Stephen Douglas Gowens v. Commonwealth ( 1997 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Annunziata and Overton
Argued at Norfolk, Virginia
STEPHEN DOUGLAS GOWENS
MEMORANDUM OPINION * BY
v. Record No. 1617-96-1 JUDGE ROSEMARIE ANNUNZIATA
MAY 13, 1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
Robert W. Curran, Judge
Robert Moody, IV (Segall & Moody, on brief),
for appellant.
Ruth Ann Morken, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
Following a bench trial, appellant, Stephen Douglas Gowens,
was convicted of distribution of cocaine in violation of Code
§ 18.2-248. He contends the trial court erred in failing to find
that the distribution was merely an "accommodation." For the
reasons which follow, we affirm.
I.
Acting undercover, Investigator Burch met appellant at a
trailer park and discussed the possibility of obtaining cocaine.
After ten to twenty minutes of conversation, appellant told
Burch he would contact a seller and invited Burch to his home.
For thirty minutes to an hour, appellant attempted to contact a
seller who never returned appellant's calls. Burch and appellant
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
subsequently left in Burch's vehicle; appellant directed Burch to
an apartment occupied by Robert Edwards. Appellant told Edwards
that Burch was "an okay kind of individual, not a problem." A
sale price was agreed upon, and Burch was directed to the
bathroom where he exchanged money for drugs with an individual
named Jerome. En route back to appellant's home, appellant
"pestered" Burch for a piece of the cocaine he had just
purchased. Burch refused to give appellant any cocaine but
"attempted to appease him by offering . . . to purchase him a
beer." Appellant agreed, and Burch bought him the offered beer.
Undeterred, however, appellant continued to "badger" Burch for
some of the cocaine.
At the close of the Commonwealth's case, appellant moved to
strike the evidence, "at least insofar as it goes beyond an
accommodation aspect of the statute." The trial court denied
appellant's motion to strike; the defense presented no evidence
and renewed its motion, arguing again that "this is a classic
accommodation." The court disagreed, finding the inference clear
that appellant expected to receive something in return for his
helping Burch find drugs.
II.
As an initial matter, appellant contends that there is
insufficient evidence to support a finding beyond a reasonable
doubt that he possessed the cocaine at issue or that he could be
convicted as a principal in the second degree to the
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distribution. Appellant failed to raise these contentions at
trial and is, therefore, procedurally barred from raising them on
appeal. Rule 5A:18. At trial, appellant did not deny complicity
in the distribution; he argued only that he participated as an
accommodation to Burch. The issue on appeal, therefore, is
whether the trial court erred in failing to find that the
distribution was merely an accommodation.
On appeal, we review the evidence in a light most favorable
to the Commonwealth, granting to it all reasonable inferences
fairly deducible therefrom. Higginbotham v. Commonwealth, 216
Va. 349, 352, 218 S.E.2d 534, 537 (1975). "[A] defendant who
invokes an accommodation defense has the burden of proving the
elements of that defense by a preponderance of the evidence."
Heacock v. Commonwealth, 228 Va. 397, 406, 323 S.E.2d 90, 95
(1984). The accommodation defense is not available where the
distribution was made "with intent to profit thereby from any
consideration received or expected." Code § 18.2-248(D);
Heacock, 228 Va. at 407, 323 S.E.2d at 96; see also Stillwell v.
Commonwealth, 219 Va. 214, 219, 247 S.E.2d 360, 363-64 (1978);
Gardner v. Commonwealth, 217 Va. 5, 7, 225 S.E.2d 354, 356
(1976).
The evidence admitted in this case and the reasonable
inferences it raises supports the trial court's finding that
appellant intended to profit from the distribution he arranged.
Appellant persistently "pestered" and "badgered" Burch for a
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piece of the cocaine that he arranged for Burch to purchase.
This evidence supports the inference that appellant intended to
profit from the transaction throughout the course of the events
described, not simply as an "afterthought" as he contends.
Furthermore, the evidence supports the inference that appellant
had known Burch for, at most, twenty minutes before he attempted
to contact a seller and only another hour before he directed
Burch to the point of sale. While the nature of the relationship
between the parties to the transaction does not conclusively
establish that the transaction was "for profit," see Gardner, 217
Va. at 6, 225 S.E.2d at 355, the evidence that appellant had just
met Burch further supports the inference that appellant intended
to receive consideration for his efforts. Finally, appellant's
reaction to Burch's offer to buy him a beer, followed shortly
thereafter by a resumption of his "badgering" Burch for cocaine,
supports the finding that appellant expected to receive some
consideration for arranging the deal.
The decision of the trial court is accordingly affirmed.
Affirmed.
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