COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Coleman and Bumgardner 

Argued at Salem, Virginia 

TERRY WAYNE JONES 

 MEMORANDUM OPINION* BY 

v. Record No. 0830-97-3 JUDGE SAM W. COLEMAN III 

 MAY 5, 1998 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE 

James F. Ingram, Judge 

 Andrea C. Long (Boone, Beale, Cosby & Long, 

on brief), for appellant. 

 Steven A. Witmer, Assistant Attorney General 

(Richard Cullen, Attorney General, on brief), 

for appellee. 

 Terry Wayne Jones appeals his bench trial conviction for 

possession of cocaine with the intent to distribute in violation 

of Code § 18.2-248. Conceding that he possessed cocaine, Jones 

contends the evidence is insufficient to prove that he intended 

to distribute the cocaine. Finding the evidence sufficient, we 

affirm the conviction. 

 Proof of an accused's "specific intent" to distribute a 

controlled substance is essential to a conviction under Code 

§ 18.2-248. See Servis v. Commonwealth, 6 Va. App. 507, 524, 371 

S.E.2d 156, 165 (1988). Because the specific intent to 

distribute a controlled substance is difficult to establish 

through direct evidence, the Commonwealth may, and frequently 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
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must, rely on circumstantial evidence to prove that intent. See

Wilkins v. Commonwealth, 18 Va. App. 293, 298, 443 S.E.2d 440, 

444 (1994) (en banc). When the Commonwealth relies on 

circumstantial evidence, "'all necessary circumstances proved 

must be consistent with guilt and inconsistent with innocence and 

exclude every reasonable hypothesis of innocence.'" Pemberton v. 

Commonwealth, 17 Va. App. 651, 655, 440 S.E.2d 420, 422 (1994) 

(quoting Garland v. Commonwealth, 225 Va. 182, 184, 300 S.E.2d 

783, 784 (1983)). 

 On appeal, we review the evidence in the light most 

favorable to the Commonwealth, granting to it all reasonable 

inferences fairly deducible therefrom. Martin v. Commonwealth, 4 

Va. App. 438, 443, 358 S.E.2d 415, 418 (1987). "The judgment of 

a trial court sitting without a jury is entitled to the same 

weight as a jury verdict and will not be set aside unless it 

appears from the evidence that the judgment is plainly wrong or 

without evidence to support it." Id.

 Viewed accordingly, the evidence proved that City of 

Danville Police Officer Ricky Luck employed an undercover 

informant to make a controlled drug purchase at Jones' house. 

Luck recorded the serial number on a twenty dollar bill and gave 

the bill to the informant to use in the controlled purchase. 

Luck watched the informant enter the house and return with two 

rocks of cocaine. 

 Based on the informant's purchase, Luck obtained and 
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executed a warrant to search Jones' house the next day. During 

the search, Luck asked Jones whether he was in possession of any 

drugs. Jones responded that he was. Luck then searched Jones 

and recovered a pill bottle containing fifteen rocks of cocaine, 

weighing approximately 1.2 grams, and a baggie containing 

approximately 0.18 grams of cocaine. He also found over $757 in 

small denomination bills in Jones' pants pockets, including a 

twenty dollar bill bearing the same serial number as the twenty 

dollar bill that Luck had given to the informant to purchase 

cocaine at Jones' house a day earlier. 

 Appellant denied knowledge of the informant's controlled 

drug purchase, but admitted possessing the cocaine that Luck 

found in his pockets. Appellant claimed that the cocaine was for 

his personal use. He testified that he received $423 per month 

in Social Security disability income and that he possessed $757 

in cash because he had just cashed his Social Security check. He 

also testified that a friend had used his house to entertain a 

guest on the night of the informant's purchase and the friend had 

given him a twenty dollar bill for letting him do so. 

 The circumstantial evidence supports the trial court's 

finding that Jones possessed the cocaine with the specific intent 

of distributing it. Although the Commonwealth offered no 

evidence to prove that the quantity of cocaine found in Jones' 

possession was inconsistent with personal use, even a relatively 

small quantity of drugs when considered in conjunction with other 
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circumstances may support a finding of an intent to distribute. 

See Early v. Commonwealth, 10 Va. App. 219, 222, 391 S.E.2d 340, 

341-42 (1990). Luck recovered $757 in small denomination bills 

from Jones' pockets. We have consistently recognized that an 

accused's possession of a significant amount of cash, especially 

in small denominations, may be considered by the fact finder as 

evidence sufficient to prove an intent to distribute. See White 

v. Commonwealth, 25 Va. App. 662, 668, 492 S.E.2d 451, 454 (1997) 

(en banc); Servis v. Commonwealth, 6 Va. App. 507, 524, 371 

S.E.2d 156, 165 (1988). Furthermore, in this case, the jury 

could infer that appellant was selling drugs in light of the fact 

that the amount of cash found in his possession was significant 

in comparison to appellant's disability income of $423 per month. 

 Also, Jones' possession of the "marked" twenty dollar bill 

supports the inference that Jones sold the two rocks of cocaine 

to the informant and intended to sell the rocks of cocaine found 

in his possession. "A finder of fact may infer from evidence of 

a recent sale of a controlled substance, related by time and 

place to a similar substance still in the seller's possession, 

that the seller intended to distribute the substance he or she 

still possessed." Werres v. Commonwealth, 19 Va. App. 744, 749, 

454 S.E.2d 36, 39 (1995). Furthermore, the trial court was 

entitled to reject Jones' testimony explaining how the large 

amount of cash, including the "marked" currency, came into his 

possession and that he possessed the cocaine for his personal 
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use. See Black v. Commonwealth, 222 Va. 838, 842, 284 S.E.2d 

608, 610 (1981). 

 Considering the totality of the circumstances and the 

reasonable inferences fairly deducible from the evidence, we 

cannot say that the trial court's conclusion that Jones possessed 

the cocaine with the specific intent to distribute is plainly 

wrong or without evidence to support it. Accordingly, the 

evidence is sufficient to support the conviction, and we affirm. 

 Affirmed.
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Benton, J., dissenting. 

 When the Commonwealth's "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). "Where inferences are relied upon to 

establish guilt, they must point to guilt so clearly that any 

other conclusion would be inconsistent therewith." Dotson v. 

Commonwealth, 171 Va. 514, 518, 199 S.E. 471, 473 (1938). Thus, 

it follows that the "[e]xistence 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), and 

must be proved beyond a reasonable doubt. See Smith v. 

Commonwealth, 16 Va. App. 626, 628, 432 S.E.2d 1, 2 (1993). 

 The evidence proved that the day before Terry Jones was 

arrested, a police informant with a marked twenty dollar bill 

entered the residence where Jones lived. The officer who gave 

the informant the money testified that he heard several people in 

the residence. However, no evidence proved that Jones was 

present. After the informant left the residence, he gave the 

police cocaine. No evidence proved how the informant obtained 

the cocaine or who was in the residence when the informant 

entered. No evidence proved that Jones was the only person who 

lived in the residence. 
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 The next day, the police obtained a warrant and entered 

Jones' residence. Jones was in the residence with a woman. 

Although Jones had cocaine in his pocket, no evidence proved that 

Jones possessed an amount of cocaine that was inconsistent with 

personal use. The circumstances of Jones' possession of the 

cocaine are as consistent with his intent to use the cocaine as 

they are with an intent to distribute. See Hunter v. 

Commonwealth, 213 Va. 569, 571, 193 S.E.2d 779, 780 (1973). 

Indeed, the relatively small quantity of cocaine found warrants 

the inference that Jones possessed it for his personal use. See

Dukes, 227 Va. at 122, 313 S.E.2d at 384. 

 No other evidence tended to prove an intent to distribute. 

The packaging of cocaine was not unique. "The mode of packaging 

and the way the packages were hidden are as consistent with 

possession for personal use as they are with intent to 

distribute." Id. at 123, 313 S.E.2d at 384. No evidence proved 

that Jones had scales, baggies, twist ties, a ledger of accounts, 

or any other paraphernalia usually associated with distribution 

of cocaine. 

 The majority suggests the trier of fact could have inferred 

that Jones intended to distribute the drugs from the fact that 

Jones also possessed a quantity of money that was less than twice 

his monthly income. Even if the trier of fact rejected Jones' 

uncontradicted explanation of the legitimate source of his income 

and Jones' testimony that the money was to pay his household 
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bills, the record contains no proof that the money came from the 

sale of illegal drugs. Jones had money in his residence and had 

a legitimate source of income. His guilt cannot be established 

by inferring that his possession of more than a pittance of funds 

proves he must be engaged in selling drugs. The inference the 

majority uses to establish Jones' guilt is purely speculative. 

 "Where inferences are relied upon to establish guilt, they 

must point to guilt so clearly that any other conclusion would be 

inconsistent therewith." Dotson, 171 Va. at 518, 199 S.E. at 

473. People of modest means are not incapable of saving money 

and do not always exhaust their income each month. Moreover, the 

evidence proved that Jones, a drug user, had a legitimate source 

of income. His guilt cannot be established by proving he had 

money in his home. Under the majority's thesis, every gainfully 

employed drug user can be found guilty of possession with intent 

to distribute by simultaneously possessing drugs and the proceeds 

of his or her last legitimate paycheck. 

 It is well settled in Virginia that "[w]henever the evidence 

leaves indifferent which of several hypotheses is true, or merely 

establishes some finite probability in favor of one hypothesis, 

such evidence does not amount to proof beyond a reasonable 

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

897, 900 (1985) (citation omitted). Although the evidence may be 

suspicious, or may even make it probable that Jones intended to 

distribute the cocaine, such circumstantial evidence is not 
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sufficient to support a criminal conviction for possession of the 

cocaine with intent to distribute. Suspicious circumstances 

alone are insufficient to sustain a conviction for possession of 

drugs with an intent to distribute. See Garland v. Commonwealth, 

225 Va. 182, 184, 300 S.E.2d 783, 784 (1983); Wright v. 

Commonwealth, 217 Va. 669, 670, 232 S.E.2d 733, 734 (1977). "[A] 

conviction based upon a mere suspicion or probability of guilt, 

however strong, cannot stand." Bridgeman v. Commonwealth, 3 Va. 

App. 523, 528, 351 S.E.2d 598, 601-02 (1986). 

 For these reasons, I would reverse the conviction.