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.
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.
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