Treva Nicole Terrell v. Commonwealth of Virginia ( 1999 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Willis and Annunziata
Argued at Alexandria, Virginia
TREVA NICOLE TERRELL
MEMORANDUM OPINION * BY
v. Record No. 2476-98-4 JUDGE JERE M. H. WILLIS, JR.
DECEMBER 28, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA
Alfred D. Swersky, Judge
Christopher Leibig, Assistant Public Defender
(Office of the Public Defender, on brief),
for appellant.
Michael T. Judge, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
On appeal from her conviction of distribution of cocaine,
in violation of Code § 18.2-248, Treva Nicole Terrell contends
that the trial court erred in ruling that a "seller" of drugs
cannot be "another individual" within the meaning of the
accommodation statute. See Code § 18.2-248(D). However, the
error alleged by Terrell did not actually occur. Therefore, we
affirm the judgment of the trial court.
Terrell and a companion, Gregory Day, approached undercover
Alexandria Police Officer J.A. Lyle and sold him crack cocaine.
At trial, Terrell testified that Day was a drug dealer and that
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
she did not profit from the transaction, but merely accommodated
the sale by Day. Defense counsel argued that Terrell should be
convicted and sentenced under the accommodation provision of
Code § 18.2-248. That provision provides:
If such person proves that he gave,
distributed or possessed with intent to give
or distribute a controlled substance
classified in Schedule I or II only as an
accommodation to another individual . . .
and not with intent to profit thereby from
any consideration received or expected nor
to induce the recipient or intended
recipient of the controlled substance to use
or become addicted to or dependent upon such
controlled substance, he shall be guilty of
a Class 5 felony.
Code § 18.2-248(D).
The trial court disagreed with defense counsel, stating:
According to the statutes it was more
than having the person become addicted to
the substance, it says, "without the intent
to induce the person to use it," and that's
the language that I think precludes the
accommodation provisions from applying to
-- someone who helps the seller is an aider
and abett[o]r, a principal in the second
degree to a distribution.
The provisions of this statute say you
have to –- in order for there to be an
accommodation it must be without the intent
to profit there from or –- and without the
intent to induce the person either to become
addicted or to use the substance. Here the
testimony of the Defendant is clear, she
intended to give this stuff to Officer Lyle
to use.
The trial court, having heard arguments of counsel on Terrell's
motion to reduce the charge to an accommodation, denied the
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motion and found Terrell guilty of distributing a controlled
substance, in violation of Code § 18.2-248.
At the sentencing hearing, defense counsel renewed the
motion to reduce the charge under the accommodation provision,
to which the trial court responded:
I remember. I think one of the things
I asked or commented on was that it's my
understanding that the usual case of
accommodation was where someone is acting on
behalf of a friend, or a group of people
that –- but that's not the reason for the
ruling.
The reason for the ruling was the whole
line of Court of Appeals cases that talk
about commercial transactions, and you can
be an aider or an abett[o]r to a
distributor, you know, even though you don't
get anything by way of a profit for it
because of the nature of the transaction.
That's why this is not an accommodation.
The trial court never ruled that the accommodation statute
could never apply to a person who assists a seller of drugs.
Rather, it found that this case involved a commercial
transaction by Terrell to secure money for the dealer, with the
intent that Officer Lyle use the drug.
Rule 5A:12(c) provides:
The provisions of Rule 5A:18 shall
apply to limit those questions which the
Court of Appeals will rule upon on appeal.
Only questions presented in the petition for
appeal will be noticed by the Court of
Appeals.
Id. Thus, the only matter before us is Terrell's assertion that
the trial court erred in ruling, as a matter of law, that the
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accommodation statute could not be applied to a person helping a
seller of drugs. The trial court, however, made no such ruling.
Because the alleged ruling did not occur, we do not address
whether the accommodation statute applies to such an instance.
In reality, [Terrell] invites this
Court to render an advisory opinion on a
moot question based upon speculative facts.
This is an exercise in which the Court
traditionally declines to participate. "The
reason . . . is that the courts are not
constituted . . . to render advisory
opinions, to decide moot questions or to
answer inquiries that are merely
speculative."
Commonwealth v. Harley, 256 Va. 216, 219-20, 504 S.E.2d 852,
853-54 (1998) (alteration in original) (citation omitted).
The judgment of the trial court is affirmed.
Affirmed.
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