Phillip Weathers v. Commonwealth of Virginia ( 2001 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judge Willis and
Senior Judge Overton
Argued at Alexandria, Virginia
PHILLIP WEATHERS
MEMORANDUM OPINION * BY
v. Record No. 0987-00-4 JUDGE JERE M. H. WILLIS, JR.
JANUARY 30, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Henry E. Hudson, Judge
Martin W. Lester (Dwight F. Jones; Senior
Assistant Public Defender; Office of the
Public Defender, on briefs), for appellant.
Donald E. Jeffrey, III, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
On appeal from his conviction of distribution of cocaine,
in violation of Code § 18.2-248, Phillip Weathers contends (1)
that the trial court erred in refusing to grant an instruction
on entrapment, (2) that the Commonwealth failed to comply with
the statutory notice and copy requirements for introducing
evidence of his prior convictions at sentencing, and (3) that
the evidence is insufficient. We affirm the conviction.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
I. BACKGROUND
On April 28, 1999, Detective Christopher C. Cochran was
working with an undercover informant, seeking to purchase
cocaine from Weathers. At about 9:00 p.m., Detective Cochran
frisked the informant and drove to Weathers' residence.
Weathers rode up on a bicycle and the three men introduced
themselves. Weathers did not want Detective Cochran to remain
in front of the house, so Detective Cochran drove to the end of
the street and turned his car around to face the place where
Weathers was standing.
The informant left Detective Cochran's vehicle and
approached Weathers. The informant spoke with Weathers for
"less than a minute" and returned to the vehicle.
Detective Cochran gave the informant $170. The informant
walked back to Weathers. He stayed for less than a minute and
returned. The informant gave $50 of the purchase money back to
Detective Cochran. Detective Cochran kept the informant in
sight throughout the transaction.
Weathers left on his bicycle and returned approximately ten
minutes later. Detective Cochran drove up to the house. The
informant got out and walked over to Weathers. After fifteen to
twenty seconds, Detective Cochran exited his vehicle and
approached the two men. He asked Weathers, "Hey, are we cool
. . . . Do you have my stuff?" Weathers replied, "I don't know
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what you're talking about. You don't know how this works. Go
back to your truck."
While Detective Cochran was speaking with Weathers, the
informant returned to the vehicle and sat in the passenger's
seat. Thinking the sale was not going to occur, Detective
Cochran returned to his vehicle. He looked over at Weathers,
who was standing beside the passenger side of the vehicle, and
said, "Man, I can't believe this is going to happen. I can't
believe I came out here and now I'm going to go home with
nothing."
Weathers cut his eyes away from Detective Cochran down
towards the center console area of the vehicle. Detective
Cochran saw there a crumpled $20 bill that had not been there
previously. Weathers pointed to the $20 bill and shrugged.
Detective Cochran opened the crumpled $20 bill and found crack
cocaine inside. The $20 bill matched one of the bills that he
had given the informant earlier.
At the conclusion of the Commonwealth's case-in-chief,
Weathers moved to strike the evidence, arguing that the evidence
was insufficient to prove that he handled any drugs. The trial
court denied the motion.
Weathers told a different story. He testified that he
never saw Detective Cochran until about 11:00 p.m. that night
when "[Detective Cochran] ran into [Weathers'] backyard
screaming." He testified that just before he saw the detective,
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the informant came to his back door and said, "Look, I need you
to do something for me. I'll take care of you." He said that
the informant asked him to ride his bicycle to the corner and
back and promised him some crack cocaine if he did so. He
stated that he rode his bicycle to the corner and back, so that
he could get a "free high." He denied committing the offense.
Weathers renewed his motion to strike the evidence, again
challenging the sufficiency of the evidence to prove that he
distributed cocaine. The court denied the motion.
Weathers requested an entrapment instruction. The trial
court refused this instruction, ruling that there was no factual
basis for it. Weathers was convicted of distribution of
cocaine.
II. ENTRAPMENT INSTRUCTION
On appeal of the refusal of a jury instruction, "we view
the evidence with respect to the refused instruction in the
light most favorable to [Weathers]." Boone v. Commonwealth, 14
Va. App. 130, 131, 415 S.E.2d 250, 251 (1992). When reviewing a
refused entrapment instruction, the Court views the evidence "in
the light most favorable to the theory of entrapment."
Neighbors v. Commonwealth, 214 Va. 18, 19, 197 S.E.2d 207, 208
(1973). "If any credible evidence in the record supports a
proffered [jury] instruction . . . , failure to give the
instruction is reversible error." Boone, 14 Va. App. at 132,
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415 S.E.2d at 251. However, that credible evidence must amount
to "more than a mere scintilla." Id."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." Falden v. Commonwealth,
167 Va. 549, 555-56, 189 S.E. 329, 332 (1937). "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 v. Commonwealth, 9 Va. App. 227, 231, 385 S.E.2d 628, 630
(1989) (quoting Huffman v. Commonwealth, 222 Va. 823, 828, 284
S.E.2d 837, 840 (1981)).
The record supports the trial court's refusal of the
entrapment instruction. Detective Cochran merely presented
Weathers an opportunity to commit the crime. Nothing in the
record suggests that Weathers was coerced, tricked, or otherwise
improperly drawn into committing the crime contrary to his
predisposition. 1
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Weathers denied that he distributed the cocaine. He did
not testify that he distributed it because he was tricked or
coerced into doing so. Citing Matthews v. United States, 485
U.S. 58 (1988), he argues that his entitlement to an entrapment
defense is not dependent upon his acknowledgment that he
committed the crime. He asserts his right to alternative
defenses, denial and entrapment. Accepting without deciding
that, under state law, Weathers was entitled to assert these
alternative defenses, we hold nonetheless that the evidence
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II. NOTICE OF INTENT TO INTRODUCE PRIOR CONVICTIONS
Weathers next asserts that his prior felony convictions
should not have been admitted at sentencing because the
Commonwealth had not complied strictly with the requirements of
Code § 19.2-295.1, which provides in pertinent part:
The Commonwealth shall provide to the
defendant fourteen days prior to trial
notice of its intention to introduce
evidence of the defendant's prior criminal
convictions. . . . Prior to commencement of
the trial, the Commonwealth shall provide to
the defendant photocopies of certified
copies of the defendant's prior criminal
convictions which it intends to introduce at
sentencing.
Id. Weathers concedes that the Commonwealth complied with the
fourteen-day notice requirement of the statute. However, he
argues that the Commonwealth did not provide him with
photocopies of certified copies of the prior convictions prior
to the commencement of trial. Thus, he contends, the
Commonwealth failed to comply strictly with the requirements of
Code § 19.2-295.1, denying him a fair trial.
Our decision in Lebedun v. Commonwealth, 27 Va. App. 697,
501 S.E.2d 427 (1998), controls this issue. There, we stated
that "[t]he Commonwealth's failure to strictly comply with the
procedural requirements of Code § 19.2-295.1 violated no
substantive right and did not prejudice Lebedun's ability to
provided an insufficient predicate for an entrapment
instruction.
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contest the validity of the convictions." Id. at 717-18, 501
S.E.2d at 437.
Weathers was given proper notice of the Commonwealth's
intention to rely on the prior convictions at sentencing. He
made no showing that his ability to contest those convictions
was prejudiced. Because the Commonwealth substantially complied
with Code § 19.2-295.1 and Weathers had sufficient notice, the
trial court did not err in admitting the convictions into
evidence at sentencing.
III. SUFFICIENCY OF THE EVIDENCE
On appeal, we view 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). A judgment will
not be set aside unless it is plainly wrong or without
supporting evidence. See Martin v. Commonwealth, 4 Va. App.
438, 443, 358 S.E.2d 415, 418 (1987).
We hold that the evidence is sufficient to prove beyond a
reasonable doubt that Weathers distributed the cocaine found on
the center console of the vehicle. Admittedly, without the
informant's testimony, the evidence proving that the cocaine
came from Weathers is purely circumstantial. However,
"[c]ircumstantial evidence alone is sufficient to sustain a
conviction." Johnson v. Commonwealth, 2 Va. App. 598, 604-05,
347 S.E.2d 163, 167 (1986) (citation omitted). When a case is
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based on circumstantial evidence, the circumstances proved must
be consistent with guilt and exclude every reasonable hypothesis
of innocence. See Garland v. Commonwealth, 225 Va. 182, 184,
300 S.E.2d 783, 784 (1983). However, "[t]he Commonwealth need
only exclude reasonable hypotheses of innocence that flow from
the evidence, not those that spring from the imagination of the
defendant." Hamilton v. Commonwealth, 16 Va. App. 751, 755, 433
S.E.2d 27, 29 (1993).
The circumstantial evidence in this case points unerringly
to Weathers. His assertion that, because the informant did not
testify, the Commonwealth failed to disprove the reasonable
hypothesis that the informant placed the cocaine in the vehicle
after procuring it from some other source lacks merit. See
Jones v. Commonwealth, 21 Va. App. 435, 464 S.E.2d 558 (1995)
(en banc). The informant was searched immediately before his
contact with Weathers. He had no drugs on his person.
Detective Cochran never lost sight of the informant. No
evidence suggested the informant acquired the cocaine from a
third person. Thus, such a hypothesis is "pure speculation and
conjecture." Id. at 443, 464 S.E.2d at 562.
For the foregoing reasons, we affirm Weathers' conviction.
Affirmed.
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