Michael Anthony Booker v. Commonwealth of Virginia ( 2000 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Bumgardner and Frank
Argued by teleconference
MICHAEL ANTHONY BOOKER
MEMORANDUM OPINION * BY
v. Record No. 0710-99-4 JUDGE RUDOLPH BUMGARDNER, III
MAY 9, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF FAUQUIER COUNTY
William Shore Robertson, Judge
V. James Ventura (John Carter Morgan, Jr.,
on brief), for appellant.
Eugene Murphy, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
After a bench trial, the trial court convicted Michael
Anthony Booker of two counts of distributing cocaine. On
appeal, he contends the trial court erred in rejecting his
defense of accommodation. Finding no error, we affirm.
On appeal, we view the evidence in the light most favorable
to the Commonwealth and grant to it all favorable inferences
fairly deducible therefrom. See Archer v. Commonwealth, 26 Va.
App. 1, 11, 492 S.E.2d 826, 831 (1997). Viewed in that manner,
the evidence established a police informant twice approached the
defendant and arranged a purchase of cocaine.
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
On the first occasion, the informant asked the defendant
for a $40 rock of cocaine. The defendant told him to come back
later. When the informant returned, the woman, who had
previously been with the defendant, met him and took him to a
nearby motel. The informant gave her $40, and she entered a
motel room. A short time later, the defendant came out of the
room and gave the informant a rock of cocaine.
The next day, the informant approached the defendant again
and asked for $50 of crack cocaine. The defendant told the
informant to come back in 15 minutes, which he did, and then the
two returned to the motel. The informant gave the defendant
$50. The defendant walked to the rear of the building, and when
he returned, he handed the informant crack cocaine.
The defendant contends that he stood in the middle of these
transactions and acted only to accommodate the informant. The
trial court rejected his claim of accommodation and fixed
punishment accordingly. The defendant argues the trial court
abused its discretion in rejecting his accommodation defense.
Code § 18.2-248(D) provides for mitigation of punishment
where one convicted of distribution is found not to be a drug
dealer, "but by an individual citizen . . . motivated by a
desire to accommodate a friend, without any intent to profit or
to induce or to encourage the use of drugs." Stillwell v.
Commonwealth, 219 Va. 214, 219, 247 S.E.2d 360, 364 (1978). The
Supreme Court defines "profit" as a "'commercial transaction in
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which there is a consideration involved. It does not
necessarily mean that a seller of drugs has to sell his drugs to
a buyer at a price in excess of the amount the seller paid for
the drugs.'" Hudspith v. Commonwealth, 17 Va. App. 136, 138,
435 S.E.2d 588, 590 (1993) (quoting King v. Commonwealth, 219
Va. 171, 174, 247 S.E.2d 368, 370 (1978)).
"The 'profit' contemplated by the statute is 'any
consideration received or expected.'" Heacock v. Commonwealth,
228 Va. 397, 407, 323 S.E.2d 90, 96 (1984) (defendant who
distributed drugs for free not entitled to accommodation defense
because it was reasonable to infer that as a dealer he would
profit from future transactions). "A distribution for
consideration precludes even an accommodation instruction."
Roger D. Groot, Criminal Offenses and Defenses in Virginia, Drug
Offenses 164 n.102 (4th ed. 1999) (citations omitted). See
Winston v. Commonwealth, 16 Va. App. 901, 905-06, 434 S.E.2d 4,
6 (1993) (accommodation jury instruction properly refused where
evidence established that defendant facilitated sale by
procuring drugs and delivering them to informant).
The defendant could only prevail on this appeal if his
evidence proved an accommodation as a matter of law. However,
the defendant does not contest that he handed crack cocaine to
the informant in exchange for cash. That exchange of drugs for
consideration was a sale in violation of Code § 18.2-248. Code
§ 18.2-248(D) establishes a presumption against an accommodation
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distribution, see Stillwell, 219 Va. at 219, 247 S.E.2d at 364,
and requires the defendant to prove accommodation by a
preponderance of the evidence. See id. at 225, 247 S.E.2d at
367. The defendant's claim of accommodation, at most, raised an
issue of fact to be resolved by the fact finder.
The trial court concluded from the evidence that the
defendant did not distribute as an accommodation. Credible
evidence in the record supports that finding. The trier of fact
weighs the credibility of the witnesses, the weight accorded
their testimony, and the inferences to be drawn from proven
facts. See Long v. Commonwealth, 8 Va. App. 194, 199, 379
S.E.2d 473, 476 (1989). Accordingly, we affirm the defendant's
convictions.
Affirmed.
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