COURT OF APPEALS OF VIRGINIA 

Present: Judges Baker, Bray and Senior Judge Hodges 

Argued at Norfolk, Virginia 

DERRICK T. KELLY, S/K/A 

 DERRICK T. KELLEY 

 MEMORANDUM OPINION*

v. Record No. 2970-95-1 BY JUDGE JOSEPH E. BAKER 

 NOVEMBER 12, 1996 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS 

Verbena M. Askew, Judge 

 Joseph R. Caprio (Joseph R. Caprio, P.C., on 

brief), for appellant. 

 Daniel J. Munroe, Assistant Attorney General 

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

brief), for appellee. 

 Derrick T. Kelly (appellant), sometimes known as Derrick T. 

Kelley, appeals from his bench trial conviction by the Circuit 

Court of the City of Newport News (trial court) for possession of 

heroin with intent to distribute in violation of Code § 18.2-248. 

 The sole issue presented by this appeal is whether the evidence 

was sufficient to convict appellant. Upon familiar principles, 

we view the evidence in the light most favorable to the 

Commonwealth, granting to it all reasonable inferences fairly 

deducible therefrom. Higginbotham v. Commonwealth, 216 Va. 349, 

352, 218 S.E.2d 534, 537 (1975). 

 Viewed accordingly, the record discloses that on January 23, 

 

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

designated for publication. 
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1995 Newport News Anti-Crime Task Force Police Officer W. S. 

Warren (Warren) and Trooper R. Newby (Newby) received information 

from a fellow officer, Newport News Police Sergeant Penny 

(Penny), that two black males, in a residence known as 533-B 14th 

Street, were in possession of a quantity of narcotics. Penny 

told the officers that the males would be leaving that residence 

within one-half hour using a white Ford truck. Warren and Newby 

"responded to the area in an unmarked vehicle." Upon arrival, 

they observed a white Ford pickup truck fitting the description 

given them by Penny. At the time, there were no other trucks in 

the area. Within ten minutes, the officers observed two black 

males walk from the apartment, look around, and approach the 

truck. One went to the driver's side, the other to the passenger 

side. Warren saw appellant "bend down in the passenger side" of 

the truck. The males then entered the truck and drove off. The 

officers followed them and observed that the truck's taillight 

was out. Warren called for assistance to stop the truck for that 

traffic infraction. 

 The driver consented to a search of the truck. The search 

revealed a bag containing heroin by a bench-type seat, leaning 

against the transmission hump on the passenger side where 

appellant had been seated. The officers also found a film 

canister containing cocaine and two bags of marijuana. We hold 

that this evidence is sufficient to support the trial court's 

conclusion that appellant was aware of the presence of the 
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narcotics found and, therefore, was in constructive possession 

thereof. Hamilton v. Commonwealth, 16 Va. App. 751, 754, 433 

S.E.2d 27, 28-29 (1993). 

 The evidence is also sufficient to support the trial court's 

finding of intent to distribute. Trooper Newby, who qualified as 

an expert in illegal narcotics, opined that the heroin was 

packaged as is usual for sale in the Newport News area. He also 

testified that the quantity contained in the ten packets of 

heroin was inconsistent with personal use. No evidence contained 

in this record indicates that appellant possessed the narcotics 

for his personal use. Moreover, the officers searched 

appellant's person incident to his arrest and discovered $131 in 

one of his pants pockets. 

 In Poindexter v. Commonwealth, 16 Va. App. 730, 432 S.E.2d 

527 (1993), this Court affirmed a conviction for possession of 

cocaine with intent to distribute based upon similar evidence. 

In appellant's case, we hold that the evidence supports the trial 

court's finding of intent to distribute. 

 For the reasons stated, the judgment of the trial court is 

affirmed. 

 Affirmed.