Todd Emerson Tebault v. Commonwealth ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Annunziata and Senior Judge Hodges
Argued at Norfolk, Virginia
TODD EMERSON TEBAULT
v. Record No. 2357-94-1 MEMORANDUM OPINION * BY
JUDGE WILLIAM H. HODGES
COMMONWEALTH OF VIRGINIA FEBRUARY 13, 1996
FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE
William L. Forbes, Judge
David W. Bouchard (Bouchard & Smith, on
brief), for appellant.
Eugene Murphy, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
The appellant, Todd Emerson Tebault, was convicted in a jury
trial of attempting to possess cocaine in violation of Code
§§ 18.2-250 and 18.2-257. On appeal, he contends that the
Commonwealth failed to demonstrate an overt, ineffectual act
beyond mere preparation, and that the fact finder was required to
believe his explanation of his actions. We disagree and affirm.
I.
On May 13, 1994, Detective Tracy Dean was engaged in a
reverse sting operation in which undercover officers posed as
drug dealers in order to arrest people attempting to buy
imitation crack cocaine offered for sale by the undercover
officers. The officers set up in an open area located off a
*
Pursuant to Code § 17-116.010, this opinion is not
designated for publication.
dead-end dirt road, an area that was the subject of citizen
complaints of drug sales. Dean testified that one caller
complained that a "male by the name of Larry [was] selling
cocaine at that location." The officers used an imitation
substance that resembled crack cocaine. It was packaged in
plastic bags similar to the type used by street dealers.
Detective Robert Smith testified that appellant drove his
truck "down the dirt road [and] then stopped his vehicle. He
[appellant] said where is Larry?" Smith told appellant "Larry
just left, but I have what you want." Appellant, who was alone
in the truck, responded, "Oh, yeah. Let me see." Smith walked
closer to appellant, and, when he displayed baggies of imitation
cocaine, appellant "said he was looking for a 16th, which led
[Smith] to believe, based on [his] training and experience, [that
appellant] was looking for a 16th of an ounce of crack cocaine."
Smith showed appellant two pieces of imitation cocaine weighing
approximately one sixteenth of an ounce. Appellant "picked up
the bags, looked at them, turned them over, and then put them
back in [Smith's] hand. At that point [appellant] told [Smith]
that he had the money and [appellant] showed [Smith] $80 . . . in
his right hand . . . ." Appellant held the money in his hand so
that Smith was able to count it. "At this point [appellant] said
he was shopping around. He again put it [the imitation cocaine]
back in [Smith's] hand and [Smith] motioned for the arrest team
to come in, and [appellant] was subsequently arrested." Smith
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stated that appellant did not appear uncomfortable or agitated,
and he described appellant's demeanor during the transaction as
"calm."
The police searched appellant's truck and found no drugs or
drug-related items.
Appellant testified that he was looking for his cousin, a
drug user, and that he pretended to be interested in buying drugs
so he could look around the area in the hope of finding his
cousin. He explained that, through his cousin, he learned the
street jargon for a "sixteenth" of an ounce of crack and how much
it costs. Appellant stated that he was scared and nervous the
entire time. He admitted opening his wallet and showing Smith
money, but he denied taking the money from the wallet and holding
it for Smith to see.
On rebuttal, Detective Thomas Downing testified that, after
he was arrested, appellant said "something to the effect that
either his brother or his cousin had been involved somehow or
addicted to drugs and that he was out scouting areas where he
suspected that his cousin or brother was buying drugs."
II.
"On appeal, we review the evidence in the light most
favorable to the Commonwealth, granting to it all reasonable
inferences fairly deducible therefrom." Martin v. Commonwealth,
4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987).
"'[A]n attempt is composed of two elements: the intention
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to commit the crime, and the doing of some direct act toward
[sic] its consummation which is more than mere preparation but
falls short of execution of the ultimate purpose.'" Scott v.
Commonwealth, 7 Va. App. 252, 263, 372 S.E.2d 771, 778 (1988)
(citation omitted), cert. denied, 109 S. Ct. 2441 (1989).
Once a person "proceeds so far in [a crime] that his act
amounts to an indictable attempt, it does not cease to be such,
though he voluntarily abandons the evil purpose." Howard v.
Commonwealth, 207 Va. 222, 229, 148 S.E.2d 800, 805 (1966); see
also Glover v. Commonwealth, 86 Va. 382, 386, 10 S.E.2d 420, 421
(1889).
Viewed in the light most favorable to the Commonwealth, the
evidence proved that appellant drove to a secluded area, asked,
by name, for a person known to the police as a drug seller, used
street jargon to request a "sixteenth" of an ounce of crack
cocaine, held out the proper amount of cash to pay for a
sixteenth of an ounce of crack cocaine, handled the package of
imitation crack cocaine, and handed the imitation drugs back to
the undercover officer, indicating that he was shopping around.
Appellant did all that was necessary to possess illegal drugs
except exchange his money for the imitation crack cocaine. No
further acts were required except to consummate the transaction,
which, for whatever reason, appellant chose not to do. See
Sizemore v. Commonwealth, 218 Va. 980, 986, 243 S.E.2d 212, 215
(1978) (affirming conviction for attempted murder though
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defendant never fired weapon at victim and voluntarily handed gun
to friend). Accordingly, the Commonwealth's evidence was
sufficient to prove beyond a reasonable doubt that appellant did
a direct act to possess cocaine that was more than mere
preparation.
When weighing the evidence, the fact finder is not required
to believe all aspects of a defendant's statement or testimony;
the trial judge or jury may reject that which it finds
implausible, yet accept other parts which it finds to be
believable. Durham v. Commonwealth, 214 Va. 166, 169, 198
S.E.2d 603, 606 (1973). Moreover, "what inferences are to be
drawn from proved facts is within the province of the jury and
not the court so long as the inferences are reasonable and
justified." Higginbotham v. Commonwealth, 216 Va. 349, 353, 218
S.E.2d 534, 537 (1975).
The jury believed the Commonwealth's evidence and its theory
of the case, and, based on that evidence, inferred that appellant
attempted to possess cocaine. Conversely, the jury rejected
appellant's explanation. "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." Bridgeman v.
Commonwealth, 3 Va. App. 523, 528, 351 S.E.2d 598, 601 (1986).
Therefore, the evidence was sufficient to prove beyond a
reasonable doubt that appellant was guilty of attempting to
possess cocaine.
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Accordingly, we affirm the defendant's conviction.
Affirmed.
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