                    COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Moon, Judges Benton and Elder
Argued at Richmond, Virginia

CARL DARNELL NOEL
                                   MEMORANDUM OPINION * BY
v.   Record No. 1391-94-2        CHIEF JUDGE NORMAN K. MOON
                                      AUGUST 29, 1995
COMMONWEALTH OF VIRGINIA

            FROM THE CIRCUIT COURT OF LANCASTER COUNTY
                   Joseph E. Spruill, Jr., Judge

           William A. Nunn, III, for appellant.

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



      Carl Darnell Noel was convicted of two counts of

distribution of cocaine in violation of Code § 18.2-248.     Noel

contends on appeal that the evidence was insufficient to prove

his guilt beyond a reasonable doubt.   For the reasons stated

below, we affirm the convictions.

                                 I.

      Michael Conway, a police informant, and Larry Clarke, a

deputy United States Marshal, testified that they were working as

undercover operatives for the Northern Neck Drug Task Force on

August 5, 1993.   At 9 p.m. they saw Noel in a brown Volvo driven

by Chuckie Veney and signalled him to turn into a parking lot.

Conway asked Noel if he was "doing anything," a slang phrase he

described to mean whether Noel had any drugs.      Noel told him to

meet at Davis' Store.   When Conway and Clarke arrived at the

      *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
store, Conway approached the driver's side of the Volvo.    Conway

testified that he handed $50 to Noel in exchange for a rock of

cocaine.   Conway returned to Clarke's vehicle and gave the

cocaine to Clarke, who wrapped it in tin foil, and placed it

under the floor mat.

     Clarke testified that although it was dark, he saw Conway

walk to the passenger's side of the Volvo and exchange something

on the passenger side of the vehicle.    Clark testified that he

could not clearly see the face of the person involved in the

transaction with Conway.   However, he knew that the driver was

the same person he had seen earlier.
     On August 19, 1993, between 8:00 and 8:30 p.m. Conway and

Clarke returned to Davis' Store.   Clarke gave Conway $100.   When

Noel drove up alone in a brown Volvo, Conway got out of Clarke's

car and entered Noel's car.   While Clarke remained in his car at

Davis' Store, Noel and Conway drove away.   Conway testified that

after they drove away he gave Noel $100 in exchange for a rock of

cocaine.   When Conway and Noel returned to Davis' Store, Conway

went to Clarke's car and gave cocaine to Clarke.   Clarke wrapped

the cocaine in paper and put it under his floor mat.

                                II.

     On appeal, we consider the evidence in the light most

favorable to the prevailing party, granting to it all reasonable

inferences fairly deducible therefrom.    Higginbotham v.
Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975).    The




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credibility of witnesses and the weight assigned to their

testimony are matters left exclusively for the trier of fact, in

this case, the trial judge.    Coppola v. Commonwealth, 220 Va.

243, 252, 257 S.E.2d 797, 803 (1979), cert. denied, 444 U.S. 1103

(1980).

     Conway testified that he purchased a rock of cocaine from

Noel in exchange for $50 on August 5.   Clarke's testimony that he

saw Conway and Noel exchange something in their hands and that

Conway immediately returned with the cocaine corroborated this

account.    The fact that Clarke testified that he could not

clearly see Noel's face does not render his testimony incredible

nor does it render Conway's testimony unworthy of belief.      "[I]t

is for triers of the facts to judge the credibility of a

witness."    Swanson v. Commonwealth, 8 Va. App. 376, 379, 382

S.E.2d 258, 259 (1989).

     Conway testified that Noel sold him cocaine.    This evidence

is sufficient to convict Noel, despite Conway's admitted drug use

during the time he worked for the task force.   Both Clarke and

Conway testified that Conway was searched prior to each buy.      It

is immaterial that there were contradictions as to where he was

searched.   The fact that Conway was searched and found to be

clean prior to each buy "'exclude[s] every reasonable hypothesis

of innocence.'"    Coffey v. Commonwealth, 202 Va. 185, 188, 116

S.E.2d 257, 259 (1960) (citation omitted).

     Accordingly, we hold that the evidence was sufficient to



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convict Noel of these crimes and affirm the trial judge's

decision.

                                             Affirmed.




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BENTON, J., dissenting.



     The evidence in this case does not "point unerringly" to

Noel as the source of the cocaine.      Poulos v. Commonwealth, 174

Va. 495, 499, 6 S.E.2d 666, 667 (1940).     Thus, it fails to prove

the necessary elements of the offense beyond a reasonable doubt.

 In re Winship, 397 U.S. 358, 364 (1970).

     During the ten months that Conway worked as an informant for

the Northern Neck Drug Task Force, he used and distributed

cocaine; he used powder and crack cocaine and used cocaine to

"free base."   Conway also testified that he had been a user of

cocaine for ten years prior to his work with the drug task force

and that his drug use increased after he began assisting the task

force.   Conway could not "put a number" on the amount of his

cocaine usage or on the amount and times he personally

distributed cocaine.
     The evidence proved that during the ten months Conway and

Clarke joined in their venture to buy drugs Conway was also

buying drugs for his own use and distribution.     Conway testified

that he and Clarke were involved in many cases, and that it was

"hard to remember each and every detail."     Clarke testified that

he was unaware that Conway was using cocaine during the period

they were buying drugs.    He only learned of Conway's activities

when Noel's trial began.   He also was not aware that Conway was

distributing cocaine during the ten month period that Conway was

buying drugs for the task force.


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     The evidence does not prove that Conway had no drugs on his

person when he made each transaction.    Although Clarke testified

that he searched Conway before each occasion they went to buy

drugs, he and Conway disagreed as to where the searches occurred.

The contradictions in their testimony do not clearly establish

when or where the searches occurred and, thus, whether the

searches had the expected result.

     Clarke testified that he searched Conway in an open wooded

area on August 5.   He guessed that the search occurred shortly

before they met Noel.   Conway testified, however, that on August

5 Clarke searched him in Conway's home.   Clarke has no

recollection of the place where he searched Conway on August 19.
     Both Conway and Clarke testified that it was dark when

Conway approached the car on August 5.    Clarke could not see with

whom Conway was making an exchange, and he could not see what was

exchanged.   After Clarke received the item from Conway, Clarke

placed it under a floor mat in the car.   Clarke made a stop to

make a telephone call before the item was delivered to a deputy

sheriff.

     On August 19 when Clarke and Conway were driving around

looking for drug sellers, Clarke did not see Conway make any

exchange.    Conway entered the defendant's automobile and went for

a ride.    When Conway returned he gave Clarke an item that was

later identified as cocaine.

     Conway did not know the number of transactions that he and




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Clarke made on August 5.   Clarke did not recall the number of

transactions Conway made on August 5 or August 19.    However,

Clarke testified that on most days there were several

transactions.   Clarke did not search Conway after he made

purchases on August 5 or August 19.     All of these transactions in

which Conway obtained drugs occurred when Conway, while acting as

an informant for the drug task force, used cocaine and

distributed cocaine for his own profit.    Thus, the evidence does

not exclude the reasonable hypothesis that Conway, an admitted

user of and dealer in cocaine, did not deliver to the police

officer cocaine that he possessed and owned for his own drug use

and distribution.
     Conway was also paid for each purchase of cocaine that he

made for the task force.   Conway used the money he received from

the drug task force to purchase cocaine to support his cocaine

habit.    Conway testified that he did not disclose to the task

force the names of the sellers who supplied cocaine to him for

his personal usage and for his personal distribution.    Neither

Conway nor any person who supplied his illegal drugs has been

charged, prosecuted, or convicted for possession and distribution

of drugs.

     The evidence in this case proved that Conway was using and

dealing the same illegal drugs that he was also procuring for the

police.   The evidence proved that he had the motive and

opportunity for self-serving conduct and testimony.    Because the




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evidence does not exclude the hypothesis that Conway gave to the

police the products of his own illegal conduct, I would hold that

the evidence failed to prove beyond a reasonable doubt that he

obtained the cocaine from Noel.   Thus, I would reverse the

convictions.




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