Robert Tate Wescoat v. Commonwealth of Virginia ( 2000 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Annunziata and Bumgardner
Argued at Salem, Virginia
ROBERT TATE WESCOAT
MEMORANDUM OPINION * BY
v. Record No. 1256-98-2 JUDGE SAM W. COLEMAN III
FEBRUARY 15, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY
Paul M. Peatross, Jr., Judge
Scott Goodman for appellant.
Kathleen B. Martin, Assistant Attorney
General (Mark L. Earley, Attorney General;
Thomas D. Bagwell, Senior Assistant Attorney
General, on brief), for appellee.
Robert Tate Wescoat was convicted in a jury trial of
distribution of marijuana to a juvenile in violation of Code
§ 18.2-255 and attempted distribution of marijuana to a juvenile
at least three years his junior in violation of Code § 18.2-26.
On appeal, Wescoat argues that the evidence was insufficient to
support his conviction for attempted distribution of marijuana.
We disagree and affirm the conviction.
BACKGROUND
Viewed in the light most favorable to the Commonwealth, the
evidence established that on April 5, 1997, Wescoat gave
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
approximately two ounces of marijuana to Ben Holt to sell. Holt
was seventeen years old at the time and had sold marijuana for
Wescoat during the preceding months. After being arrested trying
to sell the drugs at Albemarle High School, where he was a
student, Holt agreed to assist authorities in conducting a
controlled buy from Wescoat.
Holt participated in two tape-recorded telephone calls with
Wescoat where, according to Holt, Wescoat agreed to give Holt more
marijuana to sell. Holt asked Wescoat how much marijuana Wescoat
could obtain. Holt stated that he would need a "half" or a "QP."
Wescoat informed Holt that a "QP" would cost $450. Holt and
Wescoat agreed to meet on April 21, 1997. Just prior to the
meeting, Wescoat informed Holt that he would bring a "half" to the
meeting, the amount Wescoat had with him at the time, and that he
would "go into town and pick up some more and give it to [Holt]."
That evening Wescoat and Holt met at the Forest Lakes Food
Lion. During the meeting, Holt gave Wescoat money that he owed
Wescoat for the two ounces of marijuana that Holt had previously
purchased. The recording of the meeting proved that Wescoat was
mistaken about the amount of marijuana that Holt had wanted to
purchase. Wescoat informed Holt that he would sell him whatever
he needed.
Wescoat was arrested in the parking lot and was searched.
The officers found a small amount of marijuana (4.7 grams) on
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Wescoat. In Wescoat's vehicle, the officers found the marked
money Holt had given to Wescoat for the two ounces of marijuana
Wescoat previously sold Holt.
Jefferson Area Drug Enforcement Task Force Sergeant Michael
Dean was qualified as an expert in the vernacular of the drug
trade and he testified that "QP" means a quarter pound of
marijuana and that a "half" means a half pound of marijuana.
Wescoat testified that he had never sold drugs to Holt.
Wescoat admitted that he was one of the people involved in the
taped telephone conversations, but he stated that his comments
concerning his ability to obtain marijuana was merely bragging.
Wescoat testified that the marijuana found on him during the
search was for his personal use.
ANALYSIS
Wescoat argues that although the tape recording of the
meeting indicates that he would supply additional marijuana to
Holt, no direct act was committed by Wescoat toward consummation
of the sale of marijuana. He argues that, even assuming a large
amount of drugs existed elsewhere that he intended to obtain for
Holt, no evidence existed that he committed an act toward
obtaining the drugs.
On review of a challenge to the sufficiency of the evidence,
we view the evidence in the light most favorable to the
Commonwealth and grant to it all reasonable inferences fairly
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deducible therefrom. See Commonwealth v. Jenkins, 255 Va. 516,
521, 499 S.E.2d 263, 265 (1998). "The credibility of the
witnesses and the weight accorded the evidence are matters solely
for the fact finder who has the opportunity to see and hear that
evidence as it is presented." Sandoval v. Commonwealth, 20 Va.
App. 133, 138, 455 S.E.2d 730, 732 (1995) (citations omitted).
"'An attempt to commit a crime is composed of two
elements: (1) The intent to commit it; and (2) a direct,
ineffectual act done towards its commission.'" Haywood v.
Commonwealth, 20 Va. App. 562, 565, 458 S.E.2d 606, 607-08 (1995)
(citation omitted). A direct, ineffectual act, done toward
commission of an offense need not be the last proximate act toward
completion of the offense, but "it must go beyond mere preparation
and be done to produce the intended result." Tharrington v.
Commonwealth, 2 Va. App. 491, 494, 346 S.E.2d 337, 339 (1986). In
distinguishing acts of mere preparation from acts that constitute
an attempt, "'it may be said that preparation consists [of] . . .
arranging the means or measures necessary for the commission of
the offense and that the attempt is the direct movement toward the
commission after the preparations are made.'" Granberry v.
Commonwealth, 184 Va. 674, 678, 36 S.E.2d 547, 548 (1946) (quoting
14 Am. Jur. Criminal Law § 67 (1938)). Moreover, where intent has
been shown, any slight act done in furtherance of this intent will
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constitute an attempt. See Tharrington, 2 Va. App. at 494, 346
S.E.2d at 340.
Here, the evidence proves that Wescoat intended and
attempted to distribute marijuana to Holt for further
distribution. Wescoat and Holt discussed on three separate
occasions when and how much marijuana Wescoat could obtain.
Wescoat and Holt met at the prearranged location for the
transfer of marijuana. Wescoat had marijuana with him. At the
meeting, it became apparent that Wescoat did not have the
quantity of drugs with him that Holt wanted to purchase.
Wescoat had mistakenly thought that Holt wanted a half ounce,
which Wescoat stated he was prepared to sell Holt at the time.
However, Wescoat agreed to obtain a substantial amount of
marijuana for Holt and instructed Holt to call him later that
evening. Wescoat was arrested before he left the parking lot.
The evidence proves that not only did Wescoat and Holt
negotiate a sale and prearrange a meeting to consummate the
sale, Wescoat met Holt and intended and attempted to sell the
amount of marijuana that he had with him. Except for the
misunderstanding that Wescoat had regarding the amount of drugs
that Holt wanted to purchase, the sale would have been
consummated. Going to the parking lot with marijuana that he
intended to sell to Holt as per their prior agreement
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constituted an attempt by Wescoat to sell marijuana to a
juvenile.
We, therefore, find the evidence sufficient and affirm the
conviction.
Affirmed.
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