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. 
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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 
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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 
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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 
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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. 
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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.