                  COURT OF APPEALS OF VIRGINIA


Present: Judges Willis, Bumgardner and Frank
Argued by teleconference


MICHAEL ANTHONY BOOKER
                                         MEMORANDUM OPINION * BY
v.   Record No. 0710-99-4            JUDGE RUDOLPH BUMGARDNER, III
                                               MAY 9, 2000
COMMONWEALTH OF VIRGINIA


            FROM THE CIRCUIT COURT OF FAUQUIER COUNTY
                  William Shore Robertson, Judge

          V. James Ventura (John Carter Morgan, Jr.,
          on brief), for appellant.

          Eugene Murphy, Assistant Attorney General
          (Mark L. Earley, Attorney General, on brief),
          for appellee.


     After a bench trial, the trial court convicted Michael

Anthony Booker of two counts of distributing cocaine.     On

appeal, he contends the trial court erred in rejecting his

defense of accommodation.   Finding no error, we affirm.

     On appeal, we view the evidence in the light most favorable

to the Commonwealth and grant to it all favorable inferences

fairly deducible therefrom.   See Archer v. Commonwealth, 26 Va.

App. 1, 11, 492 S.E.2d 826, 831 (1997).   Viewed in that manner,

the evidence established a police informant twice approached the

defendant and arranged a purchase of cocaine.


     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
       On the first occasion, the informant asked the defendant

for a $40 rock of cocaine.   The defendant told him to come back

later.   When the informant returned, the woman, who had

previously been with the defendant, met him and took him to a

nearby motel.   The informant gave her $40, and she entered a

motel room.   A short time later, the defendant came out of the

room and gave the informant a rock of cocaine.

       The next day, the informant approached the defendant again

and asked for $50 of crack cocaine.     The defendant told the

informant to come back in 15 minutes, which he did, and then the

two returned to the motel.   The informant gave the defendant

$50.   The defendant walked to the rear of the building, and when

he returned, he handed the informant crack cocaine.

       The defendant contends that he stood in the middle of these

transactions and acted only to accommodate the informant.       The

trial court rejected his claim of accommodation and fixed

punishment accordingly.   The defendant argues the trial court

abused its discretion in rejecting his accommodation defense.

       Code § 18.2-248(D) provides for mitigation of punishment

where one convicted of distribution is found not to be a drug

dealer, "but by an individual citizen . . . motivated by a

desire to accommodate a friend, without any intent to profit or

to induce or to encourage the use of drugs."     Stillwell v.

Commonwealth, 219 Va. 214, 219, 247 S.E.2d 360, 364 (1978).       The

Supreme Court defines "profit" as a "'commercial transaction in

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which there is a consideration involved.   It does not

necessarily mean that a seller of drugs has to sell his drugs to

a buyer at a price in excess of the amount the seller paid for

the drugs.'"   Hudspith v. Commonwealth, 17 Va. App. 136, 138,

435 S.E.2d 588, 590 (1993) (quoting King v. Commonwealth, 219

Va. 171, 174, 247 S.E.2d 368, 370 (1978)).

     "The 'profit' contemplated by the statute is 'any

consideration received or expected.'"    Heacock v. Commonwealth,

228 Va. 397, 407, 323 S.E.2d 90, 96 (1984) (defendant who

distributed drugs for free not entitled to accommodation defense

because it was reasonable to infer that as a dealer he would

profit from future transactions).   "A distribution for

consideration precludes even an accommodation instruction."

Roger D. Groot, Criminal Offenses and Defenses in Virginia, Drug

Offenses 164 n.102 (4th ed. 1999) (citations omitted).     See

Winston v. Commonwealth, 16 Va. App. 901, 905-06, 434 S.E.2d 4,

6 (1993) (accommodation jury instruction properly refused where

evidence established that defendant facilitated sale by

procuring drugs and delivering them to informant).

     The defendant could only prevail on this appeal if his

evidence proved an accommodation as a matter of law.     However,

the defendant does not contest that he handed crack cocaine to

the informant in exchange for cash.    That exchange of drugs for

consideration was a sale in violation of Code § 18.2-248.    Code

§ 18.2-248(D) establishes a presumption against an accommodation

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distribution, see Stillwell, 219 Va. at 219, 247 S.E.2d at 364,

and requires the defendant to prove accommodation by a

preponderance of the evidence.     See id. at 225, 247 S.E.2d at

367.   The defendant's claim of accommodation, at most, raised an

issue of fact to be resolved by the fact finder.

       The trial court concluded from the evidence that the

defendant did not distribute as an accommodation.    Credible

evidence in the record supports that finding.    The trier of fact

weighs the credibility of the witnesses, the weight accorded

their testimony, and the inferences to be drawn from proven

facts.    See Long v. Commonwealth, 8 Va. App. 194, 199, 379

S.E.2d 473, 476 (1989).   Accordingly, we affirm the defendant's

convictions.

                                                           Affirmed.




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