Jamil Powell v. Commonwealth ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Willis, and Overton
Argued at Alexandria, Virginia
JAMIL POWELL
v. Record No. 0540-95-4 MEMORANDUM OPINION * BY
JUDGE NELSON T. OVERTON
COMMONWEALTH OF VIRGINIA JANUARY 11, 1996
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Thomas S. Kenny, Judge
Paul McGlone (Howard R. Porter; McGlone & Porter, on
brief), for appellant.
Margaret Ann B. Walker, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on brief),
for appellee.
Jamil Powell was convicted in a jury trial of distribution
of a controlled substance under Code § 18.2-248. He appeals his
conviction, contending that the trial court erred in denying jury
instructions on both an entrapment defense and an accommodation
defense. We disagree and affirm the conviction.
If credible evidence in the record supports the defendant's
theory of defense, the trial judge may not refuse to grant a
proper, proffered instruction. Delacruz v. Commonwealth, 11 Va.
App. 335, 338, 398 S.E.2d 103, 105 (1990). "'An instruction,
however, must be supported by more than a mere scintilla of
evidence.'" Brandau v. Commonwealth, 16 Va. App. 408, 411, 430
S.E.2d 563, 564 (1993) (quoting Boone v. Commonwealth, 14 Va. App
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
130, 132, 415 S.E.2d 250, 251 (1992)).
Powell requested both entrapment and accommodation
instructions. The evidence in this case warrants neither.
"'Entrapment is the conception and planning of an offense by
an officer, and his procurement of its commission by one who
would not have perpetrated it except for the trickery,
persuasion, or fraud of the officer.'" McCoy v. Commonwealth, 9
Va. App. 227, 231, 385 S.E.2d 628, 630 (1989) (quoting Stamper v.
Commonwealth, 228 Va. 707, 715, 324 S.E.2d 682, 687 (1985)). "If
the criminal design originated in the mind of the defendant and
the police did no more than 'afford an opportunity for the
commission of a crime' by a willing participant, then no
entrapment occurred." McCoy, 9 Va. App. at 231, 385 S.E.2d at
630 (quoting Huffman v. Commonwealth, 222 Va. 823, 828, 284
S.E.2d 837, 840 (1981)). Powell claims that he gave the cocaine
to someone other than the police officer and that the money he
received at that time was for an unrelated debt. The
Commonwealth argued, and the jury found, that Powell
independently negotiated a deal with the police officer. When
the jury was instructed to find Powell guilty only of a sale to
the police officer, neither theory of evidence justifies an
entrapment instruction.
Code §§ 18.2-248 and 18.2-263 create a presumption against
an accommodation distribution. Stilwell v. Commonwealth, 219 Va.
214, 225, 247 S.E.2d 360, 367 (1978). An accommodation defense
- 2 -
is viable where the distributor acted "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 . . . ." Code § 18.2-248(D). The intent to profit
includes any consideration received or expected. Heacock v.
Commonwealth, 228 Va. 397, 407, 323 S.E.2d 90, 95 (1984). In
both the Commonwealth's and Powell's versions of events, money
was exchanged at the same time the cocaine was exchanged.
Based on the evidence at trial, the trial court properly
refused to grant the requested jury instructions.
Affirmed.
- 3 -