Mark A. Kirby v. Commonwealth of Virginia ( 1999 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Elder
Argued at Richmond, Virginia
MARK A. KIRBY
MEMORANDUM OPINION * BY
v. Record No. 0940-98-2 JUDGE LARRY G. ELDER
MARCH 30, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF CUMBERLAND COUNTY
Richard S. Blanton, Judge
Amy M. Curtis (Cary B. Bowen; Bowen, Bryant,
Champlin & Carr, on briefs), for appellant.
Jeffrey S. Shapiro, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Mark A. Kirby (appellant) appeals from his bench trial
conviction for distribution of cocaine in violation of Code
§ 18.2-248. On appeal, he contends the evidence was
insufficient to support his conviction for distribution to a
police informant. For the reasons that follow, we affirm the
conviction.
I.
FACTS
On November 26, 1996, Narcotics Investigator A.Q. Ellington
was working with a reliable undercover informant named Kevin
Hardy (the informant). Under Ellington's supervision, the
*Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
informant was attempting to purchase cocaine from a target
individual. When the informant was unable to reach the target
individual by pager, he called a woman named Jackie Harvey to
see if she could tell him where to purchase some crack cocaine,
and he told her he would need a ride. Harvey told the informant
she could supply him with transportation and that he should wait
for a man in a burgundy or maroon Grand Am to pick him up and
take him to a place where he could purchase cocaine. About
seven minutes later, appellant pulled up in a maroon-burgundy
Grand Am, and the informant got into the car.
While the informant was with appellant, Investigator
Ellington monitored a transmitter which permitted him to hear
appellant's and the informant's conversation. Appellant told
the informant that Harvey had sent him and that he thought the
informant could get some crack cocaine from a man named Charlie
Randolph. Appellant then drove the informant to Randolph's
house. Randolph and the informant then went inside the house
where the informant purchased $40 of cocaine. The informant
then got back into the car, where appellant had remained.
During the return trip, appellant asked the informant to give
him a piece of the cocaine in exchange "for [his] trouble." The
informant then broke off a piece of the cocaine and gave it to
appellant.
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Charlie Randolph testified and denied selling drugs to the
informant.
Appellant testified, claiming that Harvey had asked him to
provide transportation for a friend, the informant, and told him
that the informant would buy gasoline for appellant's car in
exchange for the transportation. Appellant denied knowing the
purpose of the trip until after leaving Randolph's house.
Appellant contended that when he asked the informant to pay him
for the transportation, the informant tried to give him
something appellant knew was a drug.
Appellant moved to strike at the close of the
Commonwealth's evidence, contending that it proved only that
appellant possessed the cocaine and that, "even if you want to
take it one step further, all you have is an accommodation.
. . . [We] don't . . . have a[t] this point a full-fledged
distribution." The trial court denied the motion.
At the close of all the evidence, appellant did not renew
his motion to strike. Counsel for appellant contended in
closing argument that appellant gave credible testimony and that
the evidence, therefore, was insufficient to permit his
conviction. In convicting appellant of distributing cocaine,
the trial court found the informant's testimony credible and
rejected appellant's, noting that the informant was "one of the
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most credible informants that I have heard in the courtroom" and
that "what he said about this whole transaction made sense."
II.
ANALYSIS
When considering the sufficiency of the evidence on appeal in
a criminal case, this Court views the evidence in the light most
favorable to the Commonwealth, granting to it all reasonable
inferences fairly deducible therefrom. See Higginbotham v.
Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975).
The weight which should be given to evidence
and whether the testimony of a witness is
credible are questions which the fact finder
must decide. However, whether a criminal
conviction is supported by evidence
sufficient to prove guilt beyond a reasonable
doubt is not a question of fact but one of
law.
Bridgeman v. Commonwealth, 3 Va. App. 523, 528, 351 S.E.2d 598,
601-02 (1986).
Appellant challenges the credibility of the Commonwealth's
evidence and contends that this evidence, even viewed in the
light most favorable to the Commonwealth, failed to prove that
he facilitated the drug transaction or acted in collusion with
the seller.
In order to have been convicted of drug distribution,
appellant need not have been the actual distributor of the
cocaine the informant purchased. An accused may be convicted of
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being a principal in the second degree to the underlying offense
if the evidence proves that he "intended his words, gestures
signals, or actions to in some way encourage, advise, or urge,
or in some way help the person committing the crime to commit
it." Ramsey v. Commonwealth, 2 Va. App. 265, 269, 343 S.E.2d
465, 468 (1986). "The prosecution must prove that the accused
said or did something showing his consent to the felonious
purpose and his contribution to its execution. . . . [H]e must
share the criminal intent of the actual perpetrator or be guilty
of some overt act." Hall v. Commonwealth, 225 Va. 533, 536, 303
S.E.2d 903, 904 (1983) (citation omitted). Under Code
§ 18.2-18, every principal in the second degree to the felony of
drug distribution may be punished as if a principal in the first
degree--the actual perpetrator.
The trial court, as the finder of fact, was entitled to
reject appellant's testimony regarding the events of November
26, 1996, and to find, as it did, that the informant was telling
the truth about appellant's involvement in what occurred that
evening. Viewing Investigator Ellington's and the informant's
testimony in the light most favorable to the Commonwealth, it
proved that appellant facilitated Randolph's distribution of
drugs to the informant. After the informant had spoken to
Harvey about buying cocaine, appellant arrived in the vehicle
Harvey said he would be driving. Appellant identified Randolph
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as a source for drugs and drove the informant to Randolph's
house so the informant could make the purchase. Upon completion
of the sale, appellant requested and received a portion of the
cocaine the informant had purchased in exchange "for [his]
trouble." Appellant, through his actions, helped Randolph
consummate the sale and was properly convicted of drug
distribution as a principal in the second degree.
Appellant contends that, even if the evidence proved he
participated in the distribution, it also proved that he did so
as an accommodation, as set out in Code § 18.2-248(D). 1
We hold that appellant is barred on appeal from claiming
that he participated in the cocaine distribution as an
accommodation. Under Rule 5A:18, any issue not properly
presented to the trial court is deemed waived on appeal. Where
1
Code § 18.2-248(D) provides as follows:
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 who is
not an inmate in a community correctional
facility, local correctional facility or
state correctional facility as defined in
§ 53.1−1 or in the custody of an employee
thereof, 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.
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a defendant moves to strike at the close of the Commonwealth's
evidence but fails to renew that motion at the close of all the
evidence and fails to contest the same issues raised in the
motion to strike by some other means--such as through closing
argument or a motion to set aside the verdict or to reconsider--
he has waived his right to raise those issues on appeal. See
Lee v. Lee, 12 Va. App. 512, 514-16, 404 S.E.2d 736, 737-38
(1991) (en banc); White v. Commonwealth, 3 Va. App. 231, 233-34,
348 S.E.2d 866, 867-68 (1986).
Here, appellant raised the issue of accommodation in his
motion to strike at the close of the Commonwealth's evidence,
but he failed to renew his motion to strike at the close of all
the evidence. In addition, he did not mention accommodation in
his closing argument and did not make any post-trial motions.
Therefore, he failed to preserve the issue of accommodation for
appeal.
Even if appellant had properly preserved the issue for
appeal, the record contains no evidence that he engaged in the
distribution as an accommodation. Appellant's theory of the
case was that he had no knowledge of the distribution until
after it had occurred, whereas the Commonwealth's theory,
accepted by the trial court, was that appellant was an active
participant facilitating the transaction. Therefore, no
evidence supported an accommodation theory.
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For these reasons, we reject appellant's challenge to the
sufficiency of the evidence and affirm the challenged
conviction.
Affirmed.
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