concurring and dissenting.
I concur in the holding that the trial judge did not err in denying the motion to suppress the cocaine. However, I do not join in Part III, and I would reverse the conviction because the evidence does not prove beyond a reasonable doubt that Haywood T. Poindexter possessed the cocaine with the intent to distribute it.
When the Commonwealth’s evidence “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)). “Where inferences are relied upon to establish guilt, they must point to guilt so clearly that any other conclusion would be inconsistent therewith.” Dotson v. Commonwealth, 171 Va. 514, 518, 199 S.E. 471, 473 (1938). “There is no stronger presumption afforded than that an accused is presumed to be innocent, which cannot be overthrown except by proof of his guilt be*736yond a reasonable doubt.” Id. at 517, 199 S.E. at 473. “Existence of the intent [to distribute] cannot be based upon surmise or speculation.” Patterson v. Commonwealth, 215 Va. 698, 699, 213 S.E.2d 752, 753 (1975).
The majority’s statement that “the evidence in this case showed that appellant was carrying 57 individual packets of cocaine totalling 1.39 grams, which Investigator Hewlett testified was inconsistent with personal use” is based upon a misperception of Hewlett’s testimony. Hewlett testified that the amount of cocaine was consistent with personal use, but that “to buy it in this denomination” would not be consistent with “personal use.” Upon further questioning, however, Hewlett testified that it was possible that a user would buy the cocaine in the form held by Poindexter. He testified as follows:
Q The quantity that is described there, the 0.76 grams and the 0.63 grams, well within a quantity that an addict, a severe addict could use in the course of one day, right?
A This is the amount you could probably use, yes sir, in the course of one day.
Q An addict could use that in one day?
A Yes sir.
Q And certainly personal use might involve a quantity that would be for more than a single day?
A That’s correct.
Q The, the nature of the packaging is the, the total basis for your description that this should — may not likely be for personal use, is that fair to say?
A Yes sir.. ..
* * *
Q And it is also possible, is it not that someone, lets say a trafficker who was in a bind for the money but had already divided it up, but weighed it out and said this is really what I’ve got, and somebody said, okay, the street value is a hundred and fifty dollars, I bought it in bulk and that’s how — that’s all I’ve got and I *737want to buy it from you and it could have been sold. That’s possible, isn’t it?
A That’s possible.
Q All right, sir. What you’ve told this Court is what you think probably occurred, but you cannot exclude the possibility that it was for personal use, can you?
A It’s only a professional opinion.
Q All right. Again, my question to you is you have told this court what you think probably would have occurred, but you cannot exclude the possibility that it was done the other way?
A I cannot.
Q All right, sir. And again the quantity is consistent, in terms of the total gross weight of it, is certainly consistent, well consistent with personal use?
A It is.
The record contains neither statements by Poindexter nor evidence of conduct from which an intent to distribute could be inferred. Thus, the evidence in the record did not prove beyond a reasonable doubt that Poindexter intended to distribute the cocaine. Because the evidence did not exclude the reasonable hypothesis that the cocaine was possessed for personal use, I would reverse the conviction.