                        COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Fitzpatrick, Judges Bumgardner and Felton
Argued at Salem, Virginia


TREVEK LAMANE BROOKS
                                           MEMORANDUM OPINION * BY
v.   Record No. 3399-01-3              JUDGE RUDOLPH BUMGARDNER, III
                                              NOVEMBER 5, 2002
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE
                 James F. Ingram, Judge Designate

          Joseph R. Winston, Special Appellate Counsel
          (Public Defender Commission, on briefs), for
          appellant.

          Kathleen B. Martin, Assistant Attorney
          General (Jerry W. Kilgore, Attorney General,
          on brief), for appellee.


     The trial court convicted Trevek Lamane Brooks of

possession of marijuana with intent to distribute in violation

of Code § 18.2-248. 1   The defendant contends the evidence is

insufficient to prove he intended to distribute and at most

shows an accommodation distribution.    Finding the evidence

sufficient, we affirm the conviction.

     We view the evidence and all reasonable inferences

therefrom in the light most favorable to the Commonwealth.


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
     1
       "[I]t shall be unlawful for any person to . . . possess
with intent to . . . sell, give or distribute a controlled
substance . . . ." Code § 18.2-248(A).
Commonwealth v. Taylor, 256 Va. 514, 516, 506 S.E.2d 312, 313

(1998).   While investigating an unrelated complaint, a uniformed

police officer saw a car parked on the wrong side of the street.

The defendant sat in the driver's seat, and Tyson Wilson sat in

the front passenger seat.   When the officer approached the

vehicle, he saw the defendant holding in his hands two clear

plastic bags full of green leafy material and cash.     Wilson had

a bandana in his hand that contained two pieces of similar plant

material.

     The officer believed the green leafy material was

marijuana, and he thought he was observing a drug transaction.

When he told the two occupants to keep their hands visible, the

defendant said, "All right, you got me . . . you got me."

Wilson told the officer that the defendant was showing him

marijuana and cash he had found.      The defendant "took about $5

worth [of marijuana] and put it in my hand."     Wilson testified

he was not attempting to purchase any marijuana and the

defendant did not give him any to keep.     The marijuana weighed

6.47 ounces (183.7 grams) and the $186 in cash consisted of one

$100 bill, one $20, five $10s, and sixteen $1s.     The defendant

had a pager on his belt.    At trial he claimed he had just found

the marijuana and cash wrapped in a towel lying in the middle of

the street and was showing it to Wilson.     No evidence indicated

the defendant used marijuana.


                              - 2 -
     In order to prove the defendant possessed marijuana with

the intent to distribute, the Commonwealth must prove the

defendant possessed the marijuana contemporaneously with his

intention to distribute it.      Stanley v. Commonwealth, 12

Va. App. 867, 869, 407 S.E.2d 13, 15 (1991) (en banc).      The

defendant does not dispute that he possessed the marijuana that

he held in his hands.     The undisputed evidence showed that he

had handed Wilson some of it, "enough to role a blunt."        The

defendant transferred marijuana to Wilson, and that alone

permits the elemental inference that he intended to do that

which he did.      Schmitt v. Commonwealth, 262 Va. 127, 145, 547

S.E.2d 186, 199 (2001), cert. denied, 120 S. Ct. 840 (2002).

     The defendant contends that at most the evidence proved an

accommodation. 2    The contention implicitly concedes the evidence

was sufficient for conviction.      Stillwell v. Commonwealth, 219

Va. 214, 219-20, 247 S.E.2d 360, 364 (1978), held Code

§ 18.2-248(A) creates "a single offense," and Code § 18.2-248(D)

"provides for the mitigation of punishment."     The provision "is

relevant to the determination of the proper degree of

punishment, but only after guilt has been established."        Id. at

223, 247 S.E.2d at 365.     If the evidence was sufficient to prove

the transfer was an accommodation, it necessarily proved a

distribution.


     2
         The defendant did not request an accommodation finding at
trial.    Rule 5A:18 controls.
                               - 3 -
     The evidence permits a finding that the defendant intended

to distribute the marijuana he held in his hands.   Accordingly,

we affirm.

                                                    Affirmed.




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