intent to

distribute 'must be shown by circumstantial evidence.'"     Askew

v. Commonwealth, 40 Va. App. 104, 108, 578 S.E.2d 58, 60 (2003)

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

156, 165 (1988)).   "Circumstantial proof of a defendant's intent

includes the quantity of the drugs discovered, the packaging of

the drugs, and the presence or absence of drug paraphernalia."

Askew, 40 Va. App. at 109, 578 S.E.2d at 61 (quoting Shackleford

v. Commonwealth, 32 Va. App. 307, 327, 528 S.E.2d 123, 133

(2000) (citations omitted), aff'd, 262 Va. 196, 547 S.E.2d 899

(2001)).    To be sure, "the absence of paraphernalia suggestive

of personal use . . . is regularly recognized as a factor

indicating an intent to distribute."     Askew, 40 Va. App. at 108,

578 S.E.2d at 60 (quoting Welshman v. Commonwealth, 28 Va. App.

20, 37, 502 S.E.2d 122, 130 (1998) (en banc)) (internal brackets

omitted).

     The amount of drugs seized from an individual can itself be

a dispositive factor.   "'Possession of a quantity greater than

that ordinarily possessed for one's personal use may be

sufficient to establish an intent to distribute it.'"     Askew, 40

Va. App. at 109, 578 S.E.2d at 60-61 (quoting Gregory v.



                                - 7 -
Commonwealth, 22 Va. App. 100, 110, 468 S.E.2d 117, 122 (1996)

(finding sufficient evidence of intent to distribute based on

possession of seven baggies containing a total of 3.7 grams of

cocaine), and Iglesias v. Commonwealth, 7 Va. App. 93, 110, 372

S.E.2d 170, 180 (1988) (en banc)).     "Indeed, quantity, when

greater than the supply ordinarily possessed by a narcotics user

for his personal use, is a circumstance which, standing alone,

may be sufficient to support a finding of intent to distribute."

Hunter v. Commonwealth, 213 Va. 569, 570, 193 S.E.2d 779, 780

(1973).

     Expert testimony plays a leading role in the presentation

of this evidence.   "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."     Askew, 40 Va. App. at 109, 578

S.E.2d at 61 (quoting Shackleford, 32 Va. App. at 327, 528

S.E.2d at 133); see also Davis v. Commonwealth, 12 Va. App. 728,

733, 406 S.E.2d 922, 925 (1991).

     We conclude that the trial court was not plainly wrong in

finding the evidence sufficient to prove Spratley intended to

distribute the drugs he possessed.     Spratley's bag contained

twelve individually wrapped cocaine "rocks" commonly distributed

in the retail drug trade.   These rocks, in aggregate, weighed

2.451 grams.   Testifying as an expert on the characteristics of

drug users, Sergeant Hamilton explained that such an amount was

                               - 8 -
inconsistent with personal use.     Even when on a "binge,"

Hamilton testified, crack cocaine users "normally don't purchase

12 rocks at a time."

     Possessing drugs in an amount "greater than that ordinarily

possessed for one's personal use may be sufficient to establish

an intent to distribute."     Castaneda v. Commonwealth, 7 Va. App.

574, 584, 376 S.E.2d 82, 87 (1989) (en banc).     Sergeant Hamilton

stated that crack users do not typically inventory narcotics for

future use.    Drug dealers do.   We have held that even a lesser

amount of drugs is probative of an intent to distribute.      See

Christian v. Commonwealth, 33 Va. App. 704, 716, 536 S.E.2d 477,

483 (2000) (en banc) (2.3 grams); Welshman, 28 Va. App. at 37,

502 S.E.2d at 130 (five to six pieces totaling 1.44 grams);

Poindexter v. Commonwealth, 16 Va. App. 730, 734-35, 432 S.E.2d

527, 530 (1993) (1.39 grams); cf. Gregory, 22 Va. App. at 110,

468 S.E.2d at 122 (3.4 grams in seven baggies).

     In this case, the officers did not find, either on Spratley

or in his vehicle, any cocaine user paraphernalia, such as crack

stems or smoking pipes.     See Askew, 40 Va. App. at 108, 578

S.E.2d at 60 (recognizing the "absence of paraphernalia

suggestive of personal use" as a factor indicating an intent to

distribute).   Nor did Spratley appear to be under the influence

of any narcotics at the time of his arrest.     In addition, no

evidence suggested Spratley had used crack cocaine in the

vehicle prior to his arrest.      See Colbert v. Commonwealth, 219

                                  - 9 -
Va. 1, 4, 244 S.E.2d 748, 749 (1978) ("[N]othing in the record

suggests that the defendant personally used marijuana.").

     While the officers did not find large sums of money at the

time of his arrest, this does not end our inquiry.   Possession of

large sums of cash, especially in small denominations, suggests

on-going efforts at distribution.   White v. Commonwealth, 25

Va. App. 662, 668, 492 S.E.2d 451, 454 (1997) (en banc).   That

inference, however, presupposes the seller has already begun —— at

the time of his arrest —— the process of reselling his inventory.2

If arrested between the wholesale purchase and the retail resale,

the dealer may have little, if any, money on him.    Thus, while

possession of large sums of money permits an inculpatory

inference, the absence of large sums does not render all other

incriminating evidence insufficient as a matter of law.

     Finally, Spratley argues that the absence of any cell phones

or pagers or large sums of money found collectively in his

possession negates any evidence of intent to distribute.   As

Sergeant Hamilton testified, however, in recent years drug

traffickers at the street level have segmented their operations:

"[A] lot of times what we are dealing with now is there is a




     2
       See, e.g., Colbert, 219 Va. at 4, 244 S.E.2d at 749 (large
amount of cash raised inference that defendant had "consummated
numerous sales" prior to his arrest); Langston v. Commonwealth,
28 Va. App. 276, 286, 504 S.E.2d 380, 385 (1998) ("The trial
court could have inferred this money was the fruit of several
drug transactions.").

                              - 10 -
person holding the money.   Maybe a person who is holding the drugs

and somebody else could be using the cell phone and the pager.

That way not all three items or all four or however many items,

are not found on one person."

                                 IV.

     In sum, the evidence supports the trial court's finding that

Spratley possessed cocaine with intent to distribute in violation

of Code § 18.2-248(A).   We thus affirm the conviction.

                                                    Affirmed.




                                - 11 -
Benton, J., dissenting.

     The evidence failed to prove Shawn Alexander Spratley

actually possessed the cocaine the police officer found in the

vehicle that was being driven by another man.    I would hold that

the evidence was insufficient to prove beyond a reasonable doubt

that Spratley had constructive possession of the cocaine and,

furthermore, certainly failed to prove he had an intent to

distribute the cocaine.

                              I.

     When, as here, the Commonwealth is required to prove beyond

a reasonable doubt that an accused constructively possessed a

controlled substance, "the Commonwealth must point to evidence

of acts, statements, or conduct of the accused or other facts or

circumstances which tend to show that the [accused] was aware of

both the presence and character of the substance and that it was

subject to his dominion and control."     Powers v. Commonwealth,

227 Va. 474, 476, 316 S.E.2d 739, 740 (1984).    Furthermore, Code

§ 18.2-250 provides that "[u]pon the prosecution of a person

[for possession of a controlled substance], ownership or

occupancy of . . . [a] vehicle upon or in which a controlled

substance was found shall not create a presumption that such

person either knowingly or intentionally possessed such

controlled substance."

     We apply well established principles when testing the

sufficiency of circumstantial evidence.

                             - 12 -
                "[I]f the proof relied upon by the
             Commonwealth is wholly circumstantial, as it
             here is, then to establish guilt beyond a
             reasonable doubt all necessary circumstances
             proved must be consistent with guilt and
             inconsistent with innocence. They must
             overcome the presumption of innocence and
             exclude all reasonable conclusions
             inconsistent with that of guilt. To
             accomplish that, the chain of necessary
             circumstances must be unbroken and the
             evidence as a whole must satisfy the guarded
             judgment that both the corpus delicti and
             the criminal agency of the accused have been
             proved to the exclusion of any other
             rational hypothesis and to a moral
             certainty."

Clodfelter v. Commonwealth, 218 Va. 619, 623, 238 S.E.2d 820,

822 (1977) (citation omitted).

     The trial judge had to speculate to conclude that Spratley

possessed the bag of cocaine that "was lying on top of the seat

. . . [and] somewhat underneath the catty corner of the

armrest."    No evidence directly proved Spratley possessed the

cocaine.    Indeed, the officer testified that he could not see

Spratley's hands.    Thus, the testimony that Spratley had reached

to the left side of the vehicle indicates only a suspicious

circumstance, not constructive possession.     See United States v.

Blue, 957 F.2d 106, 107-08 (4th Cir. 1992); Scruggs v.

Commonwealth, 19 Va. App. 58, 61-62, 448 S.E.2d 663, 665 (1994).

"[C]ircumstances of suspicion, [however,] no matter how grave or

strong, are not proof of guilt sufficient to support a verdict

of guilty.    The actual commission of the crime by the accused



                                - 13 -
must be shown by evidence beyond a reasonable doubt to sustain

his conviction."     Clodfelter, 218 Va. at 623, 238 S.E.2d at 822.

        In short, the evidence in this case failed to establish the

cocaine was not under the armrest when Spratley reached to his

left, and it clearly failed to establish the cocaine did not

belong exclusively to the driver, who was the owner of the

vehicle.    "Whenever the evidence leaves indifferent which of

several hypotheses is true, or merely establishes only some

finite probability in favor of one hypothesis, such evidence

does not amount to proof of guilt beyond a reasonable doubt."

Sutphin v. Commonwealth, 1 Va. App. 241, 248, 337 S.E.2d 897,

900 (1985).

        The necessity to prove guilt beyond a reasonable doubt is

illustrated by prior holdings.    For example, in Crisman v.

Commonwealth, 197 Va. 17, 87 S.E.2d 796 (1955), the police

officer who detained the occupants of a car testified that he

had been watching a house where illegal activities were

suspected, that the car stopped in front of the house, and that

the two defendants entered the house, remained a short time, and

reentered the car.    When the officer stopped the car, it was

occupied by three individuals in the front seat and the two

defendants in the rear seat.    All the occupants denied

possession of the heroin that was on floor in front of the rear

seat.    The Supreme Court held that the evidence was insufficient

to sustain a conviction for drug possession, noting that any one

                                - 14 -
of the five men in the vehicle could have dropped the heroin on

the floor, or it could have been placed there earlier by some

unknown party, and that no proof established ownership of the

heroin or identity of the person who placed it on floor of the

car.    Id. at 20, 87 S.E.2d at 798-99.   In reversing the

conviction, the Supreme Court explained that "our system of law

[requires] that before life or liberty is exacted the evidence

shall leave no reasonable doubt of the defendant's guilt."        Id.

at 21, 87 S.E.2d at 799.

                                 II.

       "Possession with intent to distribute is a crime which

requires 'an act coupled with a specific intent.'"        Stanley v.

Commonwealth, 12 Va. App. 867, 869, 407 S.E.2d 13, 15 (1991) (en

banc) (citation omitted).   "It is elementary that where, as

here, an indictment charges an offense which consists of an act

combined with a particular intent, proof of the intent is

essential to conviction."    Patterson v. Commonwealth, 215 Va.

698, 699, 213 S.E.2d 752, 753 (1975).     Moreover, the

Commonwealth must prove specific intent, an element of the

charged offense, beyond a reasonable doubt.     See Jackson v.

Virginia, 443 U.S. 307, 315-16 (1979); In re Winship, 397 U.S.

358, 363 (1970).   Therefore, "[e]xistence of the intent . . .

cannot be based upon surmise or speculation."     Patterson, 215

Va. at 699, 213 S.E.2d at 753.



                               - 15 -
     The principle is well established in Virginia that a

relatively small quantity of cocaine warrants the inference that

an accused possessed it for personal use.     See Dukes v.

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

police seized only 2.45 grams of cocaine.    Moreover, the officer

testified that any user of cocaine could buy twelve "rocks at

one time, packaged the exact same . . . way."    Thus, as in

Dukes, "[t]he mode of packaging [of the cocaine] and the way the

[package was] hidden are as consistent with possession for

personal use as they are with intent to distribute."    227 Va. at

123, 313 S.E.2d at 384.   In addition, the officer testified that

the twelve pieces of cocaine he seized could be consumed "four

in a day" by a user.   Thus, the evidence proved a user could

consume the seized cocaine within three days.    No evidence

indicated an intent to distribute.     I would hold, therefore,

that this evidence manifestly failed to prove an intent to

distribute the cocaine.




                              - 16 -
