COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, Humphreys and Agee
Argued at Chesapeake, Virginia
GARY L. FOSTER
OPINION BY
v. Record No. 2228-01-2 JUDGE G. STEVEN AGEE
AUGUST 6, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF HALIFAX COUNTY
William L. Wellons, Judge
Charles C. Cosby, Jr. (Boone, Beale, Cosby &
Long, on brief), for appellant.
Virginia B. Theisen, Assistant Attorney
General (Jerry W. Kilgore, Attorney General,
on brief), for appellee.
Gary L. Foster (Foster) was convicted in the Halifax County
Circuit Court of distribution of cocaine 1 in violation of Code
§ 18.2-248. He was sentenced to a term of two years
incarceration. Foster appeals his conviction, contending the
trial court erred (1) by denying his motion to strike the
evidence as insufficient to establish he committed the
distribution offense; (2) by failing to find that he established
an accommodation defense, and (3) in not allowing his
1
The Court notes that the sentencing order entered by the
trial court indicates that the appellant was found guilty by the
jury of possess with intent to distribute a Schedule II
controlled substance - crack cocaine. Accordingly, this case is
remanded to the trial court for the sole purpose of amending the
final order to reflect that the appellant was found guilty of
distribution of cocaine.
accommodation defense argument to be presented to the jury. For
the following reasons, we affirm Foster's conviction.
I. BACKGROUND
Joseph Mitchell (Mitchell) worked in an undercover capacity
with the Halifax County Sheriff's Department making drug buys.
In that capacity, and under police supervision, Mitchell drove
to an apartment complex and approached Foster, a juvenile he had
met previously. Mitchell told Foster he wanted to buy "a quick
fifty rock" of cocaine. Foster responded, "I'll see if I can
hook you up," and walked away. Foster returned a few minutes
later with two men. Foster gave three rocks of cocaine to
Mitchell, who gave Foster cash.
Foster was subsequently arrested and taken before the
Halifax County Juvenile and Domestic Relations District Court,
which properly transferred its jurisdiction over the matter to
the Halifax County Circuit Court. A pretrial hearing was held
on the Commonwealth's motion in limine, which sought to prohibit
Foster from arguing accommodation during the guilt determination
phase of the trial. The trial court granted the motion, ruling
that the jury would determine Foster's guilt as to the
distribution charge. If Foster was found guilty, the trial
judge would then consider the merits of an accommodation defense
at the sentencing phase pursuant to Code § 16.1-272(A).
At trial, Mitchell testified that Foster had handed him the
drugs and that he gave Foster the money. On cross-examination,
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Mitchell testified that he was not sure where Foster had
obtained the drugs. Counsel then asked Mitchell if he recalled
testifying in the juvenile court hearing that the other men with
Foster had passed the drugs to Foster before Foster gave him the
drugs. Mitchell testified that he did not "remember that."
Counsel played the tape of the juvenile court hearing, and
Mitchell's recollection was refreshed. Foster presented no
evidence. The jury found Foster guilty of distribution of
cocaine.
At his sentencing hearing, Foster testified in his own
behalf. According to Foster, he brought two men to Mitchell's
car and then "walked off." He denied passing any drugs to
Mitchell or taking any money from him.
II. SUFFICIENCY OF THE EVIDENCE TO ESTABLISH
DISTRIBUTION OFFENSE
On appeal, Foster challenges the sufficiency of the
evidence to establish he distributed the cocaine. Specifically,
he contends Mitchell's testimony was not credible. For the
following reasons, we find this issue to be without merit.
When considering the sufficiency of the evidence on appeal
in a criminal case, 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). On
review, we do not substitute our own judgment for that of the
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trier of fact. See Cable v. Commonwealth, 243 Va. 236, 239, 415
S.E.2d 218, 220 (1992).
Witness credibility, the weight accorded the testimony and
the inferences to be drawn from proven facts are matters to be
determined by the fact finder. See Long v. Commonwealth, 8
Va. App. 194, 199, 379 S.E.2d 473, 476 (1989). The trial
court's judgment will not be set aside unless it appears that
the judgment is plainly wrong or without supporting evidence.
See Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415,
418 (1987).
The evidence supports the trial court's judgment. Mitchell
testified that upon his request for a "fifty rock" of cocaine,
Foster left but soon returned with two other men. Mitchell then
testified that only Foster handed him the three rocks of cocaine
and he handed the money only to Foster. This evidence is
sufficient to support the trial court's judgment.
Foster, however, contends Mitchell's desire to have his
undercover work help him secure a job in law enforcement
undermined his credibility. Witness credibility is not for us
to determine. A witness' credibility and the weight accorded to
his testimony are matters solely for the fact finder "who has
the opportunity to see and hear the witness[]." Commonwealth v.
Taylor, 256 Va. 514, 518, 506 S.E.2d 312, 314 (1998).
Therefore, the trial court did not err in finding the
evidence sufficient to support a determination of guilt.
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III. THE TRIAL COURT'S DETERMINATION OF
THE ACCOMMODATION DEFENSE
Foster also argues the trial judge erred in ruling that he,
and not the jury, was to make the decision as to whether or not
Foster acted to accommodate Mitchell as opposed to distributing
the cocaine for personal gain. He contends the jury as the fact
finder at trial should have considered this issue and not the
trial judge at sentencing. He further argues that the trial
judge's actions amount to the denial of equal protection. For
the following reasons, we affirm the trial court.
First, we note that Foster's claim of an equal protection
violation is an argument he makes for the first time on appeal.
Pursuant to Rule 5A:18, we will not consider this argument.
"The Court of Appeals will not consider an argument on appeal
which was not presented to the trial court." Ohree v.
Commonwealth, 26 Va. App. 299, 308, 494 S.E.2d 484, 488 (1998). 2
Foster also contends that his accommodation defense was a
factual determination to be made by the jury. We disagree.
An accommodation defense is a defense that pertains only to
the penalty imposed on one found guilty of drug distribution.
See Code § 18.2-248(D); Stillwell v. Commonwealth, 219 Va. 214,
223, 247 S.E.2d 360, 365 (1978) (an accommodation defense "is
relevant to the determination of the proper degree of
2
Foster made no argument that the "ends of justice"
exception to Rule 5A:18 should apply, and we see no basis for
its application in this case.
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punishment, but only after guilt has been established"); Barlow
v. Commonwealth, 26 Va. App. 421, 430, 494 S.E.2d 901, 905
(1998) (the code section "provides for mitigation of punishment
where one convicted of possession with intent to distribute is
found not be a dealer in drugs, but one 'motivated by a desire
to accommodate a friend without any intent to profit or to
induce or to encourage the use of drugs'" (quoting Stillwell,
219 Va. at 219-20, 247 S.E.2d at 364)). Whether a defendant
acted only to accommodate another is a determination to be made
after guilt has been decided and in contemplation of the penalty
to be imposed.
While Foster was entitled to have a jury determine whether
or not he was guilty of committing narcotics distribution, the
determination of a penalty was required to be made by the trial
judge without a recommendation by the jury. 3 Code § 16.1-272(A)
3
Foster, in his brief, recognizes these principles, yet
argues a different process should have been applied in which the
jury determined whether he established an accommodation defense.
He does not provide any legal support for this proposition; he
simply cites Brown v. Commonwealth, 215 Va. 753, 213 S.E.2d 764
(1975), in his argument. That case, however, in which the
Supreme Court of Virginia noted that the issue of accommodation
is one within the province of the jury to determine, did not
involve a transferred juvenile and did not involve a bifurcated
trial procedure. Further, in Stillwell, 219 Va. 214, 247 S.E.2d
360, the Supreme Court explained that an accommodation defense
is a matter to be considered during the sentencing phase of a
trial and not the guilt determination phase:
While there are dicta in our opinions in
Jefferson [v. Commonwealth, 214 Va. 432, 201
S.E.2d 749 (1974),] . . . and Brown . . .
that could lead to a contrary interpretation
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is manifestly clear that "the court shall fix the sentence
without the intervention of a jury" in a juvenile case. While
Foster apparently makes an argument of first impression
regarding juvenile sentencing in the context of the
accommodation defense, his argument is clearly negated by the
plain language of Code § 16.1-272(A). Thus, the trial judge,
the fact finder at the penalty phase of the juvenile's trial,
was required to make the factual determinations regarding the
punishment to be imposed on Foster, which included the
. . . [t]he provisions of § 18.2-248(a),
which deal with the reduced penalty
contingent upon proof of an accommodation
gift, distribution or possession of
marijuana operate only to mitigate the
degree of criminality or punishment . . . .
* * * * * * *
The statutory scheme behind Code § 18.2-248
provides that once the guilt of the
defendant has been established (a
determination completely independent of the
profit-accommodation distinction), a second
determination of the proper punishment is to
be made. This statute and § 18.2-263 place
the burden of proving the existence of an
accommodation distribution (and the right to
the lesser penalty) to the trier of fact on
the shoulders of the defendant. In other
words, the statute contains a presumption
against an accommodation distribution to the
extent that it is relevant to the
determination of the proper degree of
punishment, but only after guilt has been
established.
Id. at 222-23, 247 S.E.2d at 365.
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determination of whether Foster established an accommodation
defense.
Therefore, we find the trial judge was correct in ruling
the issue of accommodation was to be considered by him alone at
sentencing and not by the jury during the guilt determination
phase of the proceedings.
IV. SUFFICIENCY OF THE ACCOMMODATION DEFENSE
Foster also challenges the trial court's determination that
he did not establish an accommodation defense permitting the
mitigation of the sentence for his distribution conviction. He
contends the evidence supports an accommodation defense because
it showed that he neither received nor expected to receive any
of the purchase money. We disagree.
Code § 18.2-248(D) provides for mitigation of punishment
where one convicted of distribution is found not to be a drug
dealer, "but by an individual citizen . . . motivated by a
desire to accommodate a friend, without any intent to profit or
to induce or to encourage the use of drugs." Stillwell, 219 Va.
at 219, 247 S.E.2d at 364. Code § 18.2-248(D) establishes a
presumption against an accommodation distribution and requires
the defendant to prove accommodation by a preponderance of the
evidence. See id. at 219, 225, 247 S.E.2d at 364, 367. Foster
did not meet this burden.
Foster testified that he did not know Mitchell personally,
but they had been acquainted. According to Foster, Mitchell
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asked him for the cocaine and he merely arranged for others to
make the sale to Mitchell. He testified that he had no contact
with the drugs or the money that was exchanged. This testimony
was in direct conflict with Mitchell's. Foster's claim of
accommodation, at most, raised an issue of fact to be resolved
by the fact finder. The trial judge, as fact finder in the
sentencing phase, chose not to believe Foster's testimony. We
cannot say this was error, as a witness' credibility and the
weight accorded to his testimony are matters solely for the fact
finder. Mitchell's testimony was not inherently incredible as
to render it unworthy of belief as a matter of law. See
Lockhart v. Commonwealth, 34 Va. App. 329, 343, 542 S.E.2d 1,
7-8 (2001).
Accordingly, we affirm the decisions of the trial court.
Affirmed.
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