COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Senior Judge Cole Argued at Richmond, Virginia
GERALDINE B. MONDIDO MEMORANDUM OPINION * BY v. Record No. 0035-97-2 JUDGE SAM W. COLEMAN III JULY 28, 1998 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY Timothy J. Hauler, Judge William T. Fitzhugh (Beddow, Marley & Associates, on brief), for appellant.
Richard B. Smith, Assistant Attorney General (Richard Cullen, Attorney General, on brief), for appellee.
Geraldine B. Mondido was convicted by a jury for
distributing a controlled substance in violation of Code
§ 18.2-248. The sole issue on appeal is whether the trial court
erred in refusing to instruct the jury that it could find Mondido
guilty of an accommodation distribution under Code § 18.2-248(D).
Because the evidence did not support an instruction on
accommodation distribution, we affirm the conviction. BACKGROUND
Mondido was indicted by a multijurisdictional grand jury for
distributing cocaine and conspiring to distribute cocaine. The
material facts relating to the charges were substantially
contested at trial and are summarized as follows.
* Pursuant to Code § 17-116.010 this opinion is not designated for publication. The Commonwealth's evidence established that City of
Petersburg Police Officer Stacy Lucas, together with Chesterfield
County Police, were investigating Mondido for suspected drug
trafficking. Lucas testified that she and an informant, Gertrude
Gilmore, who claimed to be a friend of Mondido's son Jesse, drove
to Mondido's residence. Lucas told Mondido that she wanted some
crack cocaine and asked Mondido if she had any drugs. Mondido
replied she did not but could take Lucas to get some. Mondido
got in the van to accompany Lucas and Gilmore. According to Lucas, as they were leaving the driveway,
Mondido told Lucas to stop because she had spotted her other son,
Anthony Delacruz, who, she noted, "might have something." Lucas
testified that Mondido called out to Delacruz and told him that
Lucas and Gilmore "were looking." Lucas told Delacruz that she
wanted to buy "a $20 piece," whereupon Delacruz walked behind
some nearby trailers and returned with a twenty-dollar piece of
crack cocaine. Lucas testified that Mondido took the cocaine
from Delacruz and handed it to her and that she handed Mondido a
twenty-dollar bill which Mondido in turn gave to Delacruz. Lucas
further testified that Mondido then asked Delacruz, "Where is
mine?" Delacruz replied he had sold the last of the drugs.
Testifying in Mondido's defense, and conceding that he sold
cocaine to Lucas, Delacruz testified that Mondido did not
initiate or participate in the drug transaction. According to
Delacruz, he was playing football at a neighbor's house when he
- 2 - saw Mondido standing beside the minivan and talking with Lucas
and Gilmore. He testified that he approached the van and that
Lucas "asked me did I have a 20, and I told her to hold on, . . .
and I left and came back with the [cocaine]." He claimed that he
gave the cocaine directly to Lucas and that Lucas handed him a
twenty-dollar bill in return. Delacruz stated that Mondido never
touched the cocaine or the money and that she took no part in the
transaction. When asked whether Mondido said anything during the
transaction, Delacruz testified that she only asked him "what
[he] was doing" when she saw him giving Lucas the cocaine. Mondido testified that she was sitting in her house when the
van pulled into her driveway and sounded its horn several times.
Mondido went to the van and asked what Lucas and Gilmore wanted.
Gilmore and Lucas asked when Jesse would be home. Mondido
stated that, without any beckoning on her part, Delacruz
approached the van and began talking to Lucas. She testified
that Lucas asked Delacruz for crack cocaine and that Delacruz
retrieved some drugs by some nearby trailers. Mondido testified
that she witnessed the transaction between Lucas and her son, but
took no part in it and did not handle the money or the drugs.
Mondido stated that she asked Delacruz "what the hell [he was]
doing" before he took the money from Lucas and ran away.
At the conclusion of the evidence, the trial court granted
Mondido's motion to strike the conspiracy charge and denied the
motion to strike the charge of distributing cocaine. The trial
- 3 - court rejected an instruction proffered by Mondido that would
have allowed the jury to find her guilty of an accommodation
distribution.
ANALYSIS
When reviewing a trial court's denial of a jury instruction,
this Court must "see that the law has been clearly stated and
that the instructions cover all issues which the evidence fairly
raises." Hudspith v. Commonwealth, 17 Va. App. 136, 137, 435
S.E.2d 588, 589 (1993) (citations omitted). "[T]he trial court
should instruct the jury only on those theories of the case which
find support in the evidence." Morse v. Commonwealth, 17 Va.
App. 627, 632-33, 440 S.E.2d 145, 149 (1994). Further, [w]hen instructing the jury, the trial judge must be mindful that:
"[t]he jury is not required to accept, in toto, either the theory of the Commonwealth or that of an accused. They have the right to reject that part of the evidence believed by them to be untrue and to accept that found by them to be true. In so doing, they have broad discretion in applying the law to the facts and in fixing the degree of guilt, if any, of a person charged with a crime."
Delacruz v. Commonwealth, 11 Va. App. 335, 338-39, 398 S.E.2d
103, 105 (1990) (quoting Belton v. Commonwealth, 200 Va. 5, 9,
104 S.E.2d 1, 4 (1958)); see Painter v. Commonwealth, 210 Va.
360, 367, 171 S.E.2d 166, 169 (1969). Applying these principles,
we find that the evidence, viewed in the light most favorable to
- 4 - the defendant, see Turner v. Commonwealth, 23 Va. App. 270, 275,
476 S.E.2d 504, 507 (1996), does not support granting an
instruction on accommodation distribution.
Code § 18.2-248(D) provides for mitigation of punishment
where one convicted for distributing illegal drugs is found "not
to be a dealer in drugs, but one 'motivated by a desire to
accommodate a friend without any intent to profit or to induce or
to encourage the use of drugs.'" Barlow v. Commonwealth, 26 Va.
App. 421, 430, 491 S.E.2d 901, 905 (1998) (quoting Stillwell v. Commonwealth, 219 Va. 214, 219-20, 247 S.E.2d 360, 364 (1978)).
A defendant has the burden of proving the existence of an
accommodation distribution by a preponderance of the evidence.
Heacock v. Commonwealth, 228 Va. 397, 406, 323 S.E.2d 90, 95
(1984).
Mondido contends the jury could have believed that she
agreed to find a drug supplier for Lucas and engaged Delacruz to
sell Lucas drugs, but, at the same time, could have disbelieved
Lucas' testimony that Mondido handled the drugs and the money and
asked Delacruz: "Where is mine?" In this regard, Mondido
asserts, the jury could have found that Mondido aided and abetted
Delacruz's drug sale but did so solely as an accommodation to
Lucas without the intent to profit from the transaction or to
induce Lucas to use or become addicted to cocaine.
The record is devoid of any evidence, which if believed,
would have supported an accommodation instruction. According to
- 5 - Mondido's evidence, Mondido was merely present when Delacruz sold
drugs to Lucas, and she neither participated nor countenanced the
drug sale. Under the Commonwealth's version of the facts,
Mondido arranged the drug sale, actively participated in the
transaction and expected drugs in return for her participation.
Mondido contends that Delacruz's testimony contradicts that of
Lucas concerning Mondido's handling the drugs and money and
asking "Where is mine?" Thus, Mondido argues that by
disbelieving those aspects of Lucas' testimony, the jury could
conclude that she was only assisting Lucas as an accommodation
and that she neither expected to profit from the sale nor did she
intend to induce Lucas to become addicted to or dependent upon
drugs. Her argument lacks merit. Although the jury might have
disregarded all or any portion of Lucas' testimony, the remainder
of the evidence does not support a finding by a preponderance of
the evidence that Mondido arranged the sale as an accommodation
to Lucas. See Guss v. Commonwealth, 217 Va. 13, 15, 225 S.E.2d
196, 197 (1976) (per curiam). Mondido was "required to produce
some evidence which satisfies the trier of the facts that his
distribution was for accommodation." Stillwell, 219 Va. at 225,
247 S.E.2d at 367. No evidence in the record tends to prove that
Mondido arranged for a drug sale and in doing so was motivated
solely by a desire to accommodate a friend. Not only is the
record devoid of evidence that Mondido was arranging a drug sale
- 6 - solely as an accommodation for a friend, accepting that she
arranged the sale, the evidence shows that she arranged a sale
with her son who lived at home with her. Because of the absence
of evidence that Mondido was accommodating Lucas, and because the
evidence shows that Mondido had the self interest of assisting
her son who resided with her to sell drugs, the evidence did not
support giving an accommodation instruction.
Mondido's reliance upon Gardner v. Commonwealth, 217 Va. 5,
225 S.E.2d 354 (1976) (per curiam), is misplaced. In Gardner,
two undercover police officers picked up the defendant, who was
hitchhiking, and asked him to sell them marijuana. Gardner told
them he had no drugs but might be able to locate some if he could
make a phone call. Gardner introduced the officers to an
acquaintance who sold LSD to one of the undercover officers. At
trial, Gardner testified that he did not actively participate in
the drug sale, that he handled neither the drugs nor the money,
and that he never received, nor expected to receive, any
consideration for arranging the meeting with the drug supplier. Id. at 6, 225 S.E.2d at 356. The Virginia Supreme Court held
that Gardner's evidence, "if believed, was sufficient to show
that he had no intent to share in the sale proceeds or otherwise
to profit from the transaction, or to induce [the officers] to
use or become addicted to or dependent upon" drugs, and,
therefore, warranted an instruction on accommodation distribution
under Code § 18.2-248(D). Id. at 7, 225 S.E.2d at 356.
- 7 - Unlike the defendant in Gardner, who testified that he aided
in the sale of the drugs only as an accommodation, there is no
evidence in this record that, "if believed," could have
established that Mondido only intended to accommodate Lucas by
helping her locate a drug source. Accepting Mondido's argument,
even if the fact finder chose to disbelieve the most
incriminating aspects of Lucas' testimony, the evidence proved
that Mondido did not solely intend to accommodate Lucas in
locating a drug seller because she assisted her son in finding a
person to purchase his drugs "for profit." Accordingly, the
trial court did not err in refusing to grant an instruction on
accommodation distribution. Thus, we affirm the conviction. Affirmed.
- 8 - Benton, J., dissenting.
Code § 18.2-248.1(a)(3) provides a reduced penalty where the
distribution of a controlled substance is made "only as an
accommodation to another individual . . . and not with the intent
to profit thereby from any consideration received or expected nor
to induce the recipient or intended recipient of the controlled
substance to use or become addicted to or dependent upon such
controlled substance." Because the evidence supported
Geraldine B. Mondido's request for an accommodation instruction,
I dissent. "[T]he appropriate standard of review requires that we view
the evidence with respect to the refused instruction in the light
most favorable" to Mondido. Boone v. Commonwealth, 14 Va. App.
130, 131, 415 S.E.2d 250, 251 (1992). Furthermore, the principle
is well settled that if "more than a mere scintilla" of "credible
evidence in the record supports a proffered instruction . . . ,
failure to give the instruction is reversible error." Id. See also Miller v. Commonwealth, 5 Va. App. 22, 24, 359 S.E.2d 841,
842 (1987).
In refusing to grant the accommodation instruction, the
trial judge stated the following: The problem I've got with this accommodation theory in this case . . . is [Mondido's] testimony she didn't do anything. . . .
She testifies she didn't distribute anything to the officer, she just basically brought the parties together. That's the problem I've got with the accommodation. If
- 9 - she were to have taken the stand and said, yeah, you know, they came for the drugs and I knew the boy had some and I just brought the parties together and gave them the drugs, and I think he'd get the accommodation. [Your] evidence doesn't suggest that. [Your] evidence is that [Mondido] did nothing.
* * * * * * *
I'm not going to give it because, number one, I think the evidence is clear that neither . . . Mondido nor her son knew either . . . the . . . informant or the undercover officer.
Her son testified he didn't know these people and never seen them before. [Mondido] testified she didn't know who these people were. . . . I'm not going to give an accommodation instruction in this case. I don't believe it's appropriate based upon the testimony of [Mondido] and based on the testimony of her son. We have either got [Mondido] being merely present or arrested as a principal in the first or second degree to a distribution.
It's a factual question for the jury. If she was merely present, she's not guilty of anything. Or they can find her to be a principal.
(Emphasis added). The trial judge's reasoning is clearly flawed.
In determining whether the evidence is sufficient to support
an accommodation instruction, Mondido was entitled to rely upon
any reasonable inference or proof that flows from the evidence,
including the Commonwealth's evidence. See Brown v.
Commonwealth, 215 Va. 753, 755, 213 S.E.2d 764, 766 (1975).
Stated differently, "[i]f there is evidence in the record to
support the defendant's theory of defense, the trial judge may
not refuse to grant a proper, proffered instruction." Delacruz
- 10 - v. Commonwealth, 11 Va. App. 335, 338, 398 S.E.2d 103, 105
(1990). Only through proper and complete instruction can the
trial judge give the jury "a legal guide" to make its
determination. Painter v. Commonwealth, 210 Va. 360, 367, 171
S.E.2d 166, 170 (1969). Therefore, when the trial judge
instructs the jury, the trial judge must be mindful of the
following principles: The jury is not required to accept, in toto, either the theory of the Commonwealth or that of an accused. They have the right to reject that part of the evidence believed by them to be untrue and to accept that found by them to be true. In so doing, they have broad discretion in applying the law to the facts and in fixing the degree of guilt, if any, of a person charged with a crime.
Belton v. Commonwealth, 200 Va. 5, 9, 104 S.E.2d 1, 4 (1958).
In this case, under the Commonwealth's version of the facts,
the undercover officer and informant knew Mondido's son and
previously had met Mondido. The officer and the informant had
previously visited Mondido's residence on at least one other
occasion to deliver a birthday card to Mondido's son. According
to the officer's testimony, when the officer and the informant
went to Mondido's residence on this occasion and asked Mondido
for cocaine, Mondido said she did not have any. Mondido got into
the officer's vehicle to take the officer and the informant to
find cocaine. As they were leaving the driveway, Mondido spotted
her other son, Delacruz, and said he "might have something."
From this evidence, the jury could reasonably infer that Mondido
- 11 - assisted the officer and informant only as an accommodation to
find cocaine.
Mondido told her son, Delacruz, that the women "were
looking." The officer asked Delacruz for a "$20 piece" which
Delacruz produced. According to the officer, Delacruz handed the
cocaine to Mondido who passed it to the officer. The officer
handed Mondido a twenty-dollar bill, and Mondido passed it to
Delacruz. Delacruz admitted he made the sale and received the
proceeds from the sale. This evidence clearly was sufficient to
support an accommodation instruction. The jury was not required to believe Delacruz's testimony
that Mondido did not participate in the transaction or Mondido's
testimony that she witnessed the transaction but took no part in
it. If the jury believed that Mondido was escorting the officer
and informant to another person who would sell cocaine to the
officer and that Mondido did not receive any consideration for
this transaction, the jury could have found that Mondido was
guilty of distribution but that she did so only as an
accommodation to the officer.
The majority asserts that under the Commonwealth's version
of the facts, Mondido's question, "Where is mine?," indicates
that Mondido must have expected drugs in return for her
participation in the transaction. This assertion is faulty for
two reasons. First, in making that assertion the majority
disregards the standard of review, that is, the evidence must be
- 12 - regarded in the light most favorable to Mondido. The jury could
have believed the Commonwealth's evidence that Mondido agreed to
find a cocaine supplier for the officer, told the officer that
Delacruz might have cocaine, and indicated to Delacruz that the
officer was looking for cocaine. Furthermore, based on evidence
in the record to the contrary, the jury could have disbelieved
the officer's testimony that Mondido asked Delacruz, "Where is
mine?" Second, even if the jury believed Mondido asked the
question, "Where is mine?," the question does not necessarily
indicate that Mondido expected drugs in return for introducing
the undercover officer to Delacruz. Significantly, Mondido did
not address her question to the officer or the informant and did
not seek payment from them. From the evidence, it is just as
likely that Delacruz had promised to deliver cocaine to Mondido
for her own personal use separate from the transaction at hand.
In any event, however, the evidence clearly did not prove that
Mondido received anything from Delacruz.
It is well established that "where there is evidence as to
the purpose of the distribution that is susceptible of different
interpretations," it is "peculiarly within the province of the
jury to determine from the evidence whether the distribution
. . . was made for profit or merely [as an] accommodation."
Brown, 215 Va. at 754, 755, 213 S.E.2d at 766, 766. In Gardner v. Commonwealth, 217 Va. 5, 225 S.E.2d 354 (1976), the
- 13 - Commonwealth's evidence proved that the accused met the
undercover agent and informant while the defendant was
hitchhiking. Id. at 7-8, 225 S.E.2d at 356. Although the
accused had not previously known either the agent or the
informant, he guided them to a nightclub where another person
supplied them drugs. The accused never received any purchase
money for the drugs and did not have any drugs in his possession
when the purchase was made. See id. at 6, 225 S.E.2d at 355.
The Supreme Court held that the trial judge committed reversible
error in failing to instruct the jury on the accused's
accommodation defense because the record contained evidence
which, if believed, would support the defense. See id. at 8, 225
S.E.2d at 356. By refusing to grant the instruction, the trial
judge in Gardner, as in this case, essentially "treat[ed] the
evidence of accommodation as evidence only of aiding and abetting
in the distribution for profit" and impermissibly restricted the
jury's findings. 217 Va. at 8, 225 S.E.2d at 356.
In view of the facts in the record, the jury could have
found that Mondido did not receive or expect any consideration
from the transaction. All of the witnesses testified that
Delacruz had the cocaine and sold it. All of the witnesses
testified that Delacruz left with money in his hand. Mondido did
not supply the cocaine, and Mondido did not receive any money
from the transaction. Under the Commonwealth's version of the
facts, the jury could have concluded that Mondido merely passed
- 14 - both the cocaine and the money between Delacruz and the
undercover officer as an accommodation.
Here, as in Gardner, evidence exists from which the jury
could conclude that the sale was consummated only by a person
other than the accused and that the accused neither received nor
expected to receive the purchase money. See 217 Va. at 7-8, 225
S.E.2d at 356. Furthermore, the facts in Gardner suggest that
the trial judge also erroneously ruled that Mondido could not
rely upon the accommodation defense because she testified that
she did not know the agent. See 217 Va. at 6, 225 S.E.2d at 355
(the accused first met the officer while hitchhiking and then
made an offer to assist). Thus, Mondido "was entitled to an
instruction based upon evidence which, if believed, was
sufficient to show that [she] had no intent to share in the sale
proceeds or otherwise profit from the transaction, or to induce
[the officer and informant] to use or become addicted to or
dependent upon" the drug. Id. at 7, 225 S.E.2d at 356.
Because the evidence supported an accommodation instruction,
I would hold that the trial judge erred in failing to grant the
accommodation instruction. I would reverse the conviction and
remand the case for a new trial.
- 15 -