Robert Tate Wescoat v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: February 15, 2000
• Docket: 1256982
• Status: Unpublished

Opinion

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

- 2 - 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

- 3 - 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

- 4 - 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

- 5 - constituted an attempt by Wescoat to sell marijuana to a

juvenile.

We, therefore, find the evidence sufficient and affirm the

conviction.

Affirmed.

- 6 -