David Eugene White v. Commonwealth ( 1997 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Fitzpatrick and Annunziata
Argued at Richmond, Virginia
DAVID EUGENE WHITE
MEMORANDUM OPINION * BY
v. Record No. 1998-96-2 JUDGE ROSEMARIE ANNUNZIATA
SEPTEMBER 23, 1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF KING GEORGE COUNTY
James W. Haley, Jr., Judge
Andrea C. Long (Charles C. Cosby, Jr.; Boone,
Beale, Carpenter & Cosby, on brief), for
appellant.
Eugene Murphy, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
Appellant, David Eugene White, was convicted by a jury of
three counts of cocaine distribution in violation of Code
§ 18.2-248. On appeal, he contends that the evidence was
insufficient to support his convictions and that the trial court
erred in failing to follow the sentencing guidelines. We
disagree and affirm his convictions and sentences.
I.
Under familiar principles, we review the evidence in a light
most favorable to the Commonwealth, granting to it all reasonable
inferences fairly deducible therefrom. E.g., Higginbotham v.
Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975).
Investigator Norris directed an undercover operation
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
targeting local drug dealers. Norris engaged Detective Banks, an
officer from a neighboring jurisdiction, to conduct undercover
drug buys. On three occasions during a two-week period, Banks
purchased crack cocaine from an African-American male he
identified as appellant. Each of the transactions occurred at a
trailer which Norris knew to be appellant's residence, and, at
each transaction, Banks identified a vehicle which was registered
to appellant. Banks attempted approximately ten other undercover
drug buys from different subjects during that two-week period,
all but one of whom were African-American.
Banks had not seen appellant in person prior to the events
in question, but Norris had shown Banks photographs of certain
"target" suspects, one of whom was appellant. At the first of
the three drug transactions at appellant's residence, Banks
recognized the seller as the man in the photograph of appellant
that Norris had shown him. Banks testified that he had no
difficulty seeing inside the well-lit trailer, where the
transactions occurred, and that, during the transactions, he
stood face-to-face with the seller and made direct eye contact
with him from a distance of three feet. Banks testified that he
remained in the seller's presence for one to five minutes during
the transactions. At trial, Banks could not recall the address
of the trailer, but he identified a photo of it. At trial, Banks
repeatedly and unequivocally identified appellant as the man who
sold him crack cocaine on each of the three occasions.
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The jury convicted appellant of three counts of cocaine
distribution and recommended sentences of thirty-five years plus
$100,000 for the first count and life plus $500,000 for each of
the second and third counts. Appellant requested a presentence
report, and the imposition of sentence was postponed. The
sentencing guidelines recommended a range midpoint for prison
time of one year and seven months. During his sentencing hearing
before the court, appellant admitted that he had made
approximately five hundred cocaine sales during the year
preceding his arrest. The trial court suspended both life
sentences and both $500,000 fines, fifteen years of the
thirty-year sentence, and $50,000 of the $100,000 fine. In
imposing twenty years of active time and a $50,000 fine, the
court stated,
Mr. White, you are not a young man who sold
drugs once. You were a drug dealer, and a
drug dealer on a massive scale. By your own
testimony, at least, for one year, you made
five hundred drugs sales. You were a major
drug dealer here in King George County.
II.
Through Banks' testimony at trial, the Commonwealth
established that appellant sold crack to Banks on three
occasions. If Banks' testimony was believed, it was clearly
sufficient to support appellant's convictions under Code
§ 18.2-248. See Code § 8.01-680; Traverso v. Commonwealth, 6 Va.
App. 172, 176, 366 S.E.2d 719, 721 (1988) (explaining that a
jury's verdict will not be set aside unless it appears that it is
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plainly wrong or without evidence to support it). Appellant
contends that the evidence is insufficient, however, because
Banks' identification of him as the seller was "suspect." We
disagree.
Banks had ample opportunity to observe the man who sold him
drugs during the course of the three transactions, and Banks'
identification of appellant as the seller is bolstered by
evidence that he observed the seller at appellant's house and
driving appellant's car. To whatever extent Banks' repeated and
unequivocal identification of appellant as the man who sold him
drugs was "suspect," the jury found otherwise. We are bound by
the jury's determination, see Robertson v. Commonwealth, 12 Va.
App. 854, 857, 406 S.E.2d 417, 419 (1991) ("The credibility of
all witnesses and the weight accorded their testimony are matters
solely for the fact finder, who has the opportunity of seeing and
hearing the witnesses."), unless Banks' identification was
somehow "`inherently incredible, or so contrary to human
experience as to render it unworthy of belief.'" See id. at 858,
406 S.E.2d at 419 (citation omitted). We find it was not.
Appellant next contends that the trial court erred in
failing to sentence him to an active term of incarceration
commensurate with the discretionary sentencing guidelines'
recommendation. We disagree. "The guidelines are not binding on
the trial judge; rather, the guidelines are merely a `tool' to
assist the judge in fixing an appropriate punishment." Belcher
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v. Commonwealth, 17 Va. App. 44, 45, 435 S.E.2d 160, 161 (1993).
"[W]hen a statute prescribes a maximum imprisonment penalty and
the sentence does not exceed that maximum, the sentence will not
be overturned as being an abuse of discretion." Abdo v.
Commonwealth, 218 Va. 473, 479, 237 S.E.2d 900, 903 (1977). The
sentences imposed by the trial court here were within the range
set by the legislature. See Code § 18.2-248(C) (providing
maximum sentence of forty years plus $500,000 for first offense
and life plus $500,000 for subsequent offenses). Moreover,
appellant's admission during the sentencing hearing to having
made approximately five hundred cocaine sales during the year
preceding his arrest provided the court ample justification for
deviating from the guidelines recommendation. In short, there
was no abuse of discretion in the present case.
Accordingly, appellant's convictions and sentences are
affirmed.
Affirmed.
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