Charles Norman Thompson v. Commonwealth

• Court: Court of Appeals of Virginia
• Decided: February 27, 1996
• Docket: 0475952
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Baker, Coleman and Elder Argued at Richmond, Virginia

CHARLES NORMAN THOMPSON MEMORANDUM OPINION * BY v. Record No. 0475-95-2 JUDGE LARRY G. ELDER FEBRUARY 27, 1996 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY John F. Daffron, Jr., Judge

Dana L. Gay (Duty, Duty & Gay, on brief), for appellant.

Patricia L. McKenney, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.

Charles Norman Thompson (appellant) appeals his conviction

for attempted distribution of cocaine in violation of Code

§ 18.2-26, contending that sufficient evidence did not support

the conviction. We disagree and affirm the conviction.

"'It is well established that an attempt is composed of two

elements: [1] the intention to commit the crime, and [2] the

doing of some direct acts towards its consummation which is more

than mere preparation but falls short of execution of the

ultimate purpose.'" Lewis v. Commonwealth, 15 Va. App. 337, 339,

423 S.E.2d 371, 373 (1992)(quoting Sizemore v. Commonwealth, 218

Va. 980, 983, 243 S.E.2d 212, 213 (1978)). Appellant contends

that the evidence was insufficient to prove either of these * Pursuant to Code § 17-116.010 this opinion is not designated for publication. elements. We disagree.

Familiar standards of appellate review guide our analysis.

"On appeal, we review the evidence in the light most favorable to

the Commonwealth, granting to it all reasonable inferences fairly

deducible therefrom." Martin v. Commonwealth, 4 Va. App. 438,

443, 358 S.E.2d 415, 418 (1987). "The judgment of a trial court

. . . will not be set aside unless it appears from the evidence

that the judgment is plainly wrong or without evidence to support

it." Josephs v. Commonwealth, 10 Va. App. 87, 99, 390 S.E.2d

491, 497 (1990)(en banc). The credibility of a witness, the

weight accorded the testimony, and the inferences to be drawn

from proven facts are matters solely for the fact finder's

determination. Long v. Commonwealth, 8 Va. App. 194, 199, 379

S.E.2d 473, 476 (1989).

Intent:

"Intent may, and most often must, be proven by

circumstantial evidence[,] and the reasonable inferences to be

drawn from the proven facts are within the province of the trier

of fact." Fleming v. Commonwealth, 13 Va. App. 349, 353, 412

S.E.2d 180, 183 (1991)(citation omitted). "Intent may be shown

by a person's conduct and by his statements." Long v.

Commonwealth, 8 Va. App. 194, 198, 379 S.E.2d 473, 476 (1989).

When the "evidence of intent is wholly circumstantial, 'all

necessary circumstances proved must be consistent with guilt and

inconsistent with innocence and exclude every reasonable

2 hypothesis of innocence.'" Dukes v. Commonwealth, 227 Va. 119,

122, 313 S.E.2d 382, 382 (1984)(citation omitted).

We hold that the Commonwealth presented sufficient credible

evidence to prove beyond a reasonable doubt that appellant

intended to distribute cocaine to the undercover officers.

Appellant's conduct and statements provided the trial court with

only one reasonable inference to be drawn from the facts and

circumstances. Appellant directed the officers to the back of

the apartment building; appellant approached the officers and

asked them what they needed; appellant told the officers, "we got

some good crack in here;" and appellant took forty dollars from

Officer Knott for a desired amount of cocaine. Appellant then

handed Officer Tozko his wrist-watch as "security" before going

to another part of the building, presumably to retrieve the

cocaine. Appellant also told the officers, "my man is making it

right now, and it'll take about two minutes. He makes some

killer crack with 85 percent cocaine and the rest whatever holds

it together." Acts beyond mere preparation:

To prove an attempt, "[t]he evidence must prove 'an overt

but ineffectual act committed in furtherance of the criminal

purpose.'" Lewis, 15 Va. App. at 339, 423 S.E.2d at 373 (quoting

Howard v. Commonwealth, 221 Va. 904, 906, 275 S.E.2d 602, 603

(1981)).

In this case, appellant committed multiple direct acts

3 toward the consummation of distribution of cocaine. As the

Commonwealth contends, appellant performed all necessary steps to

complete the offense except for the actual presentation of the

cocaine. Appellant actively participated in an encounter with

the undercover officers behind the apartment building; he

described the cocaine to the officers; he made an offer to the

officers; he accepted payment for the cocaine; he left his

wrist-watch as collateral while he went to retrieve the cocaine;

and he gave assurances that the cocaine would be ready for

delivery in a few minutes. The trial court reasonably inferred

from the circumstances that the only reason the last step of the

transaction was not completed was because a third person

recognized the officers and privately informed appellant of their

status. It matters not, as appellant argues, that he did not

actually possess any cocaine during the series of events. Lewis,

15 Va. App. at 341, 423 S.E.2d at 374. Appellant's unequivocal

actions went beyond mere preparation to distribute cocaine; his

direct actions amounted to a commencement of the consummation of

the sale of cocaine to the officers. See United States v.

Mandujano, 449 F.2d 370 (5th Cir. 1974), cert. denied, 419 U.S.

1114 (1975).

Accordingly, we affirm appellant's conviction.

Affirmed.