COURT OF APPEALS OF VIRGINIA 

Present: Judges Bray, Annunziata and Senior Judge Hodges 

Argued at Norfolk, Virginia 

OSCAR FOSTER 

v. Record No. 2571-94-1 MEMORANDUM OPINION* BY JUDGE WILLIAM H. HODGES 

COMMONWEALTH OF VIRGINIA NOVEMBER 28, 1995 

 FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH 

Edward W. Hanson, Jr., Judge 

 Larry W. Shelton (Goldblatt, Lipkin & Cohen, P.C. 

 on brief), for appellant. 

 Eugene Murphy, Assistant Attorney General (James S. 

 Gilmore, III, Attorney General, on brief), for 

 appellee. 

 Oscar Foster was convicted of possession of heroin in 

violation of Code § 18.2-250, and possession of cocaine with 

intent to distribute in violation of Code § 18.2-248. On appeal, 

he contends that the evidence was insufficient to prove beyond a 

reasonable doubt that he committed these offenses. We disagree 

and affirm. 

 I. 

 On the evening of October 27, 1993, Officer Spiess stopped a 

vehicle driven by appellant. Appellant consented to a search of 

his person. Spiess testified appellant "was wearing very loose 

clothing in numerous layers. It was hard to get a real good 

search . . . ." Detective Tosloskie, who assisted Spiess, stated 

appellant wore "two or three layers of clothes . . . a full 

 

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

designated for publication. 
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winter jacket, sweat suit top, a shirt, and I think two pairs of 

pants . . . ." 

 Spiess found no drugs during the search, but recovered 

"several bundles of twenty dollar bills that [were] about the 

size of a cigarette package." The money was bundled in packets 

of $100 each and totalled about $4,000. Tosloskie also recovered 

$969 from two or three wallets carried by appellant. Spiess 

found several "brand new," unused crack pipes in the car, and, 

under the driver's seat of the car, Spiess found a metal pipe 

filled with rubber. 

 A narcotics search dog searched appellant's vehicle, but not 

appellant's person. The dog did not alert to narcotics in the 

car. Appellant was then arrested for possession of a concealed 

weapon (the metal pipe). 

 Spiess transported appellant to the jail in the back seat of 

Spiess' police vehicle at about 10:30 p.m. Appellant's hands 

were handcuffed behind his back while he was in the car. 

However, Spiess testified he saw appellant move around "quite a 

bit" while he rode in Spiess' car. After leaving appellant at 

the jail, Spiess searched his vehicle and recovered a cigarette 

package from the floorboard of the back seat area of the car. 

This package held smaller packages which contained a total of 

about five grams of cocaine, and a small amount of heroin. 

Tosloskie estimated the value of the recovered drugs was about 

$1,100 to $1,200. The smaller "envelopes" containing the drugs 
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had numbers written on them which Tosloskie stated represented 

the weights of the packages. Tosloskie also testified that the 

packaging of the drugs was consistent with drug distribution. 

The cigarette package carried a fingerprint which did not match 

appellant's fingerprints. 

 Spiess testified that it is common practice for him to 

search his car at the beginning of each shift. He looks 

underneath the seats and removes trash from the car. He takes 

the back seat completely out of the car and looks under 

insulation that could be loose. Spiess conducted such a search 

of his car at 3:00 p.m. on the day he transported appellant. 

Spiess also searched the car immediately before he transported 

appellant. Spiess found nothing in the car during these 

searches. 

 Spiess transported no one in his car on October 27, 1993, 

prior to transporting appellant. Spiess testified his car 

remains locked when he is not in it, and he is the only person 

with keys to the car. 

 II. 

 [I]n a criminal prosecution, based entirely 

on circumstantial evidence, "a suspicion of 

guilt, however strong, or even a probability 

of guilt, is insufficient to support a 

criminal conviction." Nevertheless, 

circumstantial evidence may be more 

compelling and persuasive than direct 

evidence, and when convincing, it is entitled 

to as much weight as direct evidence. 

Whether the Commonwealth relies upon either 

direct or circumstantial evidence, it is not 

required to disprove every remote possibility 

of innocence, but is, instead, required only 
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to establish guilt of the accused to the 

exclusion of a reasonable doubt. 

Bridgeman v. Commonwealth, 3 Va. App. 523, 526-27, 351 S.E.2d 

598, 600 (1986) (citations omitted). 

 Appellant argues that the circumstantial evidence did not 

prove beyond a reasonable doubt that the cigarette package was 

possessed by appellant. Appellant contends that the following 

evidence supports a reasonable hypothesis of innocence: (1) the 

fingerprint on the cigarette package did not match appellant's 

fingerprints; (2) the narcotics dog was taken through appellant's 

car, against which appellant was standing, and did not alert to 

narcotics; (3) appellant's hands were handcuffed behind 

appellant's back while he was in Spiess' car; (4) appellant was 

searched prior to riding in Spiess' car and no drugs were found 

on appellant's person; and (5) the $4,000 in cash was provided to 

appellant by his son and his estranged wife for the purchase of a 

car. 

 "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). Spiess' car was 

thoroughly searched twice on October 27, 1993, at the beginning 

of Spiess' shift, and immediately prior to placing appellant into 

the car. No drugs were found in the car during either search. 

No one, other than appellant, was transported in the car on the 

day appellant was arrested. In addition, the evidence showed 
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that the narcotics dog searched only appellant's vehicle and did 

not search appellant's person. Moreover, appellant wore 

"numerous layers" of clothing, making a thorough and complete 

search of appellant difficult, if not impossible. It is not 

unreasonable to infer that the search under these conditions 

would not have disclosed the cigarette package. See Glover v. 

Commonwealth, 3 Va. App. 152, 160, 348 S.E.2d 434, 440 (1986), 

aff'd, 236 Va. 1, 372 S.E.2d 134 (1988). 

 Furthermore, Spiess testified that appellant moved around 

"quite a bit" while he rode in Spiess' car. Thus, there was 

sufficient evidence from which the jury could find appellant 

disposed of the cigarette package in Spiess' vehicle despite the 

fact that he was handcuffed while in the police car. See id. at 

160-61, 348 S.E.2d at 440. 

 The presence of another person's fingerprint on the 

cigarette package was evidence for the jury to consider. 

However, the weight to be given this evidence was for the jury to 

decide. See Keyes v. City of Virginia Beach, 16 Va. App. 198, 

199, 428 S.E.2d 766, 767 (1993). Even with the fingerprint 

evidence, abundant circumstantial evidence existed from which the 

jury validly could have inferred that appellant possessed the 

cigarette package containing the drugs. 

 III. 

 "In proving intent, various types of circumstantial evidence 

may be appropriate -- evidence concerning the quantity of drugs 
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and cash possessed, the method of packaging, and whether 

appellant himself used drugs." Poindexter v. Commonwealth, 16 

Va. App. 730, 734-35, 432 S.E.2d 527, 530 (1993). Viewed in the 

light most favorable to the Commonwealth, the evidence showed 

that appellant was carrying individual packets of cocaine 

totalling almost five grams. Tosloskie testified that the method 

of packaging of the cocaine was inconsistent with personal use 

and that the drugs were valued at about $1,100 to $1,200. 

Tosloskie further stated that had appellant purchased the drugs 

packaged in this fashion, he would have paid "quite a bit more" 

than if he purchased a large "chunk." Furthermore, no evidence 

introduced at trial indicated that appellant was a cocaine user, 

and several unused crack pipes were recovered from appellant's 

car. 

 Appellant also possessed $4,000 in cash formed into bundles, 

and over $900 in cash kept in two or three wallets. Although 

appellant's son and his estranged wife testified that appellant 

had the $4,000 in order to purchase a car, the "[t]he weight 

which should be given to evidence and whether the testimony of a 

witness is credible are questions which the fact finder must 

decide." Bridgeman, 3 Va. App. at 528, 351 S.E.2d at 601. The 

jury did not believe the testimony of appellant's son and his 

estranged wife concerning the presence of the cash. 

 Based on this evidence, we cannot conclude that the jury 

erred in finding that appellant intended to distribute the 
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cocaine. 

 For the foregoing reasons, the judgment of the trial court 

is affirmed. 

 Affirmed.