COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Coleman and Senior Judge Cole 

Argued at Richmond, Virginia 

BOBBY ALEXANDER SHELTON 

 MEMORANDUM OPINION* BY 

v. Record No. 0712-94-2 JUDGE SAM W. COLEMAN III 

 FEBRUARY 13, 1996 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND 

Robert W. Duling, Judge 

 Maureen L. White (David J. Johnson, 

 Public Defender, on brief), for appellant. 

 Michael T. Judge, Assistant Attorney General 

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

 brief), for appellee. 

 Bobby A. Shelton was convicted for possession of cocaine 

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

contends the trial judge erred by taking judicial notice of facts 

from other cases that the quantity of cocaine proved intent to 

distribute and by finding the evidence sufficient to prove an 

intent to distribute. We hold that the trial court did not take 

judicial notice of facts outside the record and we find the 

evidence sufficient to prove intent to distribute. Therefore, we 

affirm the conviction. 

 The evidence proved that Officers Scott Shapiro and John 

O'Kleasky approached a parked vehicle at 2:30 a.m. and saw 

Shelton sitting in the front passenger seat, making frantic 

 

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

designated for publication. 
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movements with his right hand, bending down, and looking over his 

right shoulder. Shelton threw a rolled up plastic bag to his 

left. The bag hit the driver's side window and fell to the left 

side of the driver's seat. The officers opened the door and 

seized the bag, later determined to contain 46.5 grams of 

cocaine. Shelton had on him a pager and $732 in currency when 

arrested. In response to questioning, Shelton stated that he was 

working for a person named "Buzz," that the drugs were left in 

the car by another person, that the drugs were not his, and that 

the money was his girlfriend's. Shelton later stated that the 

pager belonged to his girlfriend and that he did not throw the 

bag. 

 Shelton moved to strike the Commonwealth's evidence. He 

asserted that the Commonwealth had failed to meet its burden of 

proving he intended to distribute drugs because no expert 

testimony was offered to show that the quantity of drugs found 

was inconsistent with personal use. In response, the 

Commonwealth argued that the evidence was sufficient to prove 

intent to distribute and that it was not obligated to put forth 

expert testimony as to quantity when it is apparent to the fact 

finder that the quantity is not consistent with personal use. 

Asserting that the trial judge as fact finder could apply the 

knowledge gained from other cases involving possession with 

intent to distribute, the Commonwealth argued that the judge 

could find on these facts that 46.5 grams of cocaine is a 
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quantity that shows intent to sell. The trial court overruled 

Shelton's motion to strike. 

 This Court "must view the evidence in the light most 

favorable to the Commonwealth, granting to it all reasonable 

inferences fairly deducible therefrom." Novak v. Commonwealth, 

20 Va. App. 373, 373, 457 S.E.2d 402, 411 (1995). Where intent 

is proved by circumstantial evidence, as in this case, "all 

necessary circumstances proved must be consistent with guilt and 

inconsistent with innocence and exclude every reasonable 

hypothesis of innocence." Rice v. Commonwealth, 16 Va. App. 370, 

372, 429 S.E.2d 879, 880 (1993) (citations omitted). 

 From our review of the record, the trial judge did not take 

judicial knowledge of a fact or facts proven in other cases that 

the judge had heard. Admittedly, in considering Shelton's motion 

to strike the evidence, the trial judge initially read from 

2 Charles E. Friend, The Law of Evidence in Virginia § 19-1 (4th 

ed. 1993), concerning a judge's authority to take judicial notice 

of certain facts. However, in determining whether the evidence 

proved intent to distribute, the trial judge analyzed the 

officers' testimony, found it credible, and considered whether 

the quantity of cocaine, the statements by the accused, and his 

possession of a pager and $732 in cash proved that Shelton 

intended to possess the cocaine. The judge did not decide the 

issue of intent to distribute by resorting to judicial notice of 

facts proven in other cases. The record demonstrates that the 
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judge ruled, based on the evidence before him, that the 

Commonwealth had sufficiently proven intent based on testimony 

and physical evidence in this case. The fact that the trial 

judge commented that the amount of cocaine was the most he had 

seen in any case he had heard did not constitute taking judicial 

notice of a fact from another or other cases. Accordingly, we 

reject the appellant's contention that the trial judge relied 

upon judicial notice of facts proven in other cases in order to 

find that Shelton intended to distribute the cocaine he 

possessed. 

 To prove intent to distribute, the Commonwealth introduced a 

pager and $732 in cash, statements of the accused, and the 46.5 

grams of cocaine. The quantity of drugs is a "circumstance to be 

considered" in determining whether it is for personal use or for 

distribution. Dukes v. Commonwealth, 227 Va. 119, 122, 313 

S.E.2d 382, 383 (1984). A large amount of money is a fact that 

may be considered as evidence that the defendant did not possess 

drugs for personal use. Servis v. Commonwealth, 6 Va. App. 507, 

524, 371 S.E.2d 156, 165 (1988). See also Minor v. Commonwealth, 

6 Va. App. 366, 372, 369 S.E.2d 206, 209 (1988). Shelton's 

conflicting statements are other evidence the fact finder could 

consider to prove intent to distribute. He gave conflicting 

accounts concerning ownership of the pager and his actions at the 

scene. His false and contradictory statements may be considered 

as evidence attempting to conceal his guilt. Smith v. 
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Commonwealth, 192 Va. 453, 461, 65 S.E.2d 528, 533 (1951). Thus, 

based upon the quantity of drugs, the amount of money, the pager, 

and Shelton's statements, the trial judge could reasonably infer 

that Shelton intended to distribute the cocaine. Monroe v. 

Commonwealth, 4 Va. App. 154, 156, 355 S.E.2d 336, 337 (1987). 

 Shelton also alleges the Commonwealth introduced 

insufficient evidence to prove beyond a reasonable doubt his 

intent to distribute cocaine. The evidence of the pager, money, 

quantity of drugs, and conflicting statements is consistent with 

guilt and precludes every hypothesis of innocence. Where the 

quantity of drugs and other circumstances are sufficient that the 

fact finder can reasonably infer an intent to distribute, it is 

not necessary that the Commonwealth introduce expert testimony 

that based on the witness's experience, in his opinion, the 

quantity of drugs is inconsistent with personal use. For the 

foregoing reasons, we hold that the evidence is sufficient to 

prove beyond a reasonable doubt that the defendant possessed the 

cocaine with the intent to distribute it. Therefore, we affirm 

Shelton's conviction for possession of cocaine with intent to 

distribute. 

 Affirmed. 
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BENTON, J., dissenting. 

 I would hold that the trial judge erred in judicially 

noticing that the quantity and packaging of cocaine indicated an 

intent to distribute. Thus, I would also hold that the evidence 

in this record failed to prove beyond a reasonable doubt that 

(1) the cocaine seized from the automobile was an amount 

inconsistent with personal use or (2) Shelton possessed the 

cocaine with an intent to distribute it. 

 "Judicial notice is a short cut to avoid the necessity for 

the formal introduction of evidence in certain cases where there 

is no need for such evidence." Williams v. Commonwealth, 190 Va. 

280, 291, 56 S.E.2d 537, 542 (1949). However, a judge may only 

judicially notice facts that are common knowledge or easily 

ascertainable by reference to reliable sources. Griswold v. 

Commonwealth, 19 Va. App. 477, 484, 453 S.E.2d 287, 290, reversed 

en banc on other grounds, 21 Va. App. 22, 25, 461 S.E.2d 411, 412 

(1995). 

 Acknowledging the lack of evidence of intent to distribute, 

the prosecutor urged the trial judge to judicially notice that 

the amount proved intent to distribute. He specifically argued 

as follows: 

 As to the intent, Judge, there's got to 

be a point where, first of all, the 

Commonwealth is only obligated to put forth 

the testimony of an expert witness when the 

trier of fact would need expert testimony. 

The Court has heard cases involving 

possession with intent, has on many occasions 

passed judgment on amounts, lack thereof, 
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statements, other indicia of distribution. 

This case involves 46 and a half grams. 

 What distinguishes this case from the run 

of the mill possession with intent case is 

the fact that it's in chunks. An expert 

could very well have come in and said, "Yes, 

. . . that amount is a large amount. It 

would be expensive on the street." [Defense 

counsel's] question to the expert would have 

had to have been, "Sir, couldn't this person 

have bought the stuff, to hoard it, to last 

him from now until the end of the summer?" 

And the answer would have had to have been, 

"Yes," or the expert would have lost his 

credibility. The expert also could have 

said, "I've seen people chip off crack 

cocaine on the street." The Court has heard 

it a thousand times. The problem is [defense 

counsel] can't explain it away because . . . 

Shelton is working for someone named Buzz. 

Then he says a dude left it in the car. Then 

he says he threw it but didn't really know 

what it was. Then at the bottom down at 

headquarters he says he didn't throw it. He 

didn't really know what it was. And the 

final lie was that it was his girl's pager. 

Now, it was either his girl's pager or a 

guy's pager. Either he knew what it was or 

he didn't. And either he threw it or he 

didn't. But his dishonesty is a 

consideration the Court can take into account 

as to his knowledge, intent, and as to 

whether -- it's knowledge. It's evidence of 

his guilt. The Court has the pager, the 

money, and the amount. 

 There can't be a need to call in an 

expert for 46 grams. There's got to be a 

point where the Court is allowed to take 

judicial notice of the amount otherwise we 

can haul in a dumpster full of cocaine and 

counsel can make the argument the person 

intended to hold on to the cocaine from now 

until he died. He got a good sale and won't 

have to repurchase. (emphasis added). 

 In rendering his decision, the trial judge quoted 2 Charles 

E. Friend, The Law of Evidence in Virginia, § 19-1 (4th ed. 
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1993), and made the following statement of his judicial notice: 

 I just wanted to take a minute to review 

some of the comments in the law pertaining to 

judicial notice and Mr. Friend states, among 

other things, in speaking about a trial "may 

require that scores or even hundreds of 

individual bits of evidence be introduced for 

the consideration of the trier of the fact. 

However, many of these bits and pieces which 

are so obvious and indisputable that to 

require formal proof of them would be both a 

waste of time and an obstruction of the 

orderly process of justice." And further he 

makes reference to the extent to which jurors 

may employ their own knowledge as to matters 

not in evidence, which would also pertain to 

a judge trying a case without a jury. And he 

goes on to say that jurors may make use of 

that reason and common sense and the 

knowledge and experience gained by them in 

everyday life. 

 In his finding of facts, the trial judge commented on the 

quantity of the cocaine, its packaging, and the purported 

significance of the cocaine being broken into chunks. However, 

the record contains no evidence regarding the significance of 

these matters or their relationship to personal use or methods of 

distribution. Finding that "it's probably the largest amount 

that I've seen packaged in this fashion in a long time," the 

trial judge ruled that the amount coupled with the packaging and 

other facts of the case proved Shelton possessed the cocaine with 

an intent to distribute it. 

 The trial judge erroneously relied upon his own knowledge 

from other cases in inferring that one and a half ounces of 

cocaine was a quantity that indicated an intent to distribute. 

Moreover, the Supreme Court has stated that a "relatively small 
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quantity of [drugs] in the defendant's possession warrants the 

inference that it was for [the defendant's] personal use." Dukes 

v. Commonwealth, 227 Va. 119, 122-23, 313 S.E.2d 382, 384 (1984). 

 In this case, the Commonwealth asked the trial judge to infer 

from his knowledge that 1.5 ounces of cocaine was not a 

relatively small quantity, that it was a quantity that was not 

consistent with personal use, and further that it indicated an 

intent to distribute. The evidence provides no foundation from 

which those inferences could be drawn. 

 Moreover, no evidence proved that the manner of packaging 

was significant. Indeed, no evidence in this record addressed 

the method of packaging. As the Supreme Court stated in the 

following passage in Dukes, users purchase packaged drugs and, 

thus, the method of packaging often may be of little value in 

distinguishing whether possession is for personal use or 

distribution: 

 The mode of packaging and the way the 

packages were hidden are as consistent with 

possession for personal use as they are with 

intent to distribute. It is just as 

plausible that the defendant purchased the 

packaged substance for personal use as it is 

that she packaged the marijuana for 

distribution. 

227 Va. at 123, 313 S.E.2d at 384. 

 "While courts take judicial notice of such facts as are 

commonly known from human experience, 'facts which are not 

judicially cognizable must be proved, even though known to the 

judge or to the court as an individual.'" Darnell v. Barker, 179 
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Va. 86, 93, 18 S.E.2d 271, 275 (1942)(citation omitted). The 

judge's knowledge of the significance of a particular quantity of 

cocaine and packaging which he apparently obtained from having 

heard evidence in other cases, does not permit the Commonwealth 

to dispense with "proof of facts not judicially cognizable" and 

to rely upon proof from other cases. Id. "The general rule is that the court will not 

travel outside the record of the case before 

it in order to take notice of the proceedings 

in another case, even between the same 

parties and in the same court, unless the 

proceedings are put in evidence. The reason 

for the rule is that the decision of a cause 

must depend upon the evidence introduced. If 

the courts should recognize judicially facts 

adjudicated in another case, it makes those 

facts, though unsupported by evidence in the 

case at hand, conclusive against the opposing 

party; while if they had been properly 

introduced they might have been met and 

overcome by him." 

Bernau v. Nealon, 219 Va. 1039, 1043, 254 S.E.2d 82, 85 

(1979)(citation omitted). 

 I would hold that no evidence in this record proved the 

significance of the quantity of cocaine or the method by which 

the cocaine was placed in the bag. Shelton's mere possession of 

one and a half ounces of cocaine in a bag while he had money and 

a pager do not prove beyond a doubt that Shelton possessed the 

cocaine with the intent to distribute.