Stephen Douglas Gowens v. Commonwealth

• Court: Court of Appeals of Virginia
• Decided: May 13, 1997
• Docket: 1617961
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Baker, Annunziata and Overton Argued at Norfolk, Virginia

STEPHEN DOUGLAS GOWENS MEMORANDUM OPINION * BY v. Record No. 1617-96-1 JUDGE ROSEMARIE ANNUNZIATA MAY 13, 1997 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS Robert W. Curran, Judge Robert Moody, IV (Segall & Moody, on brief), for appellant.

Ruth Ann Morken, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.

Following a bench trial, appellant, Stephen Douglas Gowens,

was convicted of distribution of cocaine in violation of Code

§ 18.2-248. He contends the trial court erred in failing to find

that the distribution was merely an "accommodation." For the

reasons which follow, we affirm.

I.

Acting undercover, Investigator Burch met appellant at a

trailer park and discussed the possibility of obtaining cocaine.

After ten to twenty minutes of conversation, appellant told

Burch he would contact a seller and invited Burch to his home.

For thirty minutes to an hour, appellant attempted to contact a

seller who never returned appellant's calls. Burch and appellant

* Pursuant to Code § 17-116.010 this opinion is not designated for publication. subsequently left in Burch's vehicle; appellant directed Burch to

an apartment occupied by Robert Edwards. Appellant told Edwards

that Burch was "an okay kind of individual, not a problem." A

sale price was agreed upon, and Burch was directed to the

bathroom where he exchanged money for drugs with an individual

named Jerome. En route back to appellant's home, appellant

"pestered" Burch for a piece of the cocaine he had just

purchased. Burch refused to give appellant any cocaine but

"attempted to appease him by offering . . . to purchase him a

beer." Appellant agreed, and Burch bought him the offered beer.

Undeterred, however, appellant continued to "badger" Burch for

some of the cocaine. At the close of the Commonwealth's case, appellant moved to

strike the evidence, "at least insofar as it goes beyond an

accommodation aspect of the statute." The trial court denied

appellant's motion to strike; the defense presented no evidence

and renewed its motion, arguing again that "this is a classic

accommodation." The court disagreed, finding the inference clear

that appellant expected to receive something in return for his

helping Burch find drugs.

II.

As an initial matter, appellant contends that there is

insufficient evidence to support a finding beyond a reasonable

doubt that he possessed the cocaine at issue or that he could be

convicted as a principal in the second degree to the

- 2 - distribution. Appellant failed to raise these contentions at

trial and is, therefore, procedurally barred from raising them on

appeal. Rule 5A:18. At trial, appellant did not deny complicity

in the distribution; he argued only that he participated as an

accommodation to Burch. The issue on appeal, therefore, is

whether the trial court erred in failing to find that the

distribution was merely an accommodation.

On appeal, we review the evidence in a light most favorable

to the Commonwealth, granting to it all reasonable inferences

fairly deducible therefrom. Higginbotham v. Commonwealth, 216

Va. 349, 352, 218 S.E.2d 534, 537 (1975). "[A] defendant who

invokes an accommodation defense has the burden of proving the

elements of that defense by a preponderance of the evidence."

Heacock v. Commonwealth, 228 Va. 397, 406, 323 S.E.2d 90, 95

(1984). The accommodation defense is not available where the

distribution was made "with intent to profit thereby from any

consideration received or expected." Code § 18.2-248(D); Heacock, 228 Va. at 407, 323 S.E.2d at 96; see also Stillwell v.

Commonwealth, 219 Va. 214, 219, 247 S.E.2d 360, 363-64 (1978);

Gardner v. Commonwealth, 217 Va. 5, 7, 225 S.E.2d 354, 356

(1976).

The evidence admitted in this case and the reasonable

inferences it raises supports the trial court's finding that

appellant intended to profit from the distribution he arranged.

Appellant persistently "pestered" and "badgered" Burch for a

- 3 - piece of the cocaine that he arranged for Burch to purchase.

This evidence supports the inference that appellant intended to

profit from the transaction throughout the course of the events

described, not simply as an "afterthought" as he contends.

Furthermore, the evidence supports the inference that appellant

had known Burch for, at most, twenty minutes before he attempted

to contact a seller and only another hour before he directed

Burch to the point of sale. While the nature of the relationship

between the parties to the transaction does not conclusively

establish that the transaction was "for profit," see Gardner, 217

Va. at 6, 225 S.E.2d at 355, the evidence that appellant had just

met Burch further supports the inference that appellant intended

to receive consideration for his efforts. Finally, appellant's

reaction to Burch's offer to buy him a beer, followed shortly

thereafter by a resumption of his "badgering" Burch for cocaine,

supports the finding that appellant expected to receive some

consideration for arranging the deal.

The decision of the trial court is accordingly affirmed. Affirmed.

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