COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Coleman and Overton
Argued by teleconference
LAWRENCE (NMN) BARLOW
OPINION BY
v. Record No. 2885-96-3 JUDGE SAM W. COLEMAN III
JANUARY 27, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG
Richard S. Miller, Judge
Thomas S. Leebrick (Mosby & Leebrick, on
brief), for appellant.
Richard B. Smith, Assistant Attorney General
(Richard Cullen, Attorney General, on brief),
for appellee.
Lawrence Barlow appeals his bench trial conviction for
possession of heroin with intent to distribute. He contends the
trial court erred (1) by admitting irrelevant evidence of
statements he made to police regarding his prior drug use and
dealings; (2) by rejecting his accommodation defense; (3) by
permitting the Commonwealth during the sentencing phase to refer
to the length of the penitentiary sentences imposed on
codefendants, and (4) that the evidence was insufficient to prove
that he intended to distribute heroin. Upon review, we affirm
the conviction.
I. BACKGROUND
Investigator W. K. Dance, while conducting drug surveillance
at the Lynchburg bus terminal with other police officers, saw
appellant drive into the parking lot and park beside a car driven
by Howard White. The appellant and White began talking. Shortly
thereafter, Andrew Wilson, appellant's nephew, arrived on an
incoming bus and got into appellant's car carrying a large, black
duffel bag. Both cars then left the bus terminal.
The officers lost sight of the cars in traffic. However,
Investigator Dance knew White's address and proceeded there.
When Investigator Dance arrived at White's apartment, he saw
appellant, White, and Wilson entering the apartment. When they
saw Dance, they ran inside. Dance radioed for back-up.
Dance then saw appellant leave the apartment and walk toward
his car. Dance approached appellant and identified himself. He
noticed that the black duffel bag Wilson had carried from the bus
was located on the front passenger side floor of appellant's car.
A drug-sniffing dog, which had been brought to the scene,
"alerted" on the vehicle. Appellant then consented to a search
of his car. When Dance opened the duffel bag, he found cocaine.
Dance arrested Wilson for possessing cocaine. Wilson then
told Dance that heroin could be found in the apartment. After
Dance obtained White's consent to search his apartment, the
officers found 492 individual packages of heroin in White's
basement.
After being taken to the stationhouse, appellant waived his
Miranda rights. He then told the officers that he had picked up
his nephew at the bus station to take him to Roanoke and that
they had stopped by White's place to "get high." He admitted
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that he was a long-time heroin user. Appellant acknowledged that
on previous occasions Wilson had traveled to New York and
returned with "bricks" of heroin to sell. Appellant told police
that on these occasions Wilson had given him heroin, and he had
sold some of it to support his habit. He said that he expected
Wilson to bring a "brick," or fifty packages of heroin, on this
occasion. On previous occasions, appellant had sold at cost the
heroin Wilson had given him so that he could "get high" with the
purchasers and may occasionally have taken a profit of "a few
dollars."
Appellant was indicted for possession of heroin with intent
to distribute and possession of cocaine. At appellant's bench
trial, the judge denied the defense motion to suppress
appellant's statement to police, holding that evidence of
appellant's prior acts of receiving drugs from Wilson and
distributing them to others was admissible to prove a common
scheme of drug distribution between appellant and Wilson.
Testifying for appellant, Wilson stated that appellant had no
knowledge of the drugs found in his duffel bag. He testified
that he had asked appellant to bring him from the bus station to
Roanoke and that he and appellant went to White's to get high,
not to sell drugs.
The trial court convicted appellant for possession of heroin
with intent to distribute but struck the evidence as insufficient
on the cocaine charge. At appellant's sentencing, the prosecutor
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asked the trial judge to impose the same ten-year penitentiary
sentence that White and Wilson had received. The trial court
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ordered and received a presentence report, which also contained
information regarding the codefendants' sentences.
II. EVIDENCE OF PRIOR BAD ACTS
Generally, evidence of prior crimes or bad acts is
inadmissible to prove that the accused committed the crime
charged. See Wilson v. Commonwealth, 16 Va. App. 213, 220, 429
S.E.2d 229, 233 (1993) (admission of other crimes evidence tends
to prejudice a defendant in the minds of the jury showing his
depravity and criminal propensity). The rule is not without
exception. If evidence of other conduct is relevant "to prove
any element or fact in issue at trial, it should be admitted,
whether or not it tends to show the [accused] guilty of another
crime." Parnell v. Commonwealth, 15 Va. App. 342, 348, 423
S.E.2d 834, 838 (1992) (citing Kirkpatrick v. Commonwealth, 211
Va. 269, 272, 176 S.E.2d 802, 805 (1970)). Such evidence may be
admitted "to prove any number of relevant facts, such as motive,
intent, agency, or knowledge," Wilson, 16 Va. App. at 220, 429
S.E.2d at 234, or that the prior bad acts "constitute a part of
[a] general scheme of which the crime charged is a part."
Rodriguez v. Commonwealth, 249 Va. 203, 206, 454 S.E.2d 725, 727
(1995). However, to be admissible, the probative value of the
evidence, which coincidentally may prove a crime, must outweigh
the prejudicial effect inherent in such evidence. See Wilson, 16
Va. App. at 220, 429 S.E.2d at 233-34.
In this case, proof of appellant's prior drug dealings with
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Wilson was highly relevant to prove that he and Wilson were
involved in a continuing "general scheme" of drug procurement and
distribution of which this shipment of heroin was a part.
"Evidence of what the defendant did as a part of a plan or scheme
of which the [drugs] he possessed was a part is the best
available evidence of what he intended to do with the [drugs]" on
this occasion. Rodriguez, 249 Va. at 206, 454 S.E.2d at 727.
Accepting appellant's account that his involvement in the scheme
was limited to providing transportation from the bus terminal to
Roanoke in exchange for a small quantity of drugs, such evidence
was relevant to prove that appellant knew of the nature and
presence of heroin and that he would receive a quantity of it in
exchange for his assistance. See Moore v. Commonwealth, 25 Va.
App. 277, 288, 487 S.E.2d 864, 869 (1997) (holding evidence
sufficient to prove possession of heroin with intent to
distribute where defendant secreted heroin for another knowing of
other's intent to sell the heroin). Such evidence proved a
common scheme whereby the appellant aided and abetted Wilson's
drug distribution activity. Rodriguez, 249 Va. at 207, 454
S.E.2d at 727-28.
Furthermore, the trial judge did not abuse his discretion in
ruling that the prejudicial effect of this evidence did not
outweigh its probative value. See Jennings v. Commonwealth, 20
Va. App. 9, 18, 454 S.E.2d 752, 756 (1995). Thus, the admission
into evidence of appellant's statements to police was not error.
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III. SUFFICIENCY OF THE EVIDENCE
On appeal, we view the evidence in the light most favorable
to the Commonwealth and grant to it all reasonable inferences
therefrom. Higginbotham v. Commonwealth, 216 Va. 349, 352, 218
S.E.2d 534, 537 (1975). We may not disturb the trial court's
judgment unless it is "plainly wrong or without evidence to
support it." Beavers v. Commonwealth, 245 Va. 268, 282, 427
S.E.2d 411, 421 (1993).
The Commonwealth may prove possession of a controlled
substance by showing either actual or constructive possession.
White v. Commonwealth, 24 Va. App. 446, 452, 482 S.E.2d 876, 879
(1997).
To support a conviction based on constructive
possession, "the Commonwealth must point to
evidence of acts, statements, or conduct of
the accused or other facts or circumstances
which tend to show that the defendant was
aware of both the presence and character of
the substance and that it was subject to his
dominion and control."
Id. (quoting Drew v. Commonwealth, 230 Va. 471, 473, 338 S.E.2d
844, 845 (1986)). Moreover, "the possession need not be
exclusive. The defendant may share [drugs] with one or more.
The duration of the possession is immaterial and need not always
be actual possession." Ritter v. Commonwealth, 210 Va. 732, 741,
173 S.E.2d 799, 806 (1970); see Wood v. Commonwealth, 213 Va.
363, 192 S.E.2d 762 (1972) (upholding conviction for possession
where defendant acted as intermediary between buyer and seller of
drugs despite absence of any physical contact with drugs).
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"Possession with intent to distribute is a crime which
requires an act coupled with a specific intent." Stanley v.
Commonwealth, 12 Va. App. 867, 869, 407 S.E.2d 13, 15 (1991) (en
banc). Because direct proof of intent is often impossible to
produce, it may, and frequently must, be shown by circumstantial
evidence. Servis v. Commonwealth, 6 Va. App. 507, 524, 371
S.E.2d 156, 165 (1988); see Monroe v. Commonwealth, 4 Va. App.
154, 156, 355 S.E.2d 336, 337 (1987) ("The quantity of a
controlled substance is a factor which may indicate the purpose
for which it is possessed."). When the Commonwealth relies on
circumstantial evidence, it must "exclude every reasonable
hypothesis of innocence," Pemberton v. Commonwealth, 17 Va. App.
651, 655, 440 S.E.2d 420, 422 (1994), but need not disprove every
remote possibility of innocence. Cantrell v. Commonwealth, 7 Va.
App. 269, 289, 373 S.E.2d 328, 338 (1988).
A person who knowingly aids or abets another in the
commission of a felony is guilty of the felony as a principal in
the second degree and is subject to the same punishment as the
perpetrator of the crime. Code § 18.2-18. Appellant told the
officers that he expected Wilson to have heroin, as he had on
previous occasions, and that they had gone to White's house to
get "high." The evidence is sufficient to prove that appellant
knowingly aided and abetted Wilson in transporting heroin from
the Lynchburg bus station to Roanoke, knowing that Wilson was
going to sell or distribute the heroin. Furthermore, the
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evidence was sufficient to prove that in exchange for his
assistance, appellant expected to receive from Wilson a quantity
of heroin.
Accordingly, the evidence is sufficient to support
appellant's conviction for possession of heroin with intent to
distribute as a principal in the second degree based upon his
providing assistance to Wilson in transporting the drugs, knowing
they were to be distributed, or as a principal in the first
degree for his possession and transportation of the drugs in
exchange for a quantity that he would use or sell.
IV. ACCOMMODATION DEFENSE
Code § 18.2-248(D) provides for mitigation of punishment
where one convicted of possession with intent to distribute is
found not to 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." Stillwell v. Commonwealth,
219 Va. 214, 219-20, 247 S.E.2d 360, 364 (1978). Appellant
argues that the trial court erred in refusing to apply the
accommodation defense under Code § 18.2-248(D) because the
evidence of his prior dealings proved that he only intended to
accommodate others by "charg[ing] them the cost . . . just to get
high with them."
The "profit" contemplated by the accommodation statute
includes any "commercial transaction in which there is
consideration involved. It does not mean that a seller of drugs
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has to sell drugs to a buyer at a price in excess of the amount
the seller has paid for [them]." Hudspith v. Commonwealth, 17
Va. App. 136, 138, 435 S.E.2d 588, 590 (1993). In appellant's
statement to police, he admitted he had sold at cost the heroin
he obtained from Wilson and sometimes would make a small profit.
Also, he admitted he received drugs from Wilson in exchange for
assisting Wilson; therefore, whatever remuneration appellant
received from the sale of the drugs was profit to him. Thus, the
evidence proved that appellant intended to sell the heroin in a
commercial transaction for consideration, as he had done on prior
occasions. The fact that appellant would not sell the heroin for
more than he "paid" for it is of no import. The evidence did not
prove that appellant sold the heroin to others merely as an
accommodation. The trial court's rejection of his accommodation
claim was not error. See Winston v. Commonwealth, 16 Va. App.
901, 905, 434 S.E.2d 4, 6 (1993) (defendant bears the burden to
prove an accommodation distribution by a preponderance of the
evidence).
V. REFERENCE TO CODEFENDANTS' SENTENCES
Appellant contends the prosecutor committed reversible error
by referring to the length of the codefendants' sentences during
appellant's sentencing hearing. Appellant contends this action
violated the principle that "a defendant has a right to have
his . . . punishment determined by the evidence against him and
not by what sentence has been imposed in another criminal
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prosecution against an accomplice, [or] a co-defendant." See
Ward v. Commonwealth, 205 Va. 564, 138 S.E.2d 293 (1964). See
also Walker v. Commonwealth, 212 Va. 289, 291, 183 S.E.2d 739,
741 (1971) (citing Ward, 205 Va. at 573-74, 138 S.E.2d at 298
(1964)). The situation in Ward is not comparable to the
situation in the present case. In Ward, the prosecutor's comment
was made during a unitary jury trial; in this case, the comment
was made in a bench trial to the trial judge during the
sentencing phase. A trial judge is given greater latitude than a
jury in the factors that may be considered in determining an
appropriate sentence, including a variety of facts that are
contained in presentence reports. See Code § 19.2-299. The
presentence report may contain "the history of the accused . . .
and all other relevant facts to fully advise the court so [it]
may determine the appropriate sentence to be imposed." Id.
(emphasis added). Thus, even in a jury trial, the judge may
consider the same factors when supervising a jury verdict and
considering whether to accept, suspend, or modify the jury's
recommended sentence. A codefendant's sentence may be considered
relevant by the trial judge to the ultimate sentence that is
imposed in either a bench or jury trial and the length of a
codefendant's sentence is routinely contained in the presentence
report, even though such information would be inappropriate for a
jury to consider. See State v. Giebel, 541 N.W.2d 815, 820 (Wis.
App. 1995); State v. Buck, 314 S.E.2d 406, 410 (W. Va. 1984). In
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this case, the prosecutor's comment regarding the codefendants'
sentences was information contained in the presentence report.
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The trial judge did not err in permitting the prosecutor's
comment.
Accordingly, we affirm the conviction.
Affirmed.
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