Trevek Lamane Brooks v. Commonwealth ( 2002 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Bumgardner and Felton
Argued at Salem, Virginia
TREVEK LAMANE BROOKS
MEMORANDUM OPINION * BY
v. Record No. 3399-01-3 JUDGE RUDOLPH BUMGARDNER, III
NOVEMBER 5, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE
James F. Ingram, Judge Designate
Joseph R. Winston, Special Appellate Counsel
(Public Defender Commission, on briefs), for
appellant.
Kathleen B. Martin, Assistant Attorney
General (Jerry W. Kilgore, Attorney General,
on brief), for appellee.
The trial court convicted Trevek Lamane Brooks of
possession of marijuana with intent to distribute in violation
of Code § 18.2-248. 1 The defendant contends the evidence is
insufficient to prove he intended to distribute and at most
shows an accommodation distribution. Finding the evidence
sufficient, we affirm the conviction.
We view the evidence and all reasonable inferences
therefrom in the light most favorable to the Commonwealth.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
1
"[I]t shall be unlawful for any person to . . . possess
with intent to . . . sell, give or distribute a controlled
substance . . . ." Code § 18.2-248(A).
Commonwealth v. Taylor, 256 Va. 514, 516, 506 S.E.2d 312, 313
(1998). While investigating an unrelated complaint, a uniformed
police officer saw a car parked on the wrong side of the street.
The defendant sat in the driver's seat, and Tyson Wilson sat in
the front passenger seat. When the officer approached the
vehicle, he saw the defendant holding in his hands two clear
plastic bags full of green leafy material and cash. Wilson had
a bandana in his hand that contained two pieces of similar plant
material.
The officer believed the green leafy material was
marijuana, and he thought he was observing a drug transaction.
When he told the two occupants to keep their hands visible, the
defendant said, "All right, you got me . . . you got me."
Wilson told the officer that the defendant was showing him
marijuana and cash he had found. The defendant "took about $5
worth [of marijuana] and put it in my hand." Wilson testified
he was not attempting to purchase any marijuana and the
defendant did not give him any to keep. The marijuana weighed
6.47 ounces (183.7 grams) and the $186 in cash consisted of one
$100 bill, one $20, five $10s, and sixteen $1s. The defendant
had a pager on his belt. At trial he claimed he had just found
the marijuana and cash wrapped in a towel lying in the middle of
the street and was showing it to Wilson. No evidence indicated
the defendant used marijuana.
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In order to prove the defendant possessed marijuana with
the intent to distribute, the Commonwealth must prove the
defendant possessed the marijuana contemporaneously with his
intention to distribute it. Stanley v. Commonwealth, 12
Va. App. 867, 869, 407 S.E.2d 13, 15 (1991) (en banc). The
defendant does not dispute that he possessed the marijuana that
he held in his hands. The undisputed evidence showed that he
had handed Wilson some of it, "enough to role a blunt." The
defendant transferred marijuana to Wilson, and that alone
permits the elemental inference that he intended to do that
which he did. Schmitt v. Commonwealth, 262 Va. 127, 145, 547
S.E.2d 186, 199 (2001), cert. denied, 120 S. Ct. 840 (2002).
The defendant contends that at most the evidence proved an
accommodation. 2 The contention implicitly concedes the evidence
was sufficient for conviction. Stillwell v. Commonwealth, 219
Va. 214, 219-20, 247 S.E.2d 360, 364 (1978), held Code
§ 18.2-248(A) creates "a single offense," and Code § 18.2-248(D)
"provides for the mitigation of punishment." The provision "is
relevant to the determination of the proper degree of
punishment, but only after guilt has been established." Id. at
223, 247 S.E.2d at 365. If the evidence was sufficient to prove
the transfer was an accommodation, it necessarily proved a
distribution.
2
The defendant did not request an accommodation finding at
trial. Rule 5A:18 controls.
- 3 -
The evidence permits a finding that the defendant intended
to distribute the marijuana he held in his hands. Accordingly,
we affirm.
Affirmed.
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