                        COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Coleman and Elder
Argued at Richmond, Virginia


MARK A. KIRBY
                                           MEMORANDUM OPINION * BY
v.   Record No. 0940-98-2                   JUDGE LARRY G. ELDER
                                                MARCH 30, 1999
COMMONWEALTH OF VIRGINIA


              FROM THE CIRCUIT COURT OF CUMBERLAND COUNTY
                       Richard S. Blanton, Judge

          Amy M. Curtis (Cary B. Bowen; Bowen, Bryant,
          Champlin & Carr, on briefs), for appellant.

          Jeffrey S. Shapiro, Assistant Attorney
          General (Mark L. Earley, Attorney General, on
          brief), for appellee.


     Mark A. Kirby (appellant) appeals from his bench trial

conviction for distribution of cocaine in violation of Code

§ 18.2-248.     On appeal, he contends the evidence was

insufficient to support his conviction for distribution to a

police informant.    For the reasons that follow, we affirm the

conviction.

                                  I.

                                 FACTS

     On November 26, 1996, Narcotics Investigator A.Q. Ellington

was working with a reliable undercover informant named Kevin

Hardy (the informant).     Under Ellington's supervision, the




    *Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
informant was attempting to purchase cocaine from a target

individual.   When the informant was unable to reach the target

individual by pager, he called a woman named Jackie Harvey to

see if she could tell him where to purchase some crack cocaine,

and he told her he would need a ride.   Harvey told the informant

she could supply him with transportation and that he should wait

for a man in a burgundy or maroon Grand Am to pick him up and

take him to a place where he could purchase cocaine.   About

seven minutes later, appellant pulled up in a maroon-burgundy

Grand Am, and the informant got into the car.

     While the informant was with appellant, Investigator

Ellington monitored a transmitter which permitted him to hear

appellant's and the informant's conversation.   Appellant told

the informant that Harvey had sent him and that he thought the

informant could get some crack cocaine from a man named Charlie

Randolph.    Appellant then drove the informant to Randolph's

house.   Randolph and the informant then went inside the house

where the informant purchased $40 of cocaine.   The informant

then got back into the car, where appellant had remained.

During the return trip, appellant asked the informant to give

him a piece of the cocaine in exchange "for [his] trouble."     The

informant then broke off a piece of the cocaine and gave it to

appellant.




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        Charlie Randolph testified and denied selling drugs to the

informant.

        Appellant testified, claiming that Harvey had asked him to

provide transportation for a friend, the informant, and told him

that the informant would buy gasoline for appellant's car in

exchange for the transportation.    Appellant denied knowing the

purpose of the trip until after leaving Randolph's house.

Appellant contended that when he asked the informant to pay him

for the transportation, the informant tried to give him

something appellant knew was a drug.

        Appellant moved to strike at the close of the

Commonwealth's evidence, contending that it proved only that

appellant possessed the cocaine and that, "even if you want to

take it one step further, all you have is an accommodation.

. . .    [We] don't . . . have a[t] this point a full-fledged

distribution."    The trial court denied the motion.

        At the close of all the evidence, appellant did not renew

his motion to strike.    Counsel for appellant contended in

closing argument that appellant gave credible testimony and that

the evidence, therefore, was insufficient to permit his

conviction.    In convicting appellant of distributing cocaine,

the trial court found the informant's testimony credible and

rejected appellant's, noting that the informant was "one of the




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most credible informants that I have heard in the courtroom" and

that "what he said about this whole transaction made sense."


                               II.

                             ANALYSIS

     When considering the sufficiency of the evidence on appeal in

a criminal case, this Court views the evidence in the light most

favorable to the Commonwealth, granting to it all reasonable

inferences fairly deducible therefrom.   See Higginbotham v.

Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975).

          The weight which should be given to evidence
          and whether the testimony of a witness is
          credible are questions which the fact finder
          must decide. However, whether a criminal
          conviction is supported by evidence
          sufficient to prove guilt beyond a reasonable
          doubt is not a question of fact but one of
          law.

Bridgeman v. Commonwealth, 3 Va. App. 523, 528, 351 S.E.2d 598,

601-02 (1986).

     Appellant challenges the credibility of the Commonwealth's

evidence and contends that this evidence, even viewed in the

light most favorable to the Commonwealth, failed to prove that

he facilitated the drug transaction or acted in collusion with

the seller.

     In order to have been convicted of drug distribution,

appellant need not have been the actual distributor of the

cocaine the informant purchased.   An accused may be convicted of



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being a principal in the second degree to the underlying offense

if the evidence proves that he "intended his words, gestures

signals, or actions to in some way encourage, advise, or urge,

or in some way help the person committing the crime to commit

it."    Ramsey v. Commonwealth, 2 Va. App. 265, 269, 343 S.E.2d

465, 468 (1986).   "The prosecution must prove that the accused

said or did something showing his consent to the felonious

purpose and his contribution to its execution. . . .   [H]e must

share the criminal intent of the actual perpetrator or be guilty

of some overt act."    Hall v. Commonwealth, 225 Va. 533, 536, 303

S.E.2d 903, 904 (1983) (citation omitted).   Under Code

§ 18.2-18, every principal in the second degree to the felony of

drug distribution may be punished as if a principal in the first

degree--the actual perpetrator.

       The trial court, as the finder of fact, was entitled to

reject appellant's testimony regarding the events of November

26, 1996, and to find, as it did, that the informant was telling

the truth about appellant's involvement in what occurred that

evening.   Viewing Investigator Ellington's and the informant's

testimony in the light most favorable to the Commonwealth, it

proved that appellant facilitated Randolph's distribution of

drugs to the informant.   After the informant had spoken to

Harvey about buying cocaine, appellant arrived in the vehicle

Harvey said he would be driving.   Appellant identified Randolph



                                - 5 -
as a source for drugs and drove the informant to Randolph's

house so the informant could make the purchase.    Upon completion

of the sale, appellant requested and received a portion of the

cocaine the informant had purchased in exchange "for [his]

trouble."     Appellant, through his actions, helped Randolph

consummate the sale and was properly convicted of drug

distribution as a principal in the second degree.

     Appellant contends that, even if the evidence proved he

participated in the distribution, it also proved that he did so

as an accommodation, as set out in Code § 18.2-248(D). 1

     We hold that appellant is barred on appeal from claiming

that he participated in the cocaine distribution as an

accommodation.     Under Rule 5A:18, any issue not properly

presented to the trial court is deemed waived on appeal.      Where

     1
         Code § 18.2-248(D) provides as follows:

             If such person proves that he gave,
             distributed or possessed with intent to give
             or distribute a controlled substance
             classified in Schedule I or II only as an
             accommodation to another individual who is
             not an inmate in a community correctional
             facility, local correctional facility or
             state correctional facility as defined in
             § 53.1−1 or in the custody of an employee
             thereof, and not with intent to profit
             thereby from any consideration received or
             expected nor to induce the recipient or
             intended recipient of the controlled
             substance to use or become addicted to or
             dependent upon such controlled substance, he
             shall be guilty of a Class 5 felony.



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a defendant moves to strike at the close of the Commonwealth's

evidence but fails to renew that motion at the close of all the

evidence and fails to contest the same issues raised in the

motion to strike by some other means--such as through closing

argument or a motion to set aside the verdict or to reconsider--

he has waived his right to raise those issues on appeal.    See

Lee v. Lee, 12 Va. App. 512, 514-16, 404 S.E.2d 736, 737-38

(1991) (en banc); White v. Commonwealth, 3 Va. App. 231, 233-34,

348 S.E.2d 866, 867-68 (1986).

     Here, appellant raised the issue of accommodation in his

motion to strike at the close of the Commonwealth's evidence,

but he failed to renew his motion to strike at the close of all

the evidence.   In addition, he did not mention accommodation in

his closing argument and did not make any post-trial motions.

Therefore, he failed to preserve the issue of accommodation for

appeal.

     Even if appellant had properly preserved the issue for

appeal, the record contains no evidence that he engaged in the

distribution as an accommodation.    Appellant's theory of the

case was that he had no knowledge of the distribution until

after it had occurred, whereas the Commonwealth's theory,

accepted by the trial court, was that appellant was an active

participant facilitating the transaction.   Therefore, no

evidence supported an accommodation theory.



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     For these reasons, we reject appellant's challenge to the

sufficiency of the evidence and affirm the challenged

conviction.

                                                        Affirmed.




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