Charles Norman Thompson v. Commonwealth ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Coleman and Elder
Argued at Richmond, Virginia
CHARLES NORMAN THOMPSON
MEMORANDUM OPINION * BY
v. Record No. 0475-95-2 JUDGE LARRY G. ELDER
FEBRUARY 27, 1996
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
John F. Daffron, Jr., Judge
Dana L. Gay (Duty, Duty & Gay, on brief), for
appellant.
Patricia L. McKenney, Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.
Charles Norman Thompson (appellant) appeals his conviction
for attempted distribution of cocaine in violation of Code
§ 18.2-26, contending that sufficient evidence did not support
the conviction. We disagree and affirm the conviction.
"'It is well established that an attempt is composed of two
elements: [1] the intention to commit the crime, and [2] the
doing of some direct acts towards its consummation which is more
than mere preparation but falls short of execution of the
ultimate purpose.'" Lewis v. Commonwealth, 15 Va. App. 337, 339,
423 S.E.2d 371, 373 (1992)(quoting Sizemore v. Commonwealth, 218
Va. 980, 983, 243 S.E.2d 212, 213 (1978)). Appellant contends
that the evidence was insufficient to prove either of these
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
elements. We disagree.
Familiar standards of appellate review guide our analysis.
"On appeal, we review the evidence in the light most favorable to
the Commonwealth, granting to it all reasonable inferences fairly
deducible therefrom." Martin v. Commonwealth, 4 Va. App. 438,
443, 358 S.E.2d 415, 418 (1987). "The judgment of a trial court
. . . will not be set aside unless it appears from the evidence
that the judgment is plainly wrong or without evidence to support
it." Josephs v. Commonwealth, 10 Va. App. 87, 99, 390 S.E.2d
491, 497 (1990)(en banc). The credibility of a witness, the
weight accorded the testimony, and the inferences to be drawn
from proven facts are matters solely for the fact finder's
determination. Long v. Commonwealth, 8 Va. App. 194, 199, 379
S.E.2d 473, 476 (1989).
Intent:
"Intent may, and most often must, be proven by
circumstantial evidence[,] and the reasonable inferences to be
drawn from the proven facts are within the province of the trier
of fact." Fleming v. Commonwealth, 13 Va. App. 349, 353, 412
S.E.2d 180, 183 (1991)(citation omitted). "Intent may be shown
by a person's conduct and by his statements." Long v.
Commonwealth, 8 Va. App. 194, 198, 379 S.E.2d 473, 476 (1989).
When the "evidence of intent is wholly circumstantial, 'all
necessary circumstances proved must be consistent with guilt and
inconsistent with innocence and exclude every reasonable
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hypothesis of innocence.'" Dukes v. Commonwealth, 227 Va. 119,
122, 313 S.E.2d 382, 382 (1984)(citation omitted).
We hold that the Commonwealth presented sufficient credible
evidence to prove beyond a reasonable doubt that appellant
intended to distribute cocaine to the undercover officers.
Appellant's conduct and statements provided the trial court with
only one reasonable inference to be drawn from the facts and
circumstances. Appellant directed the officers to the back of
the apartment building; appellant approached the officers and
asked them what they needed; appellant told the officers, "we got
some good crack in here;" and appellant took forty dollars from
Officer Knott for a desired amount of cocaine. Appellant then
handed Officer Tozko his wrist-watch as "security" before going
to another part of the building, presumably to retrieve the
cocaine. Appellant also told the officers, "my man is making it
right now, and it'll take about two minutes. He makes some
killer crack with 85 percent cocaine and the rest whatever holds
it together."
Acts beyond mere preparation:
To prove an attempt, "[t]he evidence must prove 'an overt
but ineffectual act committed in furtherance of the criminal
purpose.'" Lewis, 15 Va. App. at 339, 423 S.E.2d at 373 (quoting
Howard v. Commonwealth, 221 Va. 904, 906, 275 S.E.2d 602, 603
(1981)).
In this case, appellant committed multiple direct acts
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toward the consummation of distribution of cocaine. As the
Commonwealth contends, appellant performed all necessary steps to
complete the offense except for the actual presentation of the
cocaine. Appellant actively participated in an encounter with
the undercover officers behind the apartment building; he
described the cocaine to the officers; he made an offer to the
officers; he accepted payment for the cocaine; he left his
wrist-watch as collateral while he went to retrieve the cocaine;
and he gave assurances that the cocaine would be ready for
delivery in a few minutes. The trial court reasonably inferred
from the circumstances that the only reason the last step of the
transaction was not completed was because a third person
recognized the officers and privately informed appellant of their
status.
It matters not, as appellant argues, that he did not
actually possess any cocaine during the series of events. Lewis,
15 Va. App. at 341, 423 S.E.2d at 374. Appellant's unequivocal
actions went beyond mere preparation to distribute cocaine; his
direct actions amounted to a commencement of the consummation of
the sale of cocaine to the officers. See United States v.
Mandujano, 449 F.2d 370 (5th Cir. 1974), cert. denied, 419 U.S.
1114 (1975).
Accordingly, we affirm appellant's conviction.
Affirmed.
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