COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Elder and Senior Judge Coleman 

Argued at Chesapeake, Virginia 

GERRY CARLTON ASKEW 

 OPINION BY 

v. Record No. 0079-02-1 JUDGE SAM W. COLEMAN III 

 MARCH 18, 2003 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH 

Dean W. Sword, Jr., Judge 

 S. Jane Chittom, Appellate Defender (Public 

Defender Commission, on briefs), for 

appellant. 

 Stephen R. McCullough, Assistant Attorney 

General (Jerry W. Kilgore, Attorney General, 

on brief), for appellee. 

 Gerry Carlton Askew appeals his bench trial conviction for 

possession of cocaine with the intent to distribute in violation 

of Code § 18.2-248. The sole issue on appeal is whether the 

evidence is sufficient to support a finding that appellant 

intended to distribute the cocaine. He posits that the only 

proven fact which the court could have relied upon to support 

the finding that he intended to distribute cocaine was that he 

possessed 7.36 grams of crack cocaine, an amount that is not 

inconsistent, as a matter of law, with personal use. For the 

reasons that follow, we affirm the conviction. 
BACKGROUND 

 "On appeal, 'we review the evidence in the light most 

favorable to the Commonwealth, granting to it all reasonable 

inferences fairly deducible therefrom.'" Archer v. 

Commonwealth, 26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997) 

(citation omitted). "The judgment of a trial court sitting 

without a jury is entitled to the same weight as a jury verdict, 

and will not be disturbed on appeal unless plainly wrong or 

without evidence to support it." Beck v. Commonwealth, 2 

Va. App. 170, 172, 342 S.E.2d 642, 643 (1986) (citations 

omitted). 

 Sergeant Butler and Officer Brown stopped a car in 

Portsmouth in which appellant was the front seat passenger. As 

they approached the car, Butler saw appellant make furtive 

movements as if he were hiding something. Police arrested 

appellant based on an outstanding warrant for his arrest. 

Officer Brown searched appellant incident to the arrest and felt 

a suspicious item inside appellant's pants. Sergeant Butler 

authorized Brown to conduct a strip search of appellant when 

they arrived at police headquarters. When Brown removed 

appellant from the cruiser at headquarters, he noticed a plastic 

bag of a substance he suspected to be crack cocaine lying on the 

front seat where appellant had been sitting. Brown then 

searched appellant and found $65 in small denomination bills and 

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a pager. Appellant possessed no devices with which to ingest 

crack cocaine. 

 The plastic bag recovered from the car seat contained seven 

separate plastic bags containing off-white material, which 

tested positive for crack cocaine. The total amount of crack 

cocaine weighed 7.36 grams. 

 At trial, Detective Wright was qualified as an expert in 

the use and distribution of narcotics. He testified that the 

street value of 7.36 grams of cocaine was $700. Wright opined 

that 7.36 grams of crack cocaine, when considered with the cash, 

pager and lack of a smoking device, was inconsistent with 

personal use. On cross-examination, Wright stated that a 

typical user of crack cocaine consumes between two-tenths and 

one gram per day. Wright added that in the six years he has 

investigated narcotics crimes he has not seen a user of crack 

cocaine who "stockpiled" three grams for personal use, much less 

7.36 grams. 

ANALYSIS 

 As part of his sufficiency argument, appellant contends 

Wright's expert opinion "is itself inconsistent with other 

expert opinions, from other [expert] police witnesses, in other 

cases." Furthermore, because so much variation exists between 

experts' opinions in case law as to "the habits of users, then 

purported[] expert testimony about the consumption habits of 

users is without value as evidence . . . [and] the lack of any 

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common standard among these purported experts . . . casts doubt 

on the reliability of their 'expert' opinions." Thus, because 

Wright's expert opinion as to what constitutes personal use was 

the only evidence of intent to distribute, other than the 

quantity which is insufficient as a matter of law, and because 

his expert opinion is unreliable, appellant argues that his 

conviction should be reversed. 

Proving Intent to Distribute

 In cases lacking direct evidence of drug distribution, 

intent to distribute "must be shown by circumstantial evidence." 

Servis v. Commonwealth, 6 Va. App. 507, 524, 371 S.E.2d 156, 165 

(1988). Among the circumstances that tend to prove an intent to 

distribute are "the quantity of the drugs seized, the manner in 

which they are packaged, and the presence of . . . equipment 

related to drug distribution." McCain v. Commonwealth, 261 Va. 

483, 493, 545 S.E.2d 541, 547 (2001) (citations omitted). 

Pagers and firearms are among the equipment that has been 

recognized as tools of the drug trade, the possession of which 

are probative of intent to distribute. Glasco v. Commonwealth, 

26 Va. App. 763, 775, 497 S.E.2d 150, 156 (1998), aff'd, 257 Va. 

433, 513 S.E.2d 137 (1999). Furthermore, "the absence of 

paraphernalia suggestive of personal use . . . [is] regularly 

recognized as [a] factor[] indicating an intent to distribute." 

Welshman v. Commonwealth, 28 Va. App. 20, 37, 502 S.E.2d 122, 

130 (1998) (en banc) (citation omitted). "'Possession of a 

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quantity greater than that ordinarily possessed for one's 

personal use may be sufficient to establish an intent to 

distribute it.'" Gregory v. Commonwealth, 22 Va. App. 100, 110, 

468 S.E.2d 117, 122 (1996) (finding sufficient evidence of 

intent to distribute based on possession of seven baggies 

containing a total of 3.7 grams of cocaine) (quoting Iglesias v. 

Commonwealth, 7 Va. App. 93, 110, 372 S.E.2d 170, 180 (1988) (en

banc)); see also Hunter v. Commonwealth, 213 Va. 569, 570, 193 

S.E.2d 779, 780 (1973) (proof that the quantity of drugs 

possessed exceeds an amount normally possessed for personal use, 

without more, can be sufficient to show an intent to 

distribute). 

Circumstantial proof of a defendant's intent 

includes the quantity of the drugs 

discovered, the packaging of the drugs, and 

the presence or absence of drug 

paraphernalia. 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. 

Shackleford v. Commonwealth, 32 Va. App. 307, 327, 528 S.E.2d 

123, 133 (2000) (citations omitted), aff'd, 262 Va. 196, 547 

S.E.2d 899 (2001). 

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Expert Testimony1

 "An expert witness may express an opinion relative to the 

existence or nonexistence of facts not within common knowledge, 

but 'the admission of expert opinion upon an ultimate issue of 

fact is impermissible because it invades the function of the 

fact finder.'" Zelenak v. Commonwealth, 25 Va. App. 295, 299, 

487 S.E.2d 873, 875 (1997) (quoting Llamera v. Commonwealth, 243 

Va. 262, 264, 414 S.E.2d 597, 598 (1992)). In Davis v. 

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

we approved the admissibility of expert opinion testimony on the 

issue of whether the amount of an illegal drug possessed by an 

accused was, under the circumstances, inconsistent with 

individual personal use. But see Llamera, 243 Va. at 265, 414 

S.E.2d at 599 (holding that expert testimony that quantity and 

packaging of cocaine suggested distribution was inadmissible 

opinion on ultimate issue of fact). 

 As we noted in Shackleford, 32 Va. App. at 327, 528 S.E.2d 

at 133, "expert testimony, usually that of a police officer," is 

one factor or circumstance which the fact finder may consider in 

determining whether drugs were possessed with intent to 

distribute. Because the facts and circumstances in each 

drug-related case vary, no uniform standard exists to 

 1

 For a discussion on the use of expert testimony to prove 

intent to distribute, see Thomas M. Fleming, Annotation, 

Admissibility, in Criminal Prosecution, of Expert Opinion 

Allegedly Stating Whether Drugs Were Possessed with Intent to 

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differentiate an amount that is always for personal use or for 

distribution. While many states have chosen to differentiate 

between the severity or degree of the offense based upon the 

amount in one's possession, Virginia recognizes that a drug 

dealer may not always possess a large amount of the illegal 

contraband. Thus, proof of whether one possesses drugs for 

personal use or for distribution depends on the facts of each 

case. The creation of an evidentiary presumption based on 

possession of a specific amount is left to the legislature. 

 The quantum of evidence necessary to prove an intent to 

distribute depends on the facts and circumstances of each case. 

In addition to evidence proving the quantity and type of drug 

possessed, the Commonwealth may introduce opinion testimony from 

law enforcement officers familiar with the habits and 

propensities of local drug users as to what amounts are 

inconsistent with personal use.2

 

Distribute – State Cases, 83 A.L.R. 4th 629 (1991 and Supp. 

2002). 2

 Appellant argues on brief that the trial judge erroneously 

relied on his prior experience in trying drug cases to find that 

appellant did not possess the drugs for personal use, but with 

the intent to distribute. The trial judge stated: 

The testimony of Mr. Wright is based upon 

[his] experience. The Court sees that 

testimony, too – and while that's not 

evidence in the case, the things that we see 

in court day in and day out certainly would 

or perhaps would not give some credibility 

to the expert testimony that we sometimes 

receive in the these cases. 

 "No ruling of the trial court . . . will be considered as a 

basis for reversal unless the objection was stated together with 

the grounds therefor at the time of the ruling, except for good 

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Sufficiency of the Evidence

 Appellant's argument is primarily that Wright's expert 

opinion is unreliable. He says that Wright's opinion was that 

possession of 7.36 grams of crack cocaine, a pager and $65 in 

small bills was inconsistent with personal use, and that evidence 

was not sufficient to prove an intent to distribute.

 As we have previously noted, Wright's expert testimony is 

admissible and is not unreliable as a matter of law. His 

opinion that those factors he considered are inconsistent with 

personal use can be considered by the fact finder together with 

other evidence to determine whether the Commonwealth's evidence 

proves beyond a reasonable doubt the intent to distribute. The 

record contains evidence, in addition to Wright's expert 

opinion, to support the finding that appellant possessed the 

cocaine with the intent to distribute it. The police found 

seven individually wrapped packets of crack cocaine weighing 

7.36 grams and having a street value of $700. Appellant's 

possession of $65 in currency in small denominations and a 

 

cause shown or to enable the Court of Appeals to attain the ends 

of justice." Rule 5A:18. 

 Without determining whether the judge's statement 

constituted a finding or ruling, appellant did not object to the 

trial judge's statement. Accordingly, appellant is precluded 

from challenging the finding or ruling on appeal. See Rule 

5A:18. Moreover, the record reflects no reason to invoke the 

good cause or ends of justice exceptions to Rule 5A:18. 

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pager, a device recognized as a tool of the drug trade, "the 

possession of which [is] probative of intent to distribute," are 

additional facts together with Wright's opinion testimony that 

support the finding of an intent to distribute. Glasco, 26 

Va. App. at 775, 497 S.E.2d at 156. Appellant possessed no 

devices with which to personally consume crack cocaine. 

Moreover, although appellant testified at trial, he never 

admitted using crack cocaine or stating that he possessed it for 

personal use; instead he denied possessing it. See Shackleford,

32 Va. App. at 327, 528 S.E.2d at 133 (noting absence of claim 

that defendant used drugs or presence of device with which to 

consume it). The Commonwealth's evidence, which was based on 

more than Wright's opinion, was competent, was not inherently 

incredible, and was sufficient to prove beyond a reasonable 

doubt that appellant possessed the cocaine with the intent to 

distribute it. Accordingly, we affirm the judgment of the trial 

court.

Affirmed.

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Benton, J., dissenting. 

 "Possession with intent to distribute is a crime which 

requires 'an act coupled with a specific intent.'" Stanley v. 

Commonwealth, 12 Va. App. 867, 869, 407 S.E.2d 13, 15 (1991) (en 

banc) (citation omitted). "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." Patterson v. Commonwealth, 215 Va. 

698, 699, 213 S.E.2d 752, 753 (1975). Moreover, "a basic 

procedural safeguard required by the Due Process Clause . . . 

[is] that the prosecution prove beyond a reasonable doubt every 

element of the charged offense." Green v. Young, 264 Va. 604, 

609, 571 S.E.2d 135, 138 (2002). When, as here, the Commonwealth 

must prove beyond a reasonable doubt the specific intent to 

distribute cocaine, the "[e]xistence of the intent . . . 

cannot be based upon surmise or speculation." Patterson, 215 Va. 

at 699, 213 S.E.2d at 753. 

 The evidence proved that when the police arrested Gerry 

Carlton Askew he possessed 7.36 grams of "crack cocaine," sixty 

five dollars, and a pager. The principle is well established 

that "possession of a small quantity [of a drug] creates an 

inference that the drug was for the personal use of the 

defendant." Dukes v. Commonwealth, 227 Va. 119, 122, 313 S.E.2d 

382, 383 (1984). See also Turner v. United States, 396 U.S. 398, 

423 (1970) (holding that 14.68 grams of cocaine "is itself 

consistent with [the accused] possessing the cocaine not for sale 

but exclusively for his personal use"). When asked by the 

prosecutor "is the evidence in this case consistent with the 

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personal use of narcotics?," the detective who testified as an 

expert witness said it was not and based his opinion on the 

following factors: 

The quantity of the drugs, coupled with the 

devices used to -- the quantity of the 

drugs, the pager, and the money combined 

together would be inconsistent with what a 

user -- inconsistent with strict personal 

use. 

 To further elaborate on the basis of his opinion, the 

detective testified that "the quantity is the most important 

factor." He also testified, however, that a cocaine user "could 

use a gram in a day." He explained this as follows: 

Q. How long will one gram usually last a 

crack head, as you put it? 

A. It depends on the amount of the 

addiction. 

Q. In your expert opinion, do you have an 

opinion on how you say they go back for 

more? 

A. Uh-huh. I mean, you could use a gram in 

a day. 

Q. If he can use a gram a day, he can use 

about 7 grams in a week? 

A. Yeah, and he could use 360 grams in a 

year. 

Q. Right. So pretty much -- so is it your 

testimony that people with cocaine 

addictions usually only buy it on a daily 

basis? 

A. Usually. 

Q. Enough to get them through the day? 

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A. Yes, ma'am. Actually, not enough to get 

them through a day. Enough to get them 

through maybe an hour. 
Q. That would depend on whether or not they 

have money or not; is that right? You say 

they don't normally stock up for the winter, 

so to speak? 

A. Correct. It definitely depends on the 

money because they're not giving it away. 

Q. Someone with more money could obviously 

buy more crack and still have it for 

personal use; is that right? 

A. Yes, ma'am. 

 The circumstances of Askew's arrest do not establish he was 

distributing or attempting to distribute the cocaine. The 

officer's testimony that crack cocaine users "usually" buy their 

cocaine at intervals of a day or less is insufficient to prove 

Askew's possession of an amount of cocaine which could be used by 

a person in seven days was with an intent to distribute. 

 The evidence also did not prove Askew was using the pager or 

had used it while he had the cocaine. Significantly, the officer 

testified that in his experience with people in general "everyone 

does [have] pagers [and cell phones]." He further acknowledged 

that "[j]ust because a person wears a pager on their belt doesn't 

necessarily make them a narcotics distributor." No evidence in 

this case proved a connection between Askew's possession of the 

pager and his intent in possessing the cocaine. 

 Similarly, no evidence proved a connection between Askew's 

money and the cocaine. The officer acknowledged that the $65 

Askew had in his possession was not a large amount of currency. 

Neither the detective nor any other witness testified that Askew 

exchanged any item in his possession for money. Moreover, the 

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denominations of "two 10s, seven $5 bills, and ten $1 bills" was 

not an unusual mixture for this small amount of currency. 

 The absence of paraphernalia to use the cocaine likewise 

does not establish that Askew intended to distribute the cocaine. 

Possession for personal use does not connote immediate use or 

require use in a public place. 

 The officer's testimony was patently, internally 

inconsistent regarding the factors that were suggestive of an 

intent to distribute and was susceptible of two interpretations. 

The rule is long standing that "'where a fact is equally 

susceptible of two interpretations one of which is consistent 

with the innocence of the accused, [the trier of fact] cannot 

arbitrarily adopt that interpretation which incriminates him.'" 

Corbett v. Commonwealth, 210 Va. 304, 307, 171 S.E.2d 251, 253 

(1969) (citation omitted). 

 It is well settled in Virginia that to 

justify conviction of a crime, it is not 

sufficient to create a suspicion or 

probability of guilt, but the evidence must 

establish the guilt of an accused beyond a 

reasonable doubt. It must exclude every 

reasonable hypothesis except that of guilt. 

The guilt of a party is not to be inferred 

because the facts are consistent with his 

guilt, but they must be inconsistent with 

his innocence. 

Cameron v. Commonwealth, 211 Va. 108, 110-11, 175 S.E.2d 275, 276 

(1970) (citations omitted) (emphasis added). 

 On the evidence in this record, the trial judge had to 

resort to speculation and surmise to find that Askew possessed 

the 7.36 grams of cocaine with the intent to distribute it. The 

officer's testimony is unambiguous that a user could consume that 

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quantity within seven days. "It is, of course, a truism of the 

criminal law that evidence is not sufficient to support a 

conviction if it engenders only a suspicion or even a probability 

of guilt. Conviction cannot rest upon conjecture." Smith v. 

Commonwealth, 192 Va. 453, 461, 65 S.E.2d 528, 533 (1951). The 

evidence in its totality was not consistent only with an intent 

to distribute; thus, it failed to prove beyond a reasonable doubt 

an intent to distribute the cocaine. 

 For these reasons, I would reverse the conviction for 

possession of cocaine with the intent to distribute it, and 

remand for imposition of an order of conviction on the offense of 

possession of cocaine. 

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