COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Moon, Judges Benton and Elder 

Argued at Richmond, Virginia 

JAMES LAVOR SMITH 

 MEMORANDUM OPINION* BY 

v. Record 2177-95-2 CHIEF JUDGE NORMAN K. MOON 

 JANUARY 14, 1997 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY 

William R. Shelton, Judge 

 R. Donald Ford, Jr., for appellant. 

 Eugene Murphy, Assistant Attorney General 

(James S. Gilmore, III, Attorney General, on 

brief), for appellee. 

 James Lavor Smith contends that the evidence was 

insufficient to support his convictions of grand larceny of an 

automobile and possession of cocaine with the intent to 

distribute. Because the evidence disclosed that Smith did not 

actually steal the automobile, and the evidence did not exclude 

as a reasonable hypothesis that Smith did not know the automobile 

was stolen, we hold that the evidence was insufficient to support 

the grand larceny conviction. On the other hand, we hold that 

the evidence was sufficient to prove that Smith possessed the 

cocaine. However, we hold that the evidence was insufficient to 

exclude as a reasonable hypothesis that he possessed it for his 

personal use. 

 On the night of February 21, 1995, a Chesterfield County 

 

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

designated for publication. 
- 2 - 

police officer observed a car in a convenience store parking lot 

in a "known drug area." A license number check revealed that the 

car had been reported stolen. The officer turned around and 

entered the parking lot where he detained Smith who was returning 

to the vehicle from a nearby pay phone. The officer ordered 

Smith to lie face down with his arms spread on the car's trunk. 

The officer then handcuffed Smith and moved him away from the 

car. After moving Smith, the officer noticed a bag containing 

smaller packets of a substance later identified as cocaine lying 

on the trunk "right where [he] had put [Smith]." The officer did 

not see the bag on the trunk before he placed Smith there. The 

officer searched Smith and found a small amount of marijuana, $63 

in cash, a beeper, and another person's identification card. 

Smith denied having any knowledge of the cocaine and explained 

that he had gotten the car that evening from a woman named Pat in 

Petersburg. However, he could not provide Pat's last name but 

said that she lived on South Street. 

 The owner of the automobile, Debra Howard, testified that 

she had loaned the automobile to her brother and that it was 

stolen from him in Petersburg by a woman named Pat approximately 

one week before Smith's arrest. Howard's brother did not 

testify. The arresting officer testified that there was no 

damage to the car's steering column and that Smith had the car's 

keys. 

Larceny of the Car
- 3 - 

 The Commonwealth's evidence proved that a person named Pat 

stole the vehicle in Petersburg and that Smith got the vehicle 

from a woman named Pat in Petersburg. The evidence does not 

reveal whether he got it for his permanent possession or whether 

he borrowed it for the evening. There were no circumstances 

suggesting that Smith should have known that the vehicle was 

stolen. He had the car's keys, and it had not been damaged. 

Compare Spitzer v. Commonwealth, 233 Va. 7, 353 S.E.2d 711 

(1987). 

 Accordingly, we hold that the evidence was insufficient to 

prove that Smith stole the vehicle or possessed it knowing it had 

been stolen. 

Possession of Cocaine

 We hold that the evidence was sufficient for a rational 

finder of fact to believe beyond a reasonable doubt that Smith 

placed the drugs on the trunk. Smith's suggested hypothesis that 

someone else placed them there after he stopped the car and 

before the police officer put him up against the trunk is not a 

reasonable hypothesis that flows from the evidence in the case. 

The officer, who was in a position to see anything on the trunk, 

saw nothing on it before ordering Smith to lie against the trunk. 

 The officer had not searched Smith prior to ordering him onto 

the trunk. The officer's relevant testimony was as follows: 

 Q And where was [the bag containing 

cocaine] located in relation to where he had 

been? 

 A That's exactly right where I had put 

him. 
- 4 - 

 Q Had there been any substance there 

before you put him on the trunk? 

 A Not that I saw, no, sir. 

 Q Okay. And you were in a position 

where you could be able to see if there had 

been anything? 

 A Yes, sir. I was right behind. 

Intent to Distribute

 "Because direct proof of intent is often impossible, it 

must be shown by circumstantial evidence. But '[w]here . . . the 

Commonwealth's evidence of intent to distribute is wholly 

circumstantial, "all necessary circumstances proved must be 

consistent with guilt and inconsistent with innocence and exclude 

every reasonable hypothesis of innocence."'" Servis v. 

Commonwealth, 6 Va. App. 507, 524, 371 S.E.2d 156, 165 (1988) 

(quoting Wells v. Commonwealth, 2 Va. App. 549, 551, 347 S.E.2d 

139, 140 (1986)). Circumstantial proof of a defendant's intent 

includes the quantity of the drug discovered, the packaging of 

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

Id. at 524-25, 371 S.E.2d at 165. 

 Here, Smith possessed a beeper, an item routinely classified 

as a tool of the drug trade. Wilkins v. Commonwealth, 18 Va. 

App. 293, 443 S.E.2d 440 (1994) (en banc). Smith also possessed 

cash in the sum of $63. We have concluded that, considered with 

other factors, possession of currency by a defendant may be 

considered in determining whether they possessed drugs with an 

intent to distribute. See Colbert v. Commonwealth, 219 Va. 1, 
- 5 - 

244 S.E.2d 748 (1978). However, here Smith had only $63 on his 

person, unlike the defendant in Colbert, who was found with 

approximately $200 in various denominations stuffed in his 

pockets. No details concerning Smith's money are of record. The 

possession of $63 is not significant. 

 Regarding packaging of the drugs, the record indicates 

Smith possessed thirty-one separate plastic baggies containing 

some cocaine. The quantity and packaging of an illegal substance 

are regularly recognized circumstantial indicators of a 

defendant's intent. Servis, 6 Va. App. at 524-25, 371 S.E.2d at 

165. Whether each bag contained residue or a significant amount 

of cocaine does not appear of record. The certificate shows a 

total weight of 1.18 grams. The Assistant Commonwealth's 

Attorney at the end of the officer's testimony stated, "I move 

for the introduction of the items that the officer has there: the 

money, the lighter, the pager, the substance itself that was 

recovered and also the lab report filed with the court papers." 

There is no recorded response by the court or defense counsel. 

Apparently, none of these items were referred to by exhibit 

numbers or marked as exhibits. They were not admitted in 

evidence and thus are not part of the record of the case. Since 

the certificate of analysis was discussed and treated as if 

admitted, we may consider it. Griswold v. Commonwealth, 19 Va. 

App. 477, 480, 453 S.E.2d 287, 288-89 (1995). 

 Unfortunately, since the drugs were not admitted into 

evidence and are not part of the record, we cannot see what the 
- 6 - 

trial court might have seen. See Brittle v. Commonwealth, 222 

Va. 518, 522-23, 281 S.E.2d 889, 890 (1981). Moreover, there was 

no expert testimony as to the significance of the weight or 

packaging to aid the fact finder in determining whether the 

cocaine was for personal use or distribution. There was no 

evidence of what daily use may consist of or the weight of a 

single dose. See Dukes v. Commonwealth, 227 Va. 119, 123, 313 

S.E.2d 382, 384 (1984). The illegal use of narcotics is not yet 

so well known and a matter of common knowledge that the courts 

may resort to judicial notice to fill in the gaps in the 

Commonwealth's proof. See 2 Charles E. Friend, The Law of 

Evidence in Virginia, 19-1 (4th ed. 1993). 

 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. See Hetmeyer v. Commonwealth, 19 Va. App. 103, 448 

S.E.2d 894 (1994); Rodriguez v. Commonwealth, 18 Va. App. 277, 

443 S.E.2d 419 (1994); Poindexter v. Commonwealth, 16 Va. App. 

730, 432 S.E.2d 527 (1993). Here, because there was no such 

evidence, there was insufficient evidence to exclude beyond a 

reasonable doubt that the possession was merely for personal use.

 

 Accordingly, Smith's conviction of grand larceny is reversed 

and dismissed. His conviction for possession of cocaine with the 

intent to distribute is reversed and remanded to the trial court 

for further proceedings on the charge of possession of cocaine, 
- 7 - 

if the Commonwealth be so advised. 

 Reversed.
- 8 - 

Benton, J., concurring and dissenting. 

 I concur in the opinion except for (1) the section styled 

"Possession of Cocaine" and (2) the judgment affirming that 

conviction. 

 The testimony of the officer who seized Smith was 

insufficient to prove beyond a reasonable doubt that Smith 

possessed the cocaine that the officer found on the rear of the 

automobile. Although the officer watched Smith closely, the 

following excerpt from his testimony proved that the officer did 

not observe the trunk of the automobile with care: 

 Q Okay. Describe, please, if you would what 

happened when you made that particular stop? 

 A [Smith] was at the pay phone. There was 

another gentleman that was in the passenger 

side of the car. And, I, at gun-point, I 

ordered . . . [Smith] on to the back of the 

trunk of the vehicle laying down with his 

hands out on the vehicle like this. It was a 

chilly night and he had a coat on. At that 

point I approached [Smith], I holstered my 

weapon, and handcuffed him. When I 

handcuffed him, I took him and put him beside 

the car and held the other gentleman at 

gun-point until Officer Townsend arrived, my 

backup. 

 Q Okay. And what did you find after Officer 

Townsend arrived? 

 A When I was going to pick . . . Mr. Smith, 

from the ground, I noticed on the back of the 

car right where I put him was a bag of white 

powder, rocks. 

 Q And where was that located in relation to 

where he had been? 

 A That's exactly right where I had put him. 

 Q Had there been any substance there before 
- 9 - 

you put him on the trunk? 

 A Not that I saw, no, sir. 

 Q Okay. And you were in a position where 

you could be able to see if there had been 

anything? 

 A Yes, sir. I was right behind. 

 The officer's testimony that he was "in a position . . . 

[to] be able to see" is insufficient to prove that the cocaine 

was not already on the trunk when the officer spread Smith on the 

trunk. The officer testified that before he spread Smith on the 

trunk he "wasn't consciously looking at [the trunk]." Indeed, 

after the officer handcuffed Smith and moved Smith onto the 

ground, he did not see the cocaine. He watched Smith and the 

passenger and waited for Officer Townsend to arrive. 

 Officer Townsend testified as follows: 

 When I arrived, Officer Francis had [Smith] 

on the back of the car. I observed another 

subject on the passenger side of the car 

laying face down. At that time Officer 

Francis put [Smith] in handcuffs and he told 

me to watch the second one. He walked 

[Smith] to his car. At that time after he 

put him in the car, I approached the second 

suspect, placed him in handcuffs, got him up, 

and as I was walking by the car, trunk of the 

car, I noticed a white, a clear plastic bag 

containing some white substance. 

 Even if the trier of fact could ignore the patent conflict 

in the officers' testimony regarding Smith's position and which 

officer first saw the cocaine, the testimony of both officers 

proves that neither of them carefully observed the trunk of the 

vehicle until well after Smith was off the trunk. 
- 10 - 

 This evidence simply fails to prove beyond a reasonable 

doubt that the cocaine was not on the trunk before the officer 

put Smith on the trunk. Furthermore, the principle is well 

established that "[t]he burden was on the Commonwealth to prove 

beyond a reasonable doubt that [Smith] was aware of the presence 

and character of the [cocaine] and was intentionally and 

consciously in physical or constructive possession of it." 

Wright v. Commonwealth, 217 Va. 669, 670, 232 S.E.2d 733, 734 

(1977). Here, the evidence proved only that the officers found 

cocaine on the trunk after Smith was put there by the officers 

and after Smith had been moved away to the police vehicle. The 

inferences that rise from that evidence fail to prove beyond a 

reasonable doubt that Smith put the cocaine on the trunk or 

possessed the cocaine. 

 For these reasons, I would reverse all the convictions.