Shackleford v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges Coleman, Frank and Senior Judge Hodges
Argued at Salem, Virginia

DORIAN LEE-KIRK SHACKLEFORD
OPINION BY
v. Record No. 2883-98-3 JUDGE SAM W. COLEMAN III
MARCH 28, 2000
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG
Mosby G. Perrow, III, Judge

Elizabeth P. Murtagh, Senior Assistant Public
Defender (Office of the Public Defender, on
brief), for appellant.

John H. McLees, Jr., Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.

Dorian Lee-Kirk Shackleford, a juvenile, was transferred to

the circuit court for trial as an adult and was convicted in a

bench trial of possession with intent to distribute cocaine in

violation of Code § 18.2-248, transporting cocaine into the

Commonwealth with the intent to sell or distribute in violation

of Code § 18.2-308.4(b), and possession of a firearm with intent

to distribute a controlled substance in violation of Code

§ 18.2-248(c). On appeal, Shackleford contends that the trial

court erred by: (1) denying his motion to dismiss the

indictment for lack of jurisdiction because his father was not

notified of the transfer hearing or the appeal from that

hearing; (2) denying his motion to dismiss because his mother
was not notified of the appeal pending in the circuit court of

the transfer hearing; (3) denying his motion to continue the

appeal of the transfer proceedings due to his mother's lack of

notice; (4) denying his motion to suppress his confession and

the evidence found during the search of the taxicab; and

(5) finding the evidence sufficient to support his convictions.

Finding no error, we affirm.

BACKGROUND

On January 7, 1998, Special Agent J.C. Miers and Trooper Mike

Hall were conducting an undercover drug interdiction at the

Greyhound bus station in Lynchburg, Virginia. Miers and Hall

observed Shackleford exit a bus with a single carry-on bag and

enter the bus terminal. Shackleford later approached Miers and

asked for the phone number of the local cab company. After

Shackleford called to summon a cab, Miers approached him,

displaying his badge. Shackleford accompanied Miers to a remote

corner of the bus terminal to speak with him. Shackleford stated

that he was traveling from New York to Lynchburg to visit his sick

aunt in the hospital. He then stated that he was going to take a

cab to some other location and his aunt would pick him up later

and take him to her residence. Miers testified that he became

suspicious and asked Shackleford for permission to search his bag.

Shackleford did not consent, stating that the bag contained his

aunt's personal items. The taxicab arrived and Shackleford left.

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Shackleford advised the cab driver to take him to a motel on the

outskirts of town, which further aroused Miers' suspicions. While

following the cab to the motel, Miers and Hall observed

Shackleford shifting from side to side and leaning over in the

cab. Hall contacted a K-9 unit and requested that an officer meet

him at the motel.

When Shackleford arrived at the motel, a uniformed police

officer was waiting by his patrol vehicle. Shackleford exited the

cab and set his bag on the ground. Miers approached Shackleford

and informed him that he was free to go but that his bag would be

detained in order to allow the K-9 unit to sniff the bag. Miers

testified that Shackleford consented to the search of his bag,

stating that "there's no drugs or anything in it."

Simultaneously, Hall requested and received permission from the

cab driver to search the taxicab where he discovered a

semi-automatic weapon and an oblong package on which the K-9 unit

alerted. The package contained fourteen individual plastic

baggies of crack cocaine. The cab driver stated that he had

cleaned his taxi the previous night and that Shackleford was the

first fare of the day. The cab driver testified that, although he

was unable to visually observe Shackleford while en route to the

motel, the cab driver heard what sounded like someone "stuffing" a

bag or paper under the seat.

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 Shackleford was arrested and transported to the police

station. Miers advised Shackleford of his Miranda rights and

because he was a minor, his right to have his parents present.

Shackleford signed a waiver-of-rights form and, without requesting

his parents' presence, made a statement. Shackleford also

informed Miers that he was a naturalized citizen and resident of

New York.

The Commonwealth filed three petitions in juvenile and

domestic relations district court charging Shackleford with the

three drug-related offenses. The petitions listed Shackleford's

mother's name and address. The petition also listed

Shackleford's father's name; however, the petition stated only

that he lived in Kingston, Jamaica and gave no further

information.

The juvenile court held a transfer hearing pursuant to Code

§ 16.1-269.1. The transfer report listed Leon Shackleford as

Shackleford's father and listed his address as Kingston,

Jamaica, but provided no further information. The juvenile

court judge found probable cause to believe that Shackleford had

committed the charged offenses, see Code § 16.1-269.1(A)(2), and

found that Shackleford was "not a proper person to remain within

the jurisdiction of the juvenile court." Code

§ 16.1-269.1(A)(4). Accordingly, the juvenile court transferred

Shackleford to the circuit court to be tried as an adult.

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 Prior to hearing the appeal of the transfer decision in

circuit court, Shackleford filed a motion to continue the

proceedings because his mother had not been notified. The

circuit court denied the motion. Shackleford was subsequently

indicted in circuit court on the three charges. After

indictment, Shackleford filed a motion to dismiss arguing that

the trial court lacked jurisdiction because neither parent had

been notified of the appeal of the transfer hearing and because

his father was not notified of the filing of the petition and

transfer hearing in juvenile court. The trial court denied the

motion.

Prior to trial, Shackleford filed a motion to suppress his

statement and the physical evidence found in the taxicab. He

argued that his statement was obtained in violation of his

constitutional rights in that he was not adequately advised of his

right to counsel and his rights under the Vienna Convention in

that he was denied his right to consult a member of the Jamaican

Embassy in Washington, D.C. Shackleford further argued that the

firearm and the cocaine should be suppressed because the discovery

of the physical evidence was tainted by his illegal detention

after he exited the taxicab. The trial court denied the motion.

The circuit court found Shackleford guilty of the three

charges and sentenced him to a total of twenty-three years with

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sixteen years suspended, a $2,500 fine, and suspension of his

operator's license for six months.

ANALYSIS

A. Jurisdiction

1. Father's Notification

Shackleford argues that the circuit court lacked jurisdiction

because the juvenile court did not comply with the mandatory

notice requirements of Code §§ 16.1-263 and -264 by failing to

provide notice of the transfer hearing to his father.

Code § 16.1-263(A) states that "[a]fter a petition has been

filed, the court shall direct the issuance of summonses . . . to

the parents . . . ." 1 Code § 16.1-263 further provides that

notice "of subsequent proceedings shall be provided to all parties

in interest." Code § 16.1-263(B). "We have held that 'compliance

with [Code §§ 16.1-263 and 16.1-264] relating to procedures for

instituting proceedings against juveniles, are mandatory and

jurisdictional. The failure to strictly follow the notice

procedures contained in the Code [deny the defendant] a

substantive right and the constitutional guarantee of due

process.'" Weese v. Commonwealth, 30 Va. App. 484, 489, 517

1
In 1999, the General Assembly amended Code § 16.1-263 to
provide that after a petition is filed alleging a juvenile
felony or delinquent act, a summons shall be directed "to at
least one parent," rather than to the "parents" as provided in
the version in effect when the petition was filed against
Shackleford.

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S.E.2d 740, 743 (1999) (quoting Karim v. Commonwealth, 22 Va. App.

767, 779, 473 S.E.2d 103, 108-09 (1996) (en banc)). Thus, we have

held that where a juvenile court conducts a delinquency proceeding

without notifying the parents or certifying that notice cannot

reasonably be obtained, a conviction order resulting from the

proceedings is void. See Baker v. Commonwealth, 28 Va. App. 306,

315, 504 S.E.2d 394, 399 (1998), aff’d per curiam, 258 Va. 1, 517

S.E.2d 219 (1999); Williams v. Commonwealth, 26 Va. App. 776,

781-82, 497 S.E.2d 156, 159 (1998); Karim, 22 Va. App. at 779-80,

473 S.E.2d at 108-09. Furthermore, where the void juvenile court

order purports to transfer jurisdiction over the juvenile to a

circuit court to be tried as an adult, the circuit court is

without jurisdiction and the resulting conviction orders are void,

unless the necessary parties have waived the defect or the defect

has been otherwise corrected. See e.g. Baker, 28 Va. App. at 313,

504 S.E.2d at 398; Karim, 22 Va. App. at 779-80, 473 S.E.2d at

108-09.

In Moore v. Commonwealth, ___ Va. ___, ___ S.E.2d ___ (2000)

(No. 990776), the Virginia Supreme Court held that, in cases where

the offense was committed on or after July 1, 1996, the notice

requirements of Code §§ 16.1-263 and -264 are subject to waiver by

virtue of Code § 16.1-269.1(E), which was enacted by the General

Assembly in 1996, and any defect or error in the proceedings is

cured if not raised before indictment. The Supreme Court held

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that Code § 16.1-269.1(E) controls, which provides in relevant

part: "[a]n indictment in the circuit court cures any error or

defect in any proceeding held in the juvenile court except with

respect to the juvenile's age." The Supreme Court found that,

although "the Commonwealth's failure to notify the defendant's

biological father of the initiation of juvenile court proceedings

. . . created a defect in those proceedings[,] . . . that defect

was cured when the grand jury returned indictments against the

defendant of the offenses certified to it by the juvenile court."

The curative statutory provision of Code § 16.1-269.1(E) allowed

the circuit court to exercise its subject matter jurisdiction.

Here, because the offenses were committed after July 1,

1996, our decision is controlled by Code § 16.1-269.1(E) and by

the Supreme Court's decision in Moore. See Moore v.

Commonwealth, 14 Va. App. 83, 85, 414 S.E.2d 859, 860 (1992)

(noting that panels of the Court of Appeals are bound by Supreme

Court precedent). Therefore, because Shackleford failed to

raise the jurisdictional issue of lack of notice to his father

before the indictments were returned in the circuit court,

failure to comply with the parental notification provisions of

Code §§ 16.1-263 and -264 did not deprive the circuit court of

jurisdiction.

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 2. Notification of Appeal

Shackleford argues that the circuit court failed to notify

his parents of the appeal from the transfer hearing. The juvenile

court served Shackleford's mother with a summons, and she attended

the juvenile court hearing. However, Shackleford argues that the

failure of the circuit court to serve notice upon his mother and

father violated the mandate of Code §§ 16.1-263 and -264 and

without such notice in the de novo proceeding, the circuit court

lacked jurisdiction to hear the petition. Shackleford claims the

circuit court violated the mandate of Code § 16.1-263(B), which

requires that notice "of subsequent proceedings . . . be provided

to all parties in interest." Shackleford asserts that this

requirement is mandatory and jurisdictional.

We find that, with respect to Shackleford's mother, the

constitutional and jurisdictional notice requirements were

satisfied by notifying Shackleford's mother of the pendency of the

petition and hearing in the juvenile court. See Weese, 30 Va.

App. at 491, 517 S.E.2d at 744 (finding that additional notice of

subsequent proceedings in circuit court is not constitutionally

required and jurisdictional). Therefore, so long as Shackleford's

mother received notice of the nature of the petition and a summons

indicating the time, date, and place of the initial hearing, the

constitutional and jurisdictional notice requirements were

satisfied. Because Shackleford's mother received notice of the

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original proceedings, she had the opportunity, following

Shackleford's appeal, to appear and be involved in subsequent

proceedings, including the de novo hearings in the circuit court.

"Although Code § 16.1-263(B) may require additional notice of

'subsequent proceedings' where necessary to inform the parent or

guardian of such proceedings, failure to give such notice does not

divest the court of jurisdiction . . . ." Weese, 30 Va. App. at

492, 517 S.E.2d at 744.

Moreover, to the extent that Shackleford argues that the

circuit court failed to notify his father of the appeal from the

transfer hearing, he has waived any challenge to jurisdiction

because he failed to raise the issue prior to indictment. See

Code § 16.1-269.1(E).

B. Motion for Continuance

Shackleford argues that the trial court erred in failing to

continue the April 28, 1998 hearing of the appeal from the

transfer decision because his mother was not present.

Shackleford objected to his mother's absence because he was

unable to call her as a witness, thus, depriving him of a fair

hearing. Shackleford asserts on appeal that his mother would

have testified to his immigration status, his pending petition

for amnesty, threats made against him and his family, and "his

family history." Shackleford asserts that this testimony was

essential in determining whether he was a proper person to

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remain before the juvenile court. "'The decision whether to

grant a continuance is a matter within the sound discretion of

the trial court.'" Lowery v. Commonwealth, 9 Va. App. 304, 307,

387 S.E.2d 508, 509 (1990) (quoting Venable v. Venable, 2 Va.

App. 178, 181, 342 S.E.2d 646, 648 (1986)).

The Virginia Supreme Court has established a
two-pronged test for determining whether a
trial court's denial of a continuance
request is reversible error. Under this
test, we may reverse a trial court's denial
of a motion for a continuance only if it
appears from the record: (1) that the court
abused its discretion and (2) that the
movant was prejudiced by the court's
decision.

Lebedun v. Commonwealth, 27 Va. App. 697, 712-13, 501 S.E.2d

427, 434 (1998) (citation omitted).

Prior to the hearing, defense counsel argued that the court

file was devoid of any reference regarding notification of the

hearing to Shackleford's mother. Defense counsel asserted that

Shackleford's "mother is a necessary party to the proceedings" and

that although the probation officer may "be able to provide some

of the information," counsel objected to Shackleford's mother not

being present. Probation Officer Gerald Brown testified that

Shackleford's mother was informed of the hearing but she contacted

Brown and informed him that she was unable to attend the hearing

because of financial and work-related considerations. Brown also

testified regarding Shackleford's immigration status, his pending

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petition for amnesty, and the threats made against Shackleford and

his family.

We find no abuse of discretion in the trial judge's denial of

the motion to continue the hearing. Although Shackleford objected

to the lack of his mother's presence at the hearing, he never

proffered what his mother's testimony would be. Moreover, the

matters Shackleford now asserts his mother would have testified

about were matters addressed by the probation officer at the

hearing. Accordingly, Shackleford has failed to show that he was

prejudiced by the court's refusal to continue the hearing.

Further, there was a lack of due diligence in obtaining

Shackleford's mother's presence. See Shifflett v. Commonwealth,

218 Va. 25, 30, 235 S.E.2d 316, 319-20 (1977) (citation omitted).

Although Shackleford maintains that his mother's presence was

required at the hearing, as previously noted, her presence was not

required. Additionally, there was no indication that had the

court continued the hearing, Shackleford's mother would have been

available at a future date given that her absence was due in part

to her financial inability to attend. See Chichester v.

Commonwealth, 248 Va. 311, 322, 448 S.E.2d 638, 646 (1994)

(stating that "[t]he burden is on the party seeking a continuance

to show that it is likely that the witness would be present at a

later date").

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 C. Motion to Suppress

Next, we consider whether the trial court erred by denying

Shackleford's motion to suppress his statement made to the police

and the firearm and drugs found in the taxicab. Shackleford

argues that his statement was obtained in violation of his

constitutional rights and his rights under the Vienna Convention.

Specifically, he asserts that he was not adequately advised of his

right to counsel and that he was denied his right to consult a

member of the Jamaican Embassy in Washington, D.C. Shackleford

further argues that, because he was illegally detained after he

exited the taxicab, his statements to the police and the physical

evidence found in the cab should be suppressed as "fruits of the

poisonous tree."

When we review a trial court's denial of a motion to

suppress, "[w]e view the evidence in a light most favorable to

. . . the prevailing party below, and we grant all reasonable

inferences fairly deducible from that evidence." Commonwealth v.

Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d 47, 48 (1991). In

our analysis, "we are bound by the trial court's findings of

historical fact unless 'plainly wrong' or without evidence to

support them." McGee v. Commonwealth, 25 Va. App. 193, 198, 487

S.E.2d 259, 261 (1997) (en banc) (citing Ornelas v. United States,

517 U.S. 690, 699 (1996)).

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 1. Miranda Warnings

Shackleford argues that the police interrogated him in

violation of his Fifth Amendment right to counsel and that the

trial judge erred in refusing to suppress the statement. From a

preprinted page, Miers read to Shackleford a statement of his

rights. Miers, however, modified the preprinted form to include

the following:

YOU HAVE THE RIGHT TO TALK TO A LAWYER OR
PARENTS FOR ADVICE BEFORE WE ASK YOU ANY
QUESTIONS AND TO HAVE A LAWYER OR PARENTS
WITH YOU DURING QUESTIONING.

(Emphasis added). Shackleford informed Miers that his father

resided in Kingston, Jamaica and that his mother resided in New

York, but was out of town and could not be reached. Shackleford

did not request either his parents' presence or a lawyer's

presence. Shackleford signed the preprinted form indicating

that he understood his rights and that he wished to speak with

the officers at that time.

The Fifth Amendment provides that "[n]o person . . . shall be

compelled in any criminal case to be a witness against himself."

U.S. Const. amend. V. The United States Supreme Court held "that

a suspect subject to custodial interrogation has the right to

consult with an attorney and to have counsel present during

questioning, and that the police must explain this right [to the

accused] . . . before questioning begins." Davis v. United

States, 512 U.S. 452, 457 (1994) (citing Miranda v. Arizona, 384

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U.S. 436, 469-73 (1966)). Once the accused has been advised of

his Miranda rights, he may make a knowing and intelligent waiver

of those rights and respond to the police interrogation. See

North Carolina v. Butler, 441 U.S. 369, 373-75 (1979). The

Commonwealth, however, must prove by a preponderance of the

evidence that the waiver was made voluntarily, knowingly, and

intelligently. See Goodwin v. Commonwealth, 3 Va. App. 249, 252,

349 S.E.2d 161, 163 (1986).

We hold that the trial judge did not err in ruling that

Shackleford voluntarily and knowingly waived his Fifth Amendment

rights to remain silent and to have counsel present during a

custodial interrogation. We find that the addition of the

language "or his parents" to the waiver-of-rights form did not

mislead Shackleford into believing that if he requested his

parents' presence, he would forgo his right to have counsel

present, and we find that the addition of the phrase in no way

diminished the importance of the right to counsel. Here, Miers,

aware that Shackleford was a minor, advised him that he could

request his parents to be present. Miers also complied with the

mandate of Miranda and fully informed Shackleford of his right to

have an attorney present and his right to remain silent. Miers

also verbally informed Shackleford that "the right to have his

parents present" was in addition to and not in lieu of his right

to have an attorney present. Shackleford waived his right to

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remain silent and his right to have a lawyer present; therefore,

the trial judge did not err in refusing to suppress Shackleford's

statement.

2. International Law

Shackleford's contention that the trial court erred by

denying his motion to suppress his statement because he was not

informed of his right to contact a member of the Jamaican Embassy

is without merit. In Kasi v. Commonwealth, 256 Va. 407, 419, 508

S.E.2d 57, 64 (1998) cert. denied, 119 S. Ct. 2399 (1999), the

Virginia Supreme Court noted that "there is no reported authority

for the idea that a violation of the [Vienna Convention] creates

any legally enforceable individual rights. And, the provisions of

the document create no such rights." Moreover, the Court in Kasi

rejected, as speculative, the defendant's contention that had he

been advised of his "rights" under the Vienna Convention he would

not have confessed. See id. Accordingly, we find that any

failure to notify Shackleford of his right to contact the Jamaican

Embassy did not violate his constitutional rights.

3. Suppression of Physical Evidence

Shackleford maintains that he was unlawfully detained when he

arrived at the motel; and, therefore, his statements and the

physical evidence found in the taxicab should be suppressed as

"fruits of the poisonous tree."

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 Here, while Miers was informing Shackleford that he was going

to have the K-9 unit search the bag, Hall was simultaneously

searching the taxicab pursuant to the cab driver's consent. See

Schneckloth v. Bustamonte, 412 U.S. 218, 222 (1973) (finding that

the Fourth Amendment is not implicated where search was pursuant

to a valid consent); Iglesias v. Commonwealth, 7 Va. App. 93, 99,

372 S.E.2d 170, 173 (1988) (en banc) (noting that consensual

encounters between police and citizens do not implicate the Fourth

Amendment). Hall immediately discovered the firearm, and the

narcotics dog alerted to the presence of a controlled substance

also in the taxicab. The lawful discovery of the firearm and the

controlled substance provided probable cause to arrest

Shackleford. Therefore, any statements obtained by the police

after Shackleford was lawfully arrested and given his Miranda

warnings was not in violation of the Fourth Amendment.

D. Sufficiency

Shackleford argues that the evidence is insufficient to

support his convictions. He argues that the evidence failed to

prove that he was aware of the nature and character of the

substance or of the presence of the firearm. He argues that the

evidence was insufficient to prove that he intended to distribute

the drugs. Further, he argues that the Commonwealth failed to

prove that he intended to distribute more than one ounce of

cocaine.

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 On review, we view the evidence in the light most favorable

to the prevailing party and grant to it all reasonable inferences

fairly deducible therefrom. See Commonwealth v. Jenkins, 255 Va.

516, 521, 499 S.E.2d 263, 265 (1998). "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). "The credibility of the witnesses and the weight

accorded the evidence are matters solely for the fact finder who

has the opportunity to see and hear that evidence as it is

presented." Sandoval v. Commonwealth, 20 Va. App. 133, 138, 455

S.E.2d 730, 732 (1995) (citations omitted). "In its role of

judging witness credibility, the fact finder is entitled to

disbelieve the self-serving testimony of the accused and to

conclude that the accused is lying to conceal his guilt." Marable

v. Commonwealth, 27 Va. App. 505, 509-10, 500 S.E.2d 233, 235

(1998) (citation omitted).

1. Possession of Controlled Substance

"To establish possession of a controlled substance, it

generally is necessary to show that the defendant was aware of the

presence and character of the particular substance and was

intentionally and consciously in possession of it." Gillis v.

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Commonwealth, 215 Va. 298, 301, 208 S.E.2d 768, 771 (1974).

"Physical possession giving the defendant 'immediate and exclusive

control' is sufficient." Ritter v. Commonwealth, 210 Va. 732,

741, 173 S.E.2d 799, 805-06 (1970). "Possession of a controlled

substance gives rise to an inference of the defendant's knowledge

of its character." Josephs v. Commonwealth, 10 Va. App. 87, 101,

390 S.E.2d 491, 498-99 (1990) (en banc) (citation omitted).

Knowledge may also be proven "by evidence of acts, declarations or

conduct of the accused from which the inference may be fairly

drawn that he knew of the existence of the narcotics at the place

where they were found." Ritter, 210 Va. at 741, 173 S.E.2d at 806

(citation omitted).

Shackleford argues that the evidence failed to prove that he

was aware of the presence and character of the cocaine when he

possessed it. Shackleford testified that he received an anonymous

call, instructing him to pick up a bag and deliver it to

Lynchburg, Virginia. He testified that the caller threatened to

hurt his family if he refused to cooperate. In his written

statement, he claimed that the caller appealed to his need for

money and no mention was made of threats to hurt his family. He

stated that he was specifically ordered not to look into the bag

and that he was never told what was in the bag. After the police

officers questioned him at the bus terminal, he said he became

suspicious about what was in the bag. During the ride to the

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motel, he decided to look into the bag for the first time,

discovering the firearm and a wrapped package. Still unsure of

the package's contents, he hid the package under the seat. The

fact finder, however, was not required to accept Shackleford's

theory that he was unaware of the nature of the substance in the

package and unaware of the package's presence until he opened the

bag. See Rollston v. Commonwealth, 11 Va. App. 535, 547, 399

S.E.2d 823, 830 (1991).

We hold that the evidence supports the trial court's finding

that Shackleford knowingly and intentionally possessed the

cocaine. Shackleford acted suspiciously after he exited the bus

from New York, a known source for drugs. He gave the officers

inconsistent stories about his sick aunt, whom he claimed he was

sent to visit. Once inside the taxicab, his behavior became even

more suspicious. He moved from side to side in the back seat and

made several "ducking" motions. The cab driver testified that,

although he could not see Shackleford, he heard the crumpling

sound of a bag. After he arrived at the motel and in response to

the officer's request to search the bag, Shackleford remarked that

"you can go ahead and search the bag, there's no drugs or anything

in it." We find that the fact finder could have reasonably

inferred, based on Shackleford's conduct, that he knowingly and

intentionally possessed the cocaine.

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 We also find that the evidence is sufficient to support the

trial court's finding that Shackleford possessed the cocaine with

the intent to distribute. "Because direct proof of intent is

often impossible, it must be shown by circumstantial evidence."

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

(1988). "If evidence of intent is wholly circumstantial, 'all

necessary circumstances proved must be consistent with guilt and

inconsistent with innocence and exclude every reasonable

hypothesis of innocence.'" Dukes v. Commonwealth, 227 Va. 119,

122, 313 S.E.2d 382, 383 (1984) (quoting Inge v. Commonwealth, 217

Va. 360, 366, 228 S.E.2d 563, 567 (1976)). 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. See Servis, 6 Va. App. at 524-25,

371 S.E.2d at 165. 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 Rodriguez v. Commonwealth, 18

Va. App. 277, 443 S.E.2d 419 (1994) (en banc), aff'd, 249 Va. 203,

454 S.E.2d 725 (1995); Poindexter v. Commonwealth, 16 Va. App.

730, 432 S.E.2d 527 (1993).

Here, although the Commonwealth failed to proffer evidence

that 194.96 grams of cocaine discovered in the taxicab was

inconsistent with personal use, other evidence supports an

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inference that the cocaine was intended for distribution. Officer

A.S. Thomas, an expert in the use and distribution of narcotics,

testified that the street value of cocaine is approximately $100

to $150 per gram and that drugs are commonly packaged in

individual bags to facilitate distribution. Further, the officer

testified that possession of several individually-packaged bags of

drugs was inconsistent with personal use. Shackleford was also

found with a handgun, "a common tool of the drug-dealer's trade."

Langston v. Commonwealth, 28 Va. App. 276, 286, 504 S.E.2d 380,

385 (1998) (citing Dixon v. Commonwealth, 11 Va. App. 554, 557,

399 S.E.2d 831, 833 (1991)). Finally, there was no evidence that

the drugs were for Shackleford's personal use; he never claimed

that he used drugs, and there was no drug paraphernalia found.

See Langston, 28 Va. App. at 286, 504 S.E.2d at 385. Accordingly,

we find that the evidence is sufficient to prove that Shackleford

possessed the cocaine with the intent to distribute.

2. Weight of Controlled Substance

Shackleford next argues that the Commonwealth failed to prove

that the weight of the drugs exceeded more than one ounce. He

argues that because only a sampling of the substance was tested,

the entire weight of the substance may not be attributable as

cocaine. He argues that the forensic scientist should have tested

each gram to determine the purity of the substance.

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 Chris Bryant, an expert in forensic science, testified that

she weighed each individual bag, performed color tests, performed

a chromatography test, and performed a GC/mass specification test

on each bag. Bryant testified that the substance in each bag

appeared to be homogeneous. The total weight of all fourteen

packages was 194.96 grams.

The Commonwealth was not required to prove the purity of the

substance. Code § 18.2-248.01 provides that it shall be unlawful

to transport one ounce or more of "cocaine, coca leaves or any

salt, compound, derivative or preparation thereof." The language

of the statute mandates that the quantity of the mixture -- the

"compound" or "preparation" -- rather than the purity of the

cocaine in the mixture be used to determine the weight of the

substance. See generally State v. Broome, 523 S.E.2d 448, 452

(N.C. Ct. App. 1999) (finding that legislative intent of statute

prohibiting possession of "substance or mixture" mandates that the

total weight of the substance be utilized without regard to

purity); Riley v. State, 711 N.E.2d 489, 493 (Ind. 1999) (finding

that legislature intended to use entire weight of substance "as

this encompasses the common understanding of those in the drug

trade"). Here, the forensic scientist testified that all the

substances appeared to be homogenous and that the aggregate of the

substance weighed 194.96 grams. Several tests were performed on

several samples from each bag, and all the tests proved

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conclusively that the substance was cocaine. Accordingly, we find

that the evidence is sufficient to prove that Shackleford

possessed more than one ounce of cocaine.

He also argues that the trial judge improperly took judicial

notice of the conversion ratio of grams to ounces. "Judicial

notice permits a court to determine the existence of a fact

without formal evidence tending to support that fact." Scafetta

v. Arlington County, 13 Va. App. 646, 648, 414 S.E.2d 438, 439,

aff'd on reh'g, 14 Va. App. 834, 425 S.E.2d 807 (1992). "A trial

court may take judicial notice of those facts that are either

(1) so 'generally known' within the jurisdiction or (2) so 'easily

ascertainable' by reference to reliable sources that reasonably

informed people in the community would not regard them as

reasonably subject to dispute." Taylor v. Commonwealth, 28 Va.

App. 1, 7-8, 502 S.E.2d 113, 116 (1998) (en banc) (citations

omitted). The trial court did not abuse its discretion in taking

judicial notice of the conversion ratio of grams to ounces. The

fact that 28.35 grams is equal to one ounce is easily

ascertainable by reference to a reliable source.

3. Possession of a Firearm

Last, Shackleford, conceding that he possessed the firearm,

argues that because the evidence is insufficient to prove that he

possessed the cocaine with the intent to distribute, his

conviction for possession of a firearm while possessing a

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controlled substance with the intent to distribute cannot be

sustained. Because we found the evidence sufficient to support

his conviction for possession of a controlled substance with the

intent to distribute and because Shackleford concedes that he

possessed the firearm, the evidence is sufficient to support his

conviction for possession of a firearm. See Code § 18.2-308.4(B).

For the foregoing reasons, we affirm the convictions.

Affirmed.

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