                                               Tuesday        19th

               December, 1995.



Bobbie L. Cotter, s/k/a
 Bobby L. Cotter,                                             Appellant,

against       Record No. 0367-93-2
              Circuit Court Nos. F212-92 and F213-92

Commonwealth of Virginia,                                    Appellee.

                          Upon a Rehearing En Banc

        Before Chief Judge Moon, Judges Baker, Benton, Coleman,
       Willis, Elder, Bray, Fitzpatrick, Annunziata and Overton


               H. Otis Brown for appellant.

               Leah A. Darron, Assistant Attorney General
               (James S. Gilmore, III, Attorney General;
               Robert B. Beasley, Jr., Assistant Attorney
               General, on brief), for appellee.



            On December 13, 1994, a panel of this Court affirmed

appellant's conviction for conspiracy to distribute cocaine and

reversed his conviction for distribution of cocaine.     Cotter v.

Commonwealth, 19 Va. App. 382, 452 S.E.2d 20 (1994).     A rehearing en

banc was granted by this Court and heard on November 16, 1995.        This

case is controlled by McQuinn v. Commonwealth, 20 Va. App. 753, 460

S.E.2d 624 (1995)(en banc), which was decided subsequent to the panel

decision.   Here, as in McQuinn, appellant moved to strike the evidence

at the conclusion of the Commonwealth's case but failed to do so at

the conclusion of all the evidence.    Appellants in both cases moved to

set aside the jury's verdict.    In McQuinn the only reason given for
the motion to set aside the verdict was that the verdict was "contrary

to the law and the evidence."    In the case before us, the court's
order stated that the motion to set aside the verdict was made "for

the reasons stated to the record."   The record, however, contains no

"reasons" for the motion and at oral argument counsel conceded that

the reason given was that the verdict was contrary to the law and the

evidence.

            For the foregoing reasons and the reasons stated in McQuinn,

the opinion previously rendered by a panel of this Court is withdrawn,

the mandate entered on that date is vacated and the judgment of the

trial court is affirmed.    The appellant shall pay to the Commonwealth

thirty dollars damages.
____________________
Benton, J., dissenting.



            I do not agree that McQuinn v. Commonwealth, 20 Va. App.

753, 460 S.E.2d 624 (1995)(en banc), compels the result that the

majority reaches in this case.   That decision addressed the following

procedural circumstance:
                At the conclusion of the presentation of
             the Commonwealth's evidence, McQuinn moved
             the trial court to strike the evidence on
             the ground that it was insufficient to prove
             the charges against him. The trial court
             denied that motion and McQuinn presented
             evidence. He did not renew his motion to
             strike at the conclusion of all the
             evidence.

Id. at 755, 460 S.E.2d at 625.    In McQuinn, we held "that by

presenting evidence, McQuinn waived his motion to strike the evidence

and that by failing to present the sufficiency issue to the trial

court in the context of all the evidence, he failed to preserve that

issue for appeal."    Id.

            Nothing in this Court's en banc opinion, or in the panel



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opinion that it overturned, see McQuinn v. Commonwealth, 19 Va. App.

418, 451 S.E.2d 704 (1994), indicated that McQuinn's counsel made a

motion to set aside the verdict.    Indeed, the panel's opinion was

clearly based upon the premise that "[a]lthough the defendant did not

move to strike the prosecution's evidence at the conclusion of his own

evidence, he did make such a motion at the conclusion of the

prosecution's evidence."    Id. at 420, 451 S.E.2d at 705.    Solely upon

that procedural posture, the panel's majority ruled that "the

defendant's motion at the conclusion of the Commonwealth's evidence

was sufficient to preserve the question for review on appeal."      Id.

Furthermore, the opinion dissenting from the panel's decision did not

refer to a motion to set aside the verdict.   The dissent also was

premised upon "the case in which the defendant did not make a motion

to strike at the conclusion of all the evidence or did not make a

motion to set aside the verdict."    19 Va. App. at 431, 451 S.E.2d at

711.

          Although this Court's en banc decision in McQuinn reversed

the panel's decision, this Court did not preclude review when the

sufficiency of the evidence was challenged in a motion to set aside

the verdict.    It stated the following rule:
               A motion to strike, made at the conclusion
               of the Commonwealth's evidence, addresses
               the sufficiency of proof within the context
               of that evidence. If the accused elects not
               to stand on his motion and presents
               evidence, he thereby creates a new context
               in which the court, if called upon to do so,
               must judge the sufficiency of the evidence.
                Thus, the original motion to strike is no
               longer applicable because it addresses a
               superseded context. If the accused intends
               to present the issue of sufficiency to the
               trial court at the conclusion of all the
               evidence, he must do so by new or renewed
               motion, made in the context of all the


                                    -3-
evidence.




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                  McQuinn failed to present the sufficiency
               issue to the trial court in a context upon
               which it could rule and thereby failed to
               preserve that issue for appeal.


20 Va. App. at 757, 460 S.E.2d at 626.

            The principle is well established in Virginia that a motion

to set aside a verdict is adequate to challenge the sufficiency of the

evidence.
               While a motion to strike is an appropriate
               way of testing the sufficiency of relevant
               evidence to sustain an adverse verdict, it
               is not the only way. It has long been the
               practice in this jurisdiction to test the
               sufficiency of such evidence by a motion to
               set aside the verdict.


Gabbard v. Knight, 202 Va. 40, 43, 116 S.E.2d 73, 75 (1960).

            The record establishes that at the conclusion of the

Commonwealth's case, Cotter's counsel made motions to strike both the

conspiracy charge and the distribution charge. 1   After the jury

returned its verdict, Cotter's counsel again challenged the

sufficiency of the evidence when he "moved to set aside the jury's

    1
     The motions in their entirety were as follows:

            I have a motion. Judge, we move to strike
               both charges because if you look at the
               evidence presented by the Commonwealth,
               there was no sale made by the defendant
               to the informant, sale was made by Betty
               Cotter, not by Bobby Cotter. So, in the
               distribution charge we move to strike on
               those particular grounds.    And, on the
               conspiracy charge we move to strike,
               there's been no evidence that the
               defendant ever agreed to sell cocaine to
               anyone including the informant.    There
               was talk about 8-ball, but it was never
               shown that the defendant ever used the
               term to mean cocaine.      So, we would
               strike both those indictments on those
               grounds.




                                    -5-
verdict for the reasons stated to the record."   The trial judge

overruled the motion.   Thus, this record clearly establishes that the

issue of the sufficiency of the evidence was renewed for the reasons

previously stated, was ruled upon by the trial judge, and was

appropriately preserved for appeal.

          For the reasons set forth in the previous panel decision of

this case, see Cotter v. Commonwealth, 19 Va. App. 382, 452 S.E.2d 20

(1994), I would hold that the issues of sufficiency of the evidence

were properly preserved for appeal, that the evidence supports the

conviction for conspiring to distribute cocaine, and that the evidence

did not prove beyond a reasonable doubt that Cotter distributed

cocaine.
____________________


          The trial court shall allow court-appointed counsel for the

appellant a total fee of $600 for services rendered the appellant on

this appeal, in addition to counsel's costs and necessary direct out-

of-pocket expenses.

          The Commonwealth shall recover of the appellant the amount

paid court-appointed counsel to represent him in this proceeding,

counsel's costs and necessary direct out-of-pocket expenses, and the

fees and costs to be assessed by the clerk of this Court and the clerk

of the trial court.

          This order shall be published and certified to the trial

court.




                                  -6-
Costs due the Commonwealth
 by appellant in Court of
 Appeals of Virginia:

    Attorney's fee     $600.00          plus costs and expenses
    Filing fee           25.00


                     A Copy,

                             Teste:

                                            Cynthia L. McCoy, Acting Clerk

                             By:

                                            Deputy Clerk




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