Kelvin Watford v. Commonwealth of Virginia ( 2000 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Elder and Bray
Argued at Chesapeake, Virginia
KELVIN WATFORD
MEMORANDUM OPINION * BY
v. Record No. 0569-99-1 JUDGE RICHARD S. BRAY
MARCH 7, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
H. Thomas Padrick, Jr., Judge
Sarah A. Mansberger, Assistant Public
Defender, for appellant.
H. Elizabeth Shaffer, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Kelvin Watford (defendant) was before the trial court on an
indictment alleging possession of cocaine with intent to
distribute and possession of a firearm while in possession of
cocaine with the intent to distribute. He was convicted by a jury
of the lesser offenses of possession of cocaine and related
possession of a firearm. On appeal, he complains that the trial
court erroneously refused to instruct the jury on accommodation
possession of cocaine with intent to distribute. Finding any
error harmless, we affirm the convictions.
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
The parties are fully conversant with the record, and this
memorandum opinion recites only those facts necessary to a
disposition of the appeal.
I.
Virginia Beach Detectives Richard Brereton and Linda Kuehn,
while assigned to the "Special Investigative Division, narcotics
unit," were "conducting surveillance" of a local hotel. For
several hours on two successive days, they observed numerous
persons "traffic from [rooms] 36 and 40 and 35 . . . to each
other, a lot of traffic, vehicles pulling up . . . people walking
in, staying a short period of time and then leaving." At
approximately midnight on the second evening, the detectives
decided to undertake a "knock and talk" investigation at each of
the three rooms.
Defendant responded to the knock at Room 35 and, as the door
opened, Brereton noticed defendant place a baggie of suspected
marijuana into his pocket. Defendant was immediately arrested,
and a search of his person revealed the marijuana, seven baggies
of crack cocaine, a loaded Titan .25 automatic pistol and $156.
During a related "protective sweep" of the area, two individuals
were found in the bathroom, together with a "single rock" of crack
cocaine, packaged like the drugs discovered on defendant, and a
smoking device.
Defendant testified that his mother had "dropped [him] off"
at the hotel to meet James Rebley and Allen Boone and purchase
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"some dope" from "this other guy." Defendant also had arranged to
buy a "gun" from Rebley. Rebley, Boone and Todd Jetta were
present in Room 35 when defendant arrived, but Rebley "left"
shortly thereafter. The "other guy" had "checked out," but
Boone's nephew, "Little Charles," appeared from another room and
agreed to sell defendant, Jetta and Boone "eight twenties" of
crack cocaine in exchange for $78, $38 from Jetta and $40 from
defendant.
"Little Charles" passed the drugs to defendant, but, before
payment, Jetta and Boone insisted upon sampling one "rock," "to
see how good it was," and entered the bathroom. Defendant placed
the remaining seven "twenties" in his pocket. Jetta soon
re-entered the room, reported that the drugs were "all right," and
defendant paid "Little Charles." "Not-even-five minutes" later,
the police knocked at the door. Defendant testified that he then
possessed seven "twenties" of cocaine, explaining that three
"belonged to [him]" and two each to Jetta and Boone. He also
acknowledged possession of the firearm, having "put it in [his]
pocket" before Rebley returned to consummate defendant's purchase
of the weapon.
II.
On appeal, "we view the evidence with respect to [a] refused
instruction in the light most favorable" to defendant. Boone v.
Commonwealth, 14 Va. App. 130, 131, 415 S.E.2d 250, 251 (1992).
"[W]here evidence tends to sustain both the prosecution's and the
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defense's theory of the case, the trial judge is required to give
requested instructions covering both theories." Diffendal v.
Commonwealth, 8 Va. App. 417, 422, 382 S.E.2d 24, 26 (1989); see
Code § 19.2-263.2. Viewed accordingly, we will assume, without
deciding, that the instant evidence was sufficient to support an
accommodation instruction pursuant to Code § 18.2-248(D).
However, we find that the attendant error was harmless.
Code § 18.2-248(D) provides, in pertinent part, that
possession of cocaine with intent to distribute "only as an
accommodation to another individual . . . and not with intent to
profit thereby from any consideration received or expected" is a
Class 5 felony. Thus, although a species of possession with
intent to distribute, see Stillwell v. Commonwealth, 219 Va.
214, 222, 247 S.E.2d 360, 365 (1978), a violation by
accommodation results in a substantially reduced penalty. 1
Similarly, simple possession of cocaine, a lesser-included
offense of possession with intent to distribute, is also a Class
5 felony. See Code § 18.2-250.
Here, defendant was indicted for possession with intent to
distribute cocaine but was convicted of the lesser offense,
1
A violation of Code § 18.2-248(C) is punishable by
"imprisonment for not less than five nor more than forty years"
and a fine not to exceed $500,000. The penalty is substantially
enhanced upon subsequent convictions. In contrast, a Class 5
felony is punishable by "imprisonment of not less than one year
nor more than ten years" or "confinement in jail for not more
than twelve months and a fine of not more than $2,500, either or
both." Code § 18.2-10(e).
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simple possession, a Class 5 felony. Had the jury been
instructed and acted on the accommodation defense, defendant
would have been convicted of the more serious offense of
possession with intent to distribute, albeit as an
accommodation, also a Class 5 felony. Thus, clearly, the
offense at conviction was less culpable than accommodation
possession with intent to distribute, with a like penalty.
It is well established that non-constitutional error "is
harmless '[w]hen it plainly appears from the record and the
evidence given at the trial that the parties have had a fair
trial on the merits and substantial justice has been reached.'"
Lavinder v. Commonwealth, 12 Va. App. 1003, 1005, 407 S.E.2d
910, 911 (1991) (en banc) (quoting Code § 8.01-678). "An error
does not affect a verdict if a reviewing court can conclude,
without usurping the jury's fact finding function, that, had the
error not occurred, the verdict would have been the same." Id.
"The effect of an error on a verdict varies widely 'depending
upon the circumstances of the case.' Each . . . must . . . be
analyzed individually to determine if an error has affected the
verdict." Id. at 1009, 407 S.E.2d at 913 (citation omitted).
Under the instant circumstances, the record is clear that the
jury declined to convict defendant of possession with intent to
distribute, as an accommodation or otherwise, deciding, instead,
upon the lesser offense. Thus, the court's refusal to grant the
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accommodation instruction had no effect on the verdict.
Accordingly, we affirm the convictions.
Affirmed.
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