Lawrence Joseph Walker v. Commonwealth

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Elder and Humphreys
Argued at Alexandria, Virginia
LAWRENCE JOSEPH WALKER
MEMORANDUM OPINION * BY
v. Record No. 2974-01-4 JUDGE LARRY G. ELDER
MARCH 4, 2003
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Stanley P. Klein, Judge
S. Jane Chittom, Appellate Defender (Public
Defender Commission, on brief), for
appellant.
Stephen R. McCullough, Assistant Attorney
General (Jerry W. Kilgore, Attorney General,
on brief), for appellee.
Lawrence Joseph Walker (appellant) appeals from his jury
trial conviction for possession of cocaine with intent to
distribute. On appeal, he contends the trial court erroneously
refused to give his proffered jury instruction on accommodation
in the sentencing phase of the trial. We hold the trial court
did not err because the evidence, viewed in the light most
favorable to appellant, did not support the proffered
accommodation instruction. Thus, we affirm appellant's
conviction.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
The Commonwealth contends appellant failed to preserve his
assignment of error for appeal. We disagree.
The purpose of Rule 5A:18 is to avoid unnecessary appeals,
reversals, and mistrials by requiring litigants to inform the
trial judge of the action complained of so that the judge has
the opportunity to consider the issue intelligently and take
timely corrective action. Robinson v. Commonwealth, 13 Va. App.
574, 576, 413 S.E.2d 885, 886 (1992). We hold that the
arguments appellant made at trial, coupled with the trial
court's express findings in denying the proffered accommodation
instruction, were sufficient to preserve appellant's present
argument for appeal. Appellant argued to the trial court that
the absence of evidence of an intent to profit, coupled with
evidence that the undercover detectives intended to pool the
drugs rather than to give appellant a specific rock as
compensation for his services, proved this was not a commercial
transaction and supported the giving of an accommodation
instruction. Likewise, on appeal, he argues the lack of "a
prior agreement [for appellant to] receive a 'rock' or anything
else in payment for his services" shows a lack of intent to
profit. That appellant uses the term "gratuity" for the first
time on appeal and argues no evidence exists to prove the
parties made an agreement to compensate appellant before
engaging in the transaction is part and parcel of the argument
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appellant made in the trial court. Thus, this argument is
properly before us on appeal.
A defendant is entitled to have the jury instructed on
those theories of the case that are supported by "'more than a
scintilla'" of evidence. Frye v. Commonwealth, 231 Va. 370,
388, 345 S.E.2d 267, 280 (1986) (quoting LeVasseur v.
Commonwealth, 225 Va. 564, 590, 304 S.E.2d 644, 658 (1983)). In
determining whether sufficient evidence supported the giving of
a proffered instruction, we view the evidence in the light most
favorable to the party requesting the instruction. Boone v.
Commonwealth, 14 Va. App. 130, 131, 415 S.E.2d 250, 251 (1992).
Code § 18.2-248 provides, inter alia, that any person who
possesses cocaine with an intent to distribute "shall upon
conviction be imprisoned for not less than five nor more than
forty years and fined not more than $500,000." Code
§ 18.2-248(A), (C). However,
If such person proves that he . . .
possessed [that substance] with intent to
. . . distribute . . . only as an
accommodation to another individual . . .
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.
Code § 18.2-248(D). A Class 5 felony is punishable by
imprisonment for a term of "not less than one year nor more than
ten years, or in the discretion of the jury or the court trying
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the case without a jury, confinement in jail for not more than
twelve months and a fine of not more than $2,500, either or
both." Code § 18.2-10(e).
Thus, in order for a contemplated sale to be an
accommodation subject to the lower penalty range, the seller
must act without any intent to profit thereby. See Code
§ 18.2-248(D).
The expression "profit" is used in the
statute to indicate a commercial transaction
in which there is a consideration involved.
It does not necessarily mean that a seller
of drugs has to sell his drugs to a buyer at
a price in excess of the amount the seller
paid for the drugs.
King v. Commonwealth, 219 Va. 171, 174, 247 S.E.2d 368, 370
(1978). "The 'profit' contemplated by the statute is 'any
consideration received or expected.'" Heacock v. Commonwealth,
228 Va. 397, 407, 323 S.E.2d 90, 96 (1984) (emphases added)
(quoting earlier version of Code § 18.2-248).
Here, appellant admitted that he hoped to smoke some of the
cocaine he purchased with the undercover detectives and that he
developed this hope when their encounter first began. When the
detectives approached appellant and inquired about whether he
had any cocaine, appellant had neither money nor cocaine in his
possession. However, he told Detective Christian Quinn that he
smoked cocaine and admitted at trial that "[smoking cocaine] was
[his] intention at [that] time." (Emphasis added). Appellant
also testified that he believed he and the detectives were
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"supposed to be going back [to the motel] and sit down and get
high together." Thus, the evidence, viewed in the light most
favorable to appellant, established that he expected to profit
from the transaction by sharing in the drugs.
The fact that an explicit agreement to share the drugs did
not exist prior to appellant's making the purchase from the
third party on the detectives' behalf is not dispositive. The
key under Code § 18.2-248(D) is the intent with which appellant
acted, and appellant admitted that he hoped to profit by smoking
a share of the drugs with the undercover officers. For similar
reasons, appellant's uncertainty over whether the detectives
ultimately would share the cocaine with him also is not
dispositive.
Not even a scintilla of evidence established that
appellant's possession with intent to distribute constituted an
accommodation. Thus, the trial court's refusal of the proffered
accommodation instruction was not error, and we affirm
appellant's conviction and sentence.
Affirmed.
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