JUDGE D. ARTHUR KELSEY.
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 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.
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 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). Instead, the relevant question is whether "any rational trier of fact could have found the essential 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).
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).
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)).
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").
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. 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 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 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. 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.
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.").
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 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.