COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judges Benton and Kelsey 

Argued at Richmond, Virginia 

SHAWN SPRATLEY, S/K/A 

 SHAWN ALEXANDER SPRATLEY 

 MEMORANDUM OPINION* BY 

v. Record No. 0533-02-2 JUDGE D. ARTHUR KELSEY 

 MAY 20, 2003 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF HOPEWELL 

James A. Luke, Judge 

 (Christopher B. Ackerman, on brief), for 

appellant. Appellant submitting on brief. 

 Amy L. Marshall, Assistant Attorney General 

 (Jerry W. Kilgore, Attorney General, on 

brief), for appellee. 

Shawn Alexander Spratley claims that the trial court lacked 

sufficient evidence to find him guilty beyond a reasonable doubt 

of possessing cocaine with intent to distribute in violation of 

Code § 18.2-248(A). We disagree and affirm the conviction. 

 I. 

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

favorable to the Commonwealth." Morrisette v. Commonwealth, 264 

Va. 386, 389, 569 S.E.2d 47, 50 (2002). That principle requires 

us to "discard the evidence of the accused in conflict with that 

 

 * Pursuant to Code § 17.1-413, this opinion is not 

designated for publication. 
of the Commonwealth, and regard as true all the credible 

evidence favorable to the Commonwealth and all fair inferences 

that may be drawn therefrom." Holsapple v. Commonwealth, 39 

Va. App. 522, 528, 574 S.E.2d 756, 758-59 (2003) (en banc) 

(citation omitted); see also Wactor v. Commonwealth, 38 Va. App. 

375, 380, 564 S.E.2d 160, 162 (2002). 

 While patrolling in separate police cruisers, Hopewell 

Police Sergeant James Hamilton and Detective George Burgess 

received a dispatch to be on the lookout for Spratley, a "wanted 

subject" that police believed would be in a particular vehicle 

at a gas station in Hopewell. The officers drove to the gas 

station and stopped the vehicle described in the dispatch. They 

ordered the driver and Spratley, a passenger, to exit the 

vehicle and raise their hands. The driver immediately complied. 

Spratley, however, began "making movements with his left hand" 

and appeared to be "lifting" and "digging" to his left in the 

center of the vehicle. 

As Sergeant Hamilton approached the vehicle, Spratley 

turned to face him but continued digging in between the driver 

and passenger seat. While Sergeant Hamilton removed Spratley 

from the vehicle, Spratley made "a movement with his left hand 

towards the center of the vehicle." Moments later, at that 

exact location, the officers found a plastic bag containing 

twelve individually packaged bag corners of rock cocaine. 

- 2 -
 At trial, Sergeant Hamilton testified as an expert on 

personal drug use and concluded that the possession of twelve 

individually packaged bags of rock cocaine was inconsistent with 

personal use. Although no cell phone, pager or money was found 

on Spratley, Sergeant Hamilton testified that experienced drug 

dealers no longer carry all three items on their person. Today, 

he explained, it is common for these items to be divided among 

several individuals to avoid any association of the use of those 

items with drug trafficking. 

 Following the Commonwealth's presentation of the evidence, 

Spratley moved to strike the evidence, claiming that it was 

insufficient to prove that he either possessed the cocaine or that 

he intended to distribute it. The trial judge denied the motion 

and found that "the defendant did have constructive possession of 

these drugs" and that "twelve individually wrapped rocks of 

cocaine are sufficient evidence of possession with intent to 

distribute." Spratley received a fifteen-year sentence, with 

twelve years and six months suspended. 

 II. 

 Under settled principles, we "presume the judgment of the 

trial court to be correct" and reverse on sufficiency grounds 

only if the trial court's decision is "plainly wrong or without 

evidence to support it." Davis v. Commonwealth, 39 Va. App. 96, 

99, 570 S.E.2d 875, 876-77 (2002) (citations omitted); see also

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McGee v. Commonwealth, 25 Va. App. 193, 197-98, 487 S.E.2d 259, 

261 (1997) (en banc). 

When a jury decides the case, Code § 8.01-680 requires that 

"we review the jury's decision to see if reasonable jurors could 

have made the choices that the jury did make." Pease v. 

Commonwealth, 39 Va. App. 342, 355, 573 S.E.2d 272, 278 (2002) 

(en banc). "We let the decision stand unless we conclude no 

rational juror could have reached that decision." Id. The same 

standard applies when a trial judge sits as the fact finder 

because "the court's judgment is accorded the same weight as a 

jury verdict." Shackleford v. Commonwealth, 262 Va. 196, 209, 

547 S.E.2d 899, 907 (2001). 

Put another way, when faced with a challenge to the 

sufficiency of the evidence, a reviewing court does not "ask 

itself whether it believes that the evidence at the trial 

established guilt beyond a reasonable doubt." Jackson v. 

Virginia, 443 U.S. 307, 318-19 (1979) (emphasis in original and 

citation omitted).1 Instead, the relevant question is whether 

"any rational trier of fact could have found the essential 

 

1

 Unless the fact finder acted unreasonably, we consider it 

our duty not to "substitute our judgment for that of the trier 

of fact, even were our opinion to differ." Wactor, 38 Va. App. 

at 380, 564 S.E.2d at 162 (citing Commonwealth v. Presley, 256 

Va. 465, 466, 507 S.E.2d 72, 72 (1998)); see also Dowden v. 

Commonwealth, 260 Va. 459, 467, 536 S.E.2d 437, 467 (2000); 

Pease, 39 Va. App. at 355, 573 S.E.2d at 278; Harris v. 

Commonwealth, 38 Va. App. 680, 691, 568 S.E.2d 385, 390 (2002). 

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elements of the crime beyond a reasonable doubt." Id. at 319 

(emphasis in original). This deference applies not only to the 

historical facts themselves, but the inferences from those facts 

as well. "The inferences to be drawn from proven facts, so long 

as they are reasonable, are within the province of the trier of 

fact." Hancock v. Commonwealth, 12 Va. App. 774, 783, 407 

S.E.2d 301, 306 (1991). 

 A. 

 Spratley first contends that the trial court erred in 

finding that he constructively possessed cocaine. We disagree. 

The evidence presented by the Commonwealth was sufficient to 

support the trial court's decision. 

 To convict an individual of illegally possessing drugs, the 

Commonwealth must prove that the defendant possessed an illicit 

substance and appreciated its illegal "nature and character." 

Birdsong v. Commonwealth, 37 Va. App. 603, 607, 560 S.E.2d 468, 

470 (2002). The Commonwealth can establish constructive 

possession through "evidence of acts, statements, or conduct of 

the accused or other facts or circumstances which tend to show 

that the defendant was aware of both the presence and character 

of the substance and that it was subject to his dominion and 

control." Id. at 607-08, 560 S.E.2d at 470 (quoting Glasco v. 

Commonwealth, 26 Va. App. 763, 774, 497 S.E.2d 150, 155 (1998)). 

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Viewed in the light most favorable to the Commonwealth, 

Spratley's suspicious movements and close proximity to the 

cocaine provide sufficient evidence to support the trial court's 

finding that he constructively possessed the cocaine. 

Immediately upon approaching the vehicle, Sergeant Hamilton and 

Detective Burgess observed Spratley "lifting" and "digging" in 

between the driver and passenger seat. While being pulled from 

the vehicle, Spratley "made a movement with his left hand 

towards the center of the vehicle" —— the very area where, 

moments later, the officers discovered the narcotics in plain 

view. 

The trial judge, as fact finder, was entitled to infer from 

the evidence that Spratley was attempting to hide the cocaine 

and, therefore, knew of its nature and character. See, e.g., 

Brown v. Commonwealth, 5 Va. App. 489, 492, 364 S.E.2d 773, 774 

(1988) ("While mere proximity to a controlled substance is 

insufficient to establish possession, it is a factor to consider 

when determining whether the accused constructively possessed 

drugs."); Collins v. Commonwealth, 13 Va. App. 177, 178, 409 

S.E.2d 175, 175 (1991) (finding sufficient evidence to prove 

constructive possession where defendant "made a throwing motion 

under the vehicle with his right arm"). 

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B. 

Spratley also claims that the evidence fails to prove that 

he intended to distribute the cocaine. Again, we disagree. 

Absent direct evidence of drug distribution, "intent to 

distribute 'must be shown by circumstantial evidence.'" Askew 

v. Commonwealth, 40 Va. App. 104, 108, 578 S.E.2d 58, 60 (2003) 

(quoting Servis v. Commonwealth, 6 Va. App. 507, 524, 371 S.E.2d 

156, 165 (1988)). "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." 

Askew, 40 Va. App. at 109, 578 S.E.2d at 61 (quoting 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)). To be sure, "the absence of paraphernalia suggestive 

of personal use . . . is regularly recognized as a factor 

indicating an intent to distribute." Askew, 40 Va. App. at 108, 

578 S.E.2d at 60 (quoting Welshman v. Commonwealth, 28 Va. App. 

20, 37, 502 S.E.2d 122, 130 (1998) (en banc)) (internal brackets 

omitted). 

The amount of drugs seized from an individual can itself be 

a dispositive factor. "'Possession of a quantity greater than 

that ordinarily possessed for one's personal use may be 

sufficient to establish an intent to distribute it.'" Askew, 40 

Va. App. at 109, 578 S.E.2d at 60-61 (quoting Gregory v. 

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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), and Iglesias v. Commonwealth, 7 Va. App. 93, 110, 372 

S.E.2d 170, 180 (1988) (en banc)). "Indeed, quantity, when 

greater than the supply ordinarily possessed by a narcotics user 

for his personal use, is a circumstance which, standing alone, 

may be sufficient to support a finding of intent to distribute." 

Hunter v. Commonwealth, 213 Va. 569, 570, 193 S.E.2d 779, 780 

(1973). 

Expert testimony plays a leading role in the presentation 

of this evidence. "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." Askew, 40 Va. App. at 109, 578 

S.E.2d at 61 (quoting Shackleford, 32 Va. App. at 327, 528 

S.E.2d at 133); see also Davis v. Commonwealth, 12 Va. App. 728, 

733, 406 S.E.2d 922, 925 (1991). 

We conclude that the trial court was not plainly wrong in 

finding the evidence sufficient to prove Spratley intended to 

distribute the drugs he possessed. Spratley's bag contained 

twelve individually wrapped cocaine "rocks" commonly distributed 

in the retail drug trade. These rocks, in aggregate, weighed 

2.451 grams. Testifying as an expert on the characteristics of 

drug users, Sergeant Hamilton explained that such an amount was 

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inconsistent with personal use. Even when on a "binge," 

Hamilton testified, crack cocaine users "normally don't purchase 

12 rocks at a time." 

Possessing drugs in an amount "greater than that ordinarily 

possessed for one's personal use may be sufficient to establish 

an intent to distribute." Castaneda v. Commonwealth, 7 Va. App. 

574, 584, 376 S.E.2d 82, 87 (1989) (en banc). Sergeant Hamilton 

stated that crack users do not typically inventory narcotics for 

future use. Drug dealers do. We have held that even a lesser 

amount of drugs is probative of an intent to distribute. See

Christian v. Commonwealth, 33 Va. App. 704, 716, 536 S.E.2d 477, 

483 (2000) (en banc) (2.3 grams); Welshman, 28 Va. App. at 37, 

502 S.E.2d at 130 (five to six pieces totaling 1.44 grams); 

Poindexter v. Commonwealth, 16 Va. App. 730, 734-35, 432 S.E.2d 

527, 530 (1993) (1.39 grams); cf. Gregory, 22 Va. App. at 110, 

468 S.E.2d at 122 (3.4 grams in seven baggies). 

 In this case, the officers did not find, either on Spratley 

or in his vehicle, any cocaine user paraphernalia, such as crack 

stems or smoking pipes. See Askew, 40 Va. App. at 108, 578 

S.E.2d at 60 (recognizing the "absence of paraphernalia 

suggestive of personal use" as a factor indicating an intent to 

distribute). Nor did Spratley appear to be under the influence 

of any narcotics at the time of his arrest. In addition, no 

evidence suggested Spratley had used crack cocaine in the 

vehicle prior to his arrest. See Colbert v. Commonwealth, 219 

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Va. 1, 4, 244 S.E.2d 748, 749 (1978) ("[N]othing in the record 

suggests that the defendant personally used marijuana."). 

While the officers did not find large sums of money at the 

time of his arrest, this does not end our inquiry. Possession of 

large sums of cash, especially in small denominations, suggests 

on-going efforts at distribution. White v. Commonwealth, 25 

Va. App. 662, 668, 492 S.E.2d 451, 454 (1997) (en banc). That 

inference, however, presupposes the seller has already begun —— at 

the time of his arrest —— the process of reselling his inventory.2 

If arrested between the wholesale purchase and the retail resale, 

the dealer may have little, if any, money on him. Thus, while 

possession of large sums of money permits an inculpatory 

inference, the absence of large sums does not render all other 

incriminating evidence insufficient as a matter of law. 

Finally, Spratley argues that the absence of any cell phones 

or pagers or large sums of money found collectively in his 

possession negates any evidence of intent to distribute. As 

Sergeant Hamilton testified, however, in recent years drug 

traffickers at the street level have segmented their operations: 

"[A] lot of times what we are dealing with now is there is a 

 

2 See, e.g., Colbert, 219 Va. at 4, 244 S.E.2d at 749 (large 

amount of cash raised inference that defendant had "consummated 

numerous sales" prior to his arrest); Langston v. Commonwealth, 

28 Va. App. 276, 286, 504 S.E.2d 380, 385 (1998) ("The trial 

court could have inferred this money was the fruit of several 

drug transactions."). 

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person holding the money. Maybe a person who is holding the drugs 

and somebody else could be using the cell phone and the pager. 

That way not all three items or all four or however many items, 

are not found on one person." 

IV. 

In sum, the evidence supports the trial court's finding that 

Spratley possessed cocaine with intent to distribute in violation 

of Code § 18.2-248(A). We thus affirm the conviction. 

 Affirmed. 

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Benton, J., dissenting. 

 The evidence failed to prove Shawn Alexander Spratley 

actually possessed the cocaine the police officer found in the 

vehicle that was being driven by another man. I would hold that 

the evidence was insufficient to prove beyond a reasonable doubt 

that Spratley had constructive possession of the cocaine and, 

furthermore, certainly failed to prove he had an intent to 

distribute the cocaine. 

 I. 

 When, as here, the Commonwealth is required to prove beyond 

a reasonable doubt that an accused constructively possessed a 

controlled substance, "the Commonwealth must point to evidence 

of acts, statements, or conduct of the accused or other facts or 

circumstances which tend to show that the [accused] was aware of 

both the presence and character of the substance and that it was 

subject to his dominion and control." Powers v. Commonwealth, 

227 Va. 474, 476, 316 S.E.2d 739, 740 (1984). Furthermore, Code 

§ 18.2-250 provides that "[u]pon the prosecution of a person 

[for possession of a controlled substance], ownership or 

occupancy of . . . [a] vehicle upon or in which a controlled 

substance was found shall not create a presumption that such 

person either knowingly or intentionally possessed such 

controlled substance." 

 We apply well established principles when testing the 

sufficiency of circumstantial evidence. 

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 "[I]f the proof relied upon by the 

Commonwealth is wholly circumstantial, as it 

here is, then to establish guilt beyond a 

reasonable doubt all necessary circumstances 

proved must be consistent with guilt and 

inconsistent with innocence. They must 

overcome the presumption of innocence and 

exclude all reasonable conclusions 

inconsistent with that of guilt. To 

accomplish that, the chain of necessary 

circumstances must be unbroken and the 

evidence as a whole must satisfy the guarded 

judgment that both the corpus delicti and 

the criminal agency of the accused have been 

proved to the exclusion of any other 

rational hypothesis and to a moral 

certainty." 

Clodfelter v. Commonwealth, 218 Va. 619, 623, 238 S.E.2d 820, 

822 (1977) (citation omitted). 

 The trial judge had to speculate to conclude that Spratley 

possessed the bag of cocaine that "was lying on top of the seat 

. . . [and] somewhat underneath the catty corner of the 

armrest." No evidence directly proved Spratley possessed the 

cocaine. Indeed, the officer testified that he could not see 

Spratley's hands. Thus, the testimony that Spratley had reached 

to the left side of the vehicle indicates only a suspicious 

circumstance, not constructive possession. See United States v. 

Blue, 957 F.2d 106, 107-08 (4th Cir. 1992); Scruggs v. 

Commonwealth, 19 Va. App. 58, 61-62, 448 S.E.2d 663, 665 (1994). 

"[C]ircumstances of suspicion, [however,] no matter how grave or 

strong, are not proof of guilt sufficient to support a verdict 

of guilty. The actual commission of the crime by the accused 

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must be shown by evidence beyond a reasonable doubt to sustain 

his conviction." Clodfelter, 218 Va. at 623, 238 S.E.2d at 822. 

 In short, the evidence in this case failed to establish the 

cocaine was not under the armrest when Spratley reached to his 

left, and it clearly failed to establish the cocaine did not 

belong exclusively to the driver, who was the owner of the 

vehicle. "Whenever the evidence leaves indifferent which of 

several hypotheses is true, or merely establishes only some 

finite probability in favor of one hypothesis, such evidence 

does not amount to proof of guilt beyond a reasonable doubt." 

Sutphin v. Commonwealth, 1 Va. App. 241, 248, 337 S.E.2d 897, 

900 (1985). 

 The necessity to prove guilt beyond a reasonable doubt is 

illustrated by prior holdings. For example, in Crisman v. 

Commonwealth, 197 Va. 17, 87 S.E.2d 796 (1955), the police 

officer who detained the occupants of a car testified that he 

had been watching a house where illegal activities were 

suspected, that the car stopped in front of the house, and that 

the two defendants entered the house, remained a short time, and 

reentered the car. When the officer stopped the car, it was 

occupied by three individuals in the front seat and the two 

defendants in the rear seat. All the occupants denied 

possession of the heroin that was on floor in front of the rear 

seat. The Supreme Court held that the evidence was insufficient 

to sustain a conviction for drug possession, noting that any one 

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of the five men in the vehicle could have dropped the heroin on 

the floor, or it could have been placed there earlier by some 

unknown party, and that no proof established ownership of the 

heroin or identity of the person who placed it on floor of the 

car. Id. at 20, 87 S.E.2d at 798-99. In reversing the 

conviction, the Supreme Court explained that "our system of law 

[requires] that before life or liberty is exacted the evidence 

shall leave no reasonable doubt of the defendant's guilt." Id.

at 21, 87 S.E.2d at 799. 

 II. 

 "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, the 

Commonwealth must prove specific intent, an element of the 

charged offense, beyond a reasonable doubt. See Jackson v. 

Virginia, 443 U.S. 307, 315-16 (1979); In re Winship, 397 U.S. 

358, 363 (1970). Therefore, "[e]xistence of the intent . . . 

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

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

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 The principle is well established in Virginia that a 

relatively small quantity of cocaine warrants the inference that 

an accused possessed it for personal use. See Dukes v. 

Commonwealth, 227 Va. 119, 122, 313 S.E.2d 382, 383 (1984). The 

police seized only 2.45 grams of cocaine. Moreover, the officer 

testified that any user of cocaine could buy twelve "rocks at 

one time, packaged the exact same . . . way." Thus, as in 

Dukes, "[t]he mode of packaging [of the cocaine] and the way the 

[package was] hidden are as consistent with possession for 

personal use as they are with intent to distribute." 227 Va. at 

123, 313 S.E.2d at 384. In addition, the officer testified that 

the twelve pieces of cocaine he seized could be consumed "four 

in a day" by a user. Thus, the evidence proved a user could 

consume the seized cocaine within three days. No evidence 

indicated an intent to distribute. I would hold, therefore, 

that this evidence manifestly failed to prove an intent to 

distribute the cocaine. 

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