Pete Winchester, a/k/a Mark Anthony Winchester vCW

COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, Agee and Senior Judge Coleman
Argued at Salem, Virginia
PETE WINCHESTER, a/k/a
MARK ANTHONY WINCHESTER
MEMORANDUM OPINION * BY
v. Record No. 0942-00-3 JUDGE G. STEVEN AGEE
MAY 15, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF PITTSYLVANIA COUNTY
B. A. Davis, III, Judge Designate
J. Patterson Rogers, III, for appellant.
Eugene Murphy, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
In a jury trial in the Circuit Court of Pittsylvania
County, Pete Winchester (Winchester) was convicted of
distribution of cocaine, a second or subsequent offense, in
violation of Virginia Code § 18.2-248. At trial, Winchester's
motion to strike the evidence as insufficient was denied.
Subsequently, Winchester objected to Jury Instruction No. 6 on
the grounds that the proposed instruction suggested to the jury
that Winchester had fled prosecution. The court overruled the
objection, and Winchester noted an exception. Winchester then
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
renewed his motion to strike, which the court again denied, and
Winchester noted his exception.
After finding Winchester guilty, the jury recommended a
sentence of ten years incarceration and a fine of $5,000.
Winchester moved that the verdict be set aside as contrary to
the law and the evidence. The trial court denied that motion
and on April 25, 2000 sentenced Winchester to a term of
incarceration for ten years.
Winchester now appeals, arguing that the trial court erred
in giving Jury Instruction No. 6, which he complains was overly
suggestive, and erred in finding the evidence sufficient to
support his conviction. We disagree and affirm the conviction.
I. BACKGROUND
In December 1996, Larry Cunningham (Cunningham) was working
as a confidential informant with the Pittsylvania County Sheriff's
Office. On December 5, 1996, Cunningham, at the request of
Investigators J. Todd Barrett and Jimmy Lipscomb of the Sheriff's
Office, met Investigator Barrett in the Westover Drive area. The
investigators wanted Cunningham to purchase crack cocaine in a
particular area and provided Cunningham with $50 for a buy.
Cunningham drove his own vehicle, outfitted with a
surveillance camera and audio monitor, to the designated area and
asked, "Did anybody have anything?" Some people milling around
told him to drive across Route 656. As Cunningham drove across
Route 656, he stopped at a house where Winchester and another male
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were refueling a car. Cunningham asked if they had anything, and
someone replied "No." Cunningham then pulled away and turned his
vehicle around as a second car pulled up to the house. As
Cunningham passed the house, the second vehicle followed him and
flagged him down.
Winchester was now sitting in the back of the second vehicle,
leaning over the seat talking to those in the front seat.
Winchester handed a pill bottle to Curtis Tinsley, a front seat
passenger, who then pulled a mask over his face as did Winchester.
The masked Tinsley then came to the window of Cunningham's vehicle
and poured crack cocaine into Cunningham's hand from the pill
bottle Winchester had given him. Cunningham paid Tinsley $50.
Cunningham returned to Investigator Barrett with no money and four
rocks of cocaine.
On January 15, 1997 the Grand Jury sitting for the Circuit
Court of Pittsylvania County returned an indictment against Pete
Winchester, charging him with violation of Code § 18.2-248.
Subsequent to the indictment, Investigator Vic Ingram searched for
Winchester through September, 1997 when he was in Winchester's
neighborhood, but to no avail. He contacted Winchester's mother
several times before she moved to North Carolina at the end of
1997. Investigator Ingram made the mother aware that Winchester
was wanted on the indictment although Winchester was also sought
on other violations.
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Winchester was arrested on April 8, 1999. He testified that
he left the Commonwealth prior to the indictment and was not aware
he was wanted under the indictment. Winchester further claimed
that he was not in the Commonwealth at the time of the drug sale.
Winchester testified he left Virginia for North Carolina prior to
the offense because he had "messed up" on probation and did not
want to return to prison for failing to report to his probation
officer.
II. ANALYSIS
A. Jury Instruction No. 6
At trial, the evidence showed that on January 15, 1997,
Winchester was indicted for cocaine distribution, a second or
subsequent offense having occurred on December 5, 1996. The court
took judicial notice of the fact that a capias was issued for
Winchester on January 15, 1997, and that he was not arrested until
April 8, 1999. Investigator Vic Ingram looked for Winchester
"often" during 1997, but was unable to locate him. Ingram
contacted Winchester's mother several times looking for him.
Winchester did not object to this evidence.
Winchester admitted leaving Virginia, but claimed he left for
North Carolina before the date of the offense because he had
"messed up" on probation. Winchester stated that he went to North
Carolina so that he could avoid returning to the penitentiary for
failing to report to his probation officer.
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At the close of the evidence, Winchester objected to Jury
Instruction No. 6, which stated:
THE COURT INSTRUCTS THE JURY THAT, if a
person flees to avoid prosecution or flees to
avoid detection, apprehension or arrest, this
creates no presumption that the person is
guilty of having committed the crime.
However, it is a circumstance which you may
consider along with the other evidence.
Winchester objected to the instruction as misleading and
suggestive to the jury that he fled from the prosecution of the
drug offense. The trial court allowed the jury instruction and in
this appeal Winchester avers the allowance was erroneous due to
the factual disparities presented (i.e., he testified that he fled
the jurisdiction for reasons unrelated to the drug charge, he fled
prior to the alleged crime, and he was unaware of the drug charge
pending against him). Winchester argues that it is error to give
an instruction which, though a technical statement of the law in
the abstract, is not supported by sufficient evidence in the case.
"A reviewing court's responsibility in reviewing jury
instructions is 'to see that the law has been clearly stated and
that the instructions cover all issues which the evidence fairly
raises.'" Darnell v. Commonwealth, 6 Va. App. 485, 488, 370
S.E.2d 717, 719 (1988) (citation omitted). An instruction should
be given if supported by credible evidence. See McClung v.
Commonwealth, 215 Va. 654, 657, 212 S.E.2d 290, 293 (1975).
Instruction No. 6 states that if a person flees to avoid
prosecution, that fact creates no presumption that the person is
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guilty of committing the crime, but is only a circumstance that
can be considered along with the other evidence. Cunningham's
testimony that Winchester was involved in the drug sale, Detective
Ingram's testimony that he attempted to locate and serve the
indictment on Winchester to no avail, and Winchester's own
testimony of flight supply credible evidence to support the idea
of flight after the offense and the need for the instruction
should the jury have believed that flight from the prosecution of
the drug offense occurred. We, therefore, cannot say the trial
court erred by giving this instruction.
B. Sufficiency of the Evidence
"On appeal, 'we review the evidence in the light most
favorable to the Commonwealth, granting to it all reasonable
inferences fairly deducible therefrom.'" Archer v. Commonwealth,
26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997) (citation omitted).
"We will affirm the judgment unless it appears from the evidence
that the judgment is plainly wrong or without evidence to support
it." Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d
534, 537 (1975).
So viewed, the evidence proved that on December 5, 1996,
Cunningham, a confidential informant, was used by investigators to
set up crack cocaine purchases. Cunningham employed audio and
video recording devices in this endeavor. After several attempts
by Cunningham to make a purchase, a vehicle containing Winchester,
Tinsley and a third man flagged down Cunningham. Cunningham saw
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Winchester give Tinsley a pill bottle before Winchester and
Tinsley masked themselves. Tinsley walked over to Cunningham and
poured crack cocaine into Cunningham's hand from the pill bottle
Cunningham had seen Winchester pass to Tinsley. Cunningham gave
Tinsley $50.
The Commonwealth's evidence was not incompetent, was not
inherently incredible, and was sufficient to prove beyond a
reasonable doubt that Winchester committed the charged offense.
The evidence is not made insufficient by Winchester's testimony
that on December 5, 1996, he "was in North Carolina. I don't know
where, but I won't in Virginia." The fact finder, the jury,
believed the Commonwealth's evidence, and rejected Winchester's
testimony. "The credibility of the witnesses and the weight
accorded the evidence are matters solely for the fact finder who
has the opportunity to see and hear that evidence as it is
presented." Sandoval v. Commonwealth, 20 Va. App. 133, 138, 455
S.E.2d 730, 732 (1995).
For these reasons we find no error, and the conviction is
affirmed.
Affirmed.
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