                     COURT OF APPEALS OF VIRGINIA


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


LEROY NEAL BARKSDALE, S/K/A
 LEROY NEIL BARKSDALE
                                                OPINION BY
v.   Record No. 2566-98-3                  JUDGE RICHARD S. BRAY
                                             DECEMBER 28, 1999
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE
                      James F. Ingram, Judge

          S. Jane Chittom, Appellate Counsel (Elwood
          Earl Sanders, Jr.; Public Defender
          Commission, on briefs), for appellant.

          John H. McLees, Jr., Assistant Attorney
          General (Mark L. Earley, Attorney General, on
          brief), for appellee.


     Leroy Neal Barksdale (defendant) was convicted in a bench

trial for possession of cocaine with intent to distribute, a

violation of Code § 18.2-248.   On appeal, defendant complains that

the trial court erroneously denied his motion for an order

requiring the Commonwealth to provide a qualitative analysis of

the offending substance.    Defendant also challenges the

sufficiency of the evidence to support the conviction.      Finding no

error, we affirm the trial court.

                                  I.

     In reviewing the sufficiency of the evidence, we consider the

record "'in the light most favorable to the Commonwealth, giving
it all reasonable inferences fairly deducible therefrom.   In so

doing, we must discard the evidence of the accused in conflict

with that of the Commonwealth, and regard as true all the credible

evidence favorable to the Commonwealth . . . .'"   Watkins v.

Commonwealth, 26 Va. App. 335, 348, 404 S.E.2d 859, 866 (1998)

(citation omitted).   The credibility of the witnesses, the weight

accorded testimony, and the inferences to be drawn from proven

facts are matters to be determined by the fact finder.   See Long

v. Commonwealth, 8 Va. App. 194, 199, 379 S.E.2d 473, 476 (1989).

"When weighing the evidence, the fact finder is not required to

accept entirely either the Commonwealth's or defendant's account

of the facts," but "may reject that which it finds implausible,

[and] accept other parts which it finds to be believable."

Pugliese v. Commonwealth, 16 Va. App. 82, 92, 428 S.E.2d 16, 24

(1993).   The judgment of the trial court will not be set aside

unless plainly wrong or unsupported by the evidence.   See Code

§ 8.01-680.

     At approximately 3:10 p.m. on August 20, 1997, Danville

Police Patrolman L.R. Kennedy and Detectives Tommy Merricks and

C.D. Evans executed a search warrant for defendant's apartment.

In a nightstand drawer, Evans discovered $105 cash and a "small

black bag like maybe a [sic] electric razor would come in,"

"bulged out" "from the contents."   A search of the black bag

revealed "a little plastic bag of white powder," "like a sandwich

bag," marijuana wrapped in a paper towel, an additional $517 cash,

                               - 2 -
food stamps, and "flat, electronic type scales."   The certificate

of analysis subsequently prepared by the Commonwealth's Division

of Forensic Science identified the "powder" as "cocaine (Schedule

II), 26.2 grams," and defendant admitted possession for his

personal use.

     At trial, Detective Merricks qualified as an expert on the

"street value" of cocaine and fixed the worth of 26.2 grams at

$800 to $1,300.   Without objection, Merricks described 26.2 grams

as "a large amount to be recovered," noting that he had "not

encountered anyone that is a user that has had [that quantity] of

cocaine at one time," that the most he had "ever seen anyone

purchase for personal use . . . was a hundred dollars' worth."

     Defendant testified that he had been a "cocaine addict" for

thirty years and admitted purchasing the subject drugs, a "three

or four day" supply, for $750 several hours prior to the search of

his residence.    He claimed that he won the purchase money and

remaining cash by "hitting the lottery," "three days in a row," 1

and "working and everything," and used the scales "to weigh what

[drug dealers] sold" him.

     On cross-examination, defendant explained that he supported

his cocaine habit, which consumed seven grams daily, by seasonal

employment several months each year at a weekly wage of $175,

irregular earnings "cleaning gutters and raking leaves[,] . . .


     1
       Defendant also testified that he "hit the numbers" "eleven
times" in 1997, winning in excess of $500 on each occasion.

                                - 3 -
stuff like that," and "shoplifting."    Whenever without funds to

purchase cocaine, defendant would "just chill out and . . . use no

drugs."    He admitted to "six or seven" prior felony convictions,

including robbery.

                                 II.

     Defendant first argues that the trial court erroneously

denied his motion, made immediately prior to the commencement of

trial, that the Commonwealth be required to provide a "quanitative

analysis" of the "powder," identified simply as "cocaine" in the

certificate of analysis, to determine and quantify the composition

of the substance.    In support of the motion, defendant's counsel

expressed his "belie[f]" that further analysis would reveal the

presence of a "cutting agent," evidence which may rebut any

inference of an intent to distribute cocaine arising from the

total quantity of powder.    In concluding his argument to the

court, counsel acknowledged, "I'm rolling the dice here."

     The Supreme Court of Virginia has instructed that "an

indigent defendant 2 who seeks the appointment of an expert

witness, at the Commonwealth's expense, must demonstrate that the

subject which necessitates the assistance of the expert is 'likely

to be a significant factor in his defense,' and that he will be

prejudiced by the lack of expert assistance[,]" resulting "in a

fundamentally unfair trial."   Husske v. Commonwealth, 252 Va. 203,


     2
         The instant record discloses that defendant was indigent.


                                - 4 -
211-12, 476 S.E.2d 920, 925 (1996) (footnote added) (citations

omitted), cert. denied, 519 U.S. 1154 (1997); see also Vinson v.

Commonwealth, ___ Va. ___, ___, ___ S.E.2d ___, ___ (1999).   Thus,

the Husske Court reasoned that the accused must show a

"particularized need" for such expertise and that "'"'[m]ere hope

or suspicion that favorable evidence is available is not enough to

require that such help be provided.' . . . The determination . . .

whether a defendant has made an adequate showing of particularized

necessity lies within the discretion of the trial judge."'"

Husske, 252 Va. at 212, 476 S.E.2d at 925-26 (citations omitted).

     Here, defendant "believe[d]" that a qualitative analysis of

the contraband would precisely quantify the cocaine, apart from

any cutting agent, evidence which he speculates would negate any

inference of an intent to distribute based upon gross weight.

However, nothing in the record establishes the relevance of purity

either to the distribution of cocaine or a related prosecution for

the offense.   Perhaps more telling, defendant characterized his

motion as "rolling the dice."   Thus, the record failed to

demonstrate a particularized need for the requested expertise but,

rather, defendant's mere hope that the evidence would promote his

defense.   Such conjecture, lacking substance, did not implicate

defendant's fundamental right to a fair trial.   Accordingly, the

trial court properly denied the motion.




                                - 5 -
                                 III.

       Defendant next challenges the sufficiency of the evidence to

establish the requisite intent to distribute.

       "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.'"   Dukes v. Commonwealth, 227 Va. 119,

122, 313 S.E.2d 382, 383 (1984) (citation omitted).     "When the

proof of intent to distribute 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."      Id. (citation omitted).

Furthermore, "[t]he presence of an unusual amount of money,

suggesting profit from sales," Servis v. Commonwealth, 6 Va. App.

507, 524, 371 S.E.2d 156, 165 (1988) (citation omitted), and "the

presence of paraphernalia," such as scales, are factors supporting

a conviction for possession with intent to distribute.     Davis v.

Commonwealth, 12 Va. App. 728, 733, 406 S.E.2d 922, 925 (1991).

       Detective Merricks testified that the quantity of cocaine in

defendant's possession was inconsistent with customary personal

use.   The drugs were found together with a large sum of money and

electronic scales suitable for weighing like contraband in

furtherance of distribution.   Although defendant offered

explanations for the cash, scales and quantity of cocaine to

                                - 6 -
refute an intent to distribute, the court was free to ignore his

testimony and "infer that he lied to conceal . . . guilt."

Speight v. Commonwealth, 4 Va. App. 83, 88, 354 S.E.2d 95, 98

(1987).

     Accordingly, we find the evidence sufficient to support the

conviction and affirm the decision of the trial court.

                                                         Affirmed.




                              - 7 -
Benton, J., dissenting.

     Leroy Barksdale concedes the evidence is sufficient to

prove his possession of cocaine, but he contends the evidence is

insufficient to prove his intent to distribute.     I agree;

therefore, I dissent.

     "To satisfy the due process requirements of the . . .

Constitution, the prosecution must bear the burden of proving

all elements of the offense beyond a reasonable doubt."        Stokes

v. Warden, 226 Va. 111, 117, 306 S.E.2d 882, 885 (1983).       "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. . . .     Existence

of the intent, however, cannot be based upon surmise or

speculation."   Patterson v. Commonwealth, 215 Va. 698, 699, 213

S.E.2d 752, 753 (1975) (citations omitted).     Intent must be

proved beyond a reasonable doubt.      See Dukes v. Commonwealth,

227 Va. 119, 123, 313 S.E.2d 382, 384 (1984); Wells v.

Commonwealth, 2 Va. App. 549, 553, 347 S.E.2d 139, 141 (1986).

          [W]ell established principles apply to
          testing the sufficiency of circumstantial
          evidence. In LaPrade v. Commonwealth, 191
          Va. 410, 418, 61 S.E.2d 313, 316 (1950),
          [the Supreme Court] summarized those
          principles as follows:

          ". . . [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

                               - 8 -
           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. . . ."

           But, circumstances of suspicion, 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 must be shown by evidence beyond a
           reasonable doubt to sustain his conviction.

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

822 (1977).

     The detective did not opine that the 26.2 grams of cocaine

was inconsistent with personal use.    Indeed, he testified as

follows:

           Q: . . . . Now you have not offered an
           opinion as to the quantity that can be used
           in personal use today?

           A:   No sir.

           Q: You have been strictly only as to value
           of this substance on the street?

           A:   Yes sir.

     Although the detective testified that 26.2 grams was not an

amount typically purchased on the street, he testified that in

the past eighteen months he had been involved in operations

where other individuals made purchases on the streets of

Danville of "approximately this quantity" of cocaine.     He also


                               - 9 -
testified that the purchase value of that quantity of powder

cocaine was $800 to $1,300 and that "powder has been less and

less . . . prevalent on the streets of Danville."   The evidence

further proved that although one-eighth of an ounce of cocaine,

known as an "eight-ball," is a typical unit of purchase on the

street, the amount of cocaine Barksdale possessed (26.2 grams),

which is less than an ounce, had been purchased on the streets

by the police.   In addition, the detective testified that

heavily addicted cocaine users would want to have an ounce of

cocaine to use if they could "get their hands on it."   In short,

this evidence does not establish that the amount of cocaine

Barksdale possessed was not for his personal use.   See, e.g.,

United States v. Levy, 703 F.2d 791, 792 (4th Cir. 1983) (noting

that 4.75 ounces of cocaine does not exceed the quantity a user

might store for personal use).

     Although scales were found in proximity to the cocaine, no

evidence tended to prove a use other than that testified to by

Barksdale.   He testified that he used the scales to weigh the

cocaine after he made purchases so as to assure himself that he

was not being cheated.   Considering the absence of proof that

Barksdale possessed any packaging materials or cutting agents or

any other circumstance tending to prove intent to distribute,

the evidence failed to prove that Barksdale intended to

distribute the cocaine which was located in a drawer of a

nightstand in his bedroom.

                              - 10 -
     For these reasons, I would reverse the conviction for

possession with intent to distribute.




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