COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Frank and Agee
Argued at Chesapeake, Virginia
DIRK WILLIAMS
MEMORANDUM OPINION * BY
v. Record No. 2620-00-1 JUDGE ROBERT P. FRANK
DECEMBER 4, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
John C. Morrison, Jr., Judge
Jon M. Babineau (Saunders, Babineau &
Brewbaker, on brief), for appellant.
H. Elizabeth Shaffer, Assistant Attorney
General (Randolph A. Beales, Attorney
General, on brief), for appellee.
Dirk Williams (appellant) was convicted in a bench trial of
distribution of cocaine, in violation of Code § 18.2-248, 1 and
distribution of cocaine within 1000 feet of school property, in
violation of Code § 18.2-255.2. On appeal, he contends the
evidence was insufficient to prove the transaction took place
"within 1000 feet" of school property, as required by Code
§ 18.2-255.2, and insufficient to prove the building was a
"school." For the reasons stated herein, we affirm appellant's
conviction.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
1
This conviction is not before us.
ANALYSIS
The parties are fully conversant with the record; therefore,
this memorandum opinion recites only those facts necessary to a
disposition of the appeal.
Appellant contends that the evidence was insufficient to
prove he distributed cocaine (1) within 1000 feet (2) of an
elementary school. "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).
When the sufficiency of the evidence is challenged on appeal, "it
is our duty to look to that evidence which tends to support the
verdict and to permit the verdict to stand unless plainly wrong."
Snyder v. Commonwealth, 202 Va. 1009, 1016, 121 S.E.2d 452, 457
(1961). "The judgment of a trial court sitting without a jury is
entitled to the same weight as a jury verdict and will not be set
aside unless it appears from the evidence that the judgment is
plainly wrong or without evidence to support it." Martin, 4 Va.
App. at 443, 358 S.E.2d at 418.
Code § 18.2-255.2(A) provides in part:
It shall be unlawful for any person to
manufacture, sell or distribute or possess
with intent to sell, give or distribute any
controlled substance, imitation controlled
substance or marijuana while (i) upon the
property, including buildings and grounds,
of any public or private elementary,
secondary, or post secondary school, or any
public or private two-year or four-year
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institution of higher education; (ii) upon
public property or any property open to
public use within 1,000 feet of such school
property . . . .
This case involves the weight of the evidence and not
admissibility. While appellant raised the issue of the rolling
measuring device's calibration during cross-examination of
Investigator Michael Maslow, appellant did not object to the
admissibility of the investigator's testimony regarding
distance. Additionally, the trial court did not have to rely
exclusively on the rolling device measurement. Maslow testified
he did not remember the exact distance shown on the device, but
he remembered the purchase of cocaine took place within 800 feet
of the school.
Appellant contends the Commonwealth failed to meet its
burden of proof because "no specific testimony was offered as to
the number of feet or any testimony with respect to the accuracy
of the measuring device to determine the distance." He also
maintains no evidence proved where the school property began or
ended. Appellant further argues the investigator did not record
the distance measured by the device.
Appellant miscontrues Maslow's testimony. Maslow testified
the sale was made within 1000 feet from the "edge" of the school
building. On re-direct, he testified the distance was "[a]
little over two football fields" and indicated a football field
was 300 feet. Clearly, the trial court found Maslow's testimony
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credible. "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) (citing Schneider v. Commonwealth, 230
Va. 379, 382, 337 S.E.2d 735, 736-37 (1985); Carter v.
Commonwealth, 223 Va. 528, 532, 290 S.E.2d 865, 867 (1982)).
Appellant also argues the evidence did not indicate the
type of school, who owned it, whether it was public or private,
and whether it was a "school" as intended by the legislature.
However, Maslow testified, without objection, that the
school was "Ingleside Elementary School." Under the facts of
this case, the Commonwealth needed to prove that the accused
sold a controlled substance on property open to public use and
within 1000 feet of any public or private elementary school.
Maslow's testimony, obviously believed by the trial court,
proved appellant sold cocaine on an open sidewalk within 1000
feet of Ingleside Elementary School.
The Commonwealth's evidence was competent, was not
inherently incredible, and was sufficient to prove beyond a
reasonable doubt that appellant was guilty of distribution of
cocaine within 1000 feet of an elementary school.
We, therefore, affirm the conviction.
Affirmed.
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