                       COURT OF APPEALS OF VIRGINIA


Present: Judges Bumgardner, Felton and Senior Judge Overton
Argued at Chesapeake, Virginia


LEONA T. MANDER, S/K/A
 LEONA THELMA MANDER
                                           MEMORANDUM OPINION * BY
v.   Record No. 1310-02-1                  JUDGE NELSON T. OVERTON
                                                APRIL 1, 2003
COMMONWEALTH OF VIRGINIA


              FROM THE CIRCUIT COURT OF GLOUCESTER COUNTY
                   James C. Godwin, Judge Designate

           Douglas J. Walter (McDermott & Roe, on
           briefs), for appellant.

           Donald E. Jeffrey, III, Assistant Attorney
           General (Jerry W. Kilgore, Attorney General;
           Leah A. Darron, Assistant Attorney General,
           on brief), for appellee.


     A jury convicted Leona Mander of three counts of distribution

of cocaine.    On appeal, she contends the trial court erred in

denying her motion to strike the evidence.    Mander also contends

the trial court erred in denying her motion to strike a juror for

cause.   We disagree and affirm.

                              BACKGROUND

     McArthur Riddle, a retired police officer, worked as a paid

undercover informant for the drug task force.    Riddle was paid

$100 for each successful drug purchase and admitted the money he


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
earned from the task force constituted a good percentage of his

income.   On January 22, January 31 and April 4, 2001, Riddle met

with Investigators Jones and Motley of the drug task force.

Riddle testified that on January 22 he telephoned Mander's home,

spoke to a woman, and arranged to purchase crack cocaine.     Riddle

testified he recognized Mander's voice because he had met her

prior to January 22.   Riddle testified he drove to Mander's home,

Mander entered his car, and he purchased crack cocaine from her.

Jones was in another vehicle nearby, but could not see the

transaction.   Jones followed Riddle to a prearranged location, and

Riddle gave Jones the crack cocaine.

     Riddle testified that on January 31 he drove to Mander's

home, blew the horn and she came outside.    Riddle testified Mander

entered his car and he purchased crack cocaine from her.    Jones

was in another vehicle nearby, but again could not see the

transaction.   Jones followed Riddle to a prearranged location, and

Riddle gave him the crack cocaine.

     Riddle testified that on April 4 he called Mander on the

telephone and arranged a drug purchase.   Riddle drove to Mander's

home and purchased crack cocaine from her.    Motley was in another

vehicle nearby, but could not see the transaction.   Motley

followed Riddle to a prearranged location, and Riddle gave him the

crack cocaine.




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        None of Riddle's purchases were recorded on video or audio

tape.    On April 6, 2001, Jones interviewed Mander at her home.

Jones testified that Mander told him that she had a "crack cocaine

problem" and she sold cocaine.    The police searched Mander's home

and recovered a medicine bottle with Mander's name on it.     The

bottle tested positive for cocaine.      The police did not find any

paraphernalia commonly associated with individuals distributing

cocaine when they searched Mander's home.

        Mander testified she had no prior criminal record and had a

college education.    Mander testified she never sold cocaine to

Riddle and denied being at home at the times Riddle purchased the

cocaine.    Mander denied stating to Jones that she had a "crack

cocaine problem."    Three alibi witnesses testified for Mander.

                        SUFFICIENCY OF EVIDENCE

        Mander argues the Commonwealth failed to provide sufficient

corroboration of the testimony by the paid undercover informant.

Mander also argues her testimony was more credible than the

informant's testimony and she presented three credible alibi

witnesses.

        "The credibility of the witnesses and the weight accorded

the evidence are matters solely for the fact finder who has the

opportunity to see and hear that evidence as it is presented."

Sandoval v. Commonwealth, 20 Va. App. 133, 138, 455 S.E.2d 730,

732 (1995).     "In its role of judging witness credibility, the



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fact finder is entitled to disbelieve the self-serving testimony

of the accused and to conclude that the accused is lying to

conceal his guilt."     Marable v. Commonwealth, 27 Va. App. 505,

509-10, 500 S.E.2d 233, 235 (1998).      "If there is evidence to

support the conviction, an appellate court is not permitted to

substitute its own judgment for that of the finder of fact, even

if the appellate court might have reached a different

conclusion.    Commonwealth v. Presley, 256 Va. 465, 466, 507

S.E.2d 72, 72 (1998).    "Direct evidence is evidence which, if

believed, establishes as a fact the point in issue."     Charles E.

Friend, The Law of Evidence in Virginia § 1-3(c) (5th ed. 1999).

     Riddle testified he purchased crack cocaine from Mander.

If believed by the jury, his testimony established this fact.

The Commonwealth was not required to corroborate Riddle's

testimony.    The jury heard the testimony of the witnesses and

observed their demeanor.    The jury knew that Riddle was paid for

each successful drug transaction and that Mander was college

educated and had no prior criminal record.     At the conclusion of

the evidence the jury evaluated the testimony of the witnesses,

including Mander's alibi witnesses, and determined that the

testimony of the Commonwealth's witnesses was more credible than

the testimony of the alibi witnesses.     The credibility of the

witnesses and the weight of the evidence are matters to be

determined solely by the trier of fact, and we will not



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substitute our judgment for that of the trier of fact.      The

Commonwealth's evidence was competent, was not inherently

incredible, and was sufficient to prove beyond a reasonable

doubt that appellant was guilty of three counts of distribution

of cocaine.

     FAILURE OF THE TRIAL COURT TO STRIKE A JUROR FOR CAUSE

     During jury selection, in response to a question from the

prosecutor, prospective juror Stanley Young stated his brother

had been convicted of a drug offense ten to fifteen years

earlier but "[i]t would not have any bearing on what would

happen to [Mander] today."    The following exchange then

occurred:

            [PROSECUTOR]: Do you believe that if
            someone is charged with a drug offense that
            they're more likely than not to be guilty of
            that offense?

            [YOUNG]:   Not necessarily, no.

            [DEFENSE COUNSEL]:    Not necessarily?

            [YOUNG]:   No.

            [DEFENSE COUNSEL]: Could you indicate what
            circumstances, you said not necessarily.
            When would it be necessary?

            [YOUNG]: If they had the drugs in their
            hand, they were caught, sure, you know, it
            would be.

            [DEFENSE COUNSEL]: Do you believe simply
            because a police officer said something,
            that it must be so?

            [YOUNG]:   No, sir.



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          [DEFENSE COUNSEL]: If someone, an officer
          testified about the hand to hand purchase,
          do you believe that he could be mistaken as
          to who it was?

          [YOUNG]:     No.

     Defense counsel made a motion at a bench conference, but it

was not transcribed.    After the bench conference, the trial

judge again asked whether any prospective juror had any

prejudice against Mander or knew of any reason why they could

not render a fair and impartial verdict based upon the evidence.

No prospective juror responded.      Young was thereafter

peremptorily struck from the panel.        Mander did not object to

the swearing of the jury panel.

     At the close of the Commonwealth's case, defense counsel

stated he wanted to preserve a motion to strike Young for cause

that he made outside the presence of the court reporter at the

bench during voir dire.       The prosecutor objected because it had

not been made on the record during voir dire.        The trial judge

responded, "I heard you make the objection.       I overrule it."

     On appeal, Mander argues Young's responses during voir dire

"demonstrated a preconceived viewpoint that could severely bias

the jury against" her.       Mander argues the trial judge's general

question after the bench conference as to whether the

prospective jurors could render an impartial verdict was

insufficient to address Young's bias.       The Commonwealth argues




                                   - 6 -
this issue is barred by Rule 5A:18 because the argument during

the bench conference was not transcribed and the record fails to

show why the trial judge denied Mander's motion to strike Young.

     "No ruling of the trial court . . . will be considered as a

basis for reversal unless the objection was stated together with

the grounds therefor at the time of the ruling, except for good

cause shown or to enable the Court of Appeals to attain the ends

of justice."   Rule 5A:18.   "An appellate court must dispose of

the case upon the record and cannot base its decision upon

appellant's petition or brief, or statements of counsel in open

court.    We may act only upon facts contained in the record."

Smith v. Commonwealth, 16 Va. App. 630, 635, 432 S.E.2d 2, 6

(1993).   "The burden is upon the appellant to provide us with a

record which substantiates the claim of error.   In the absence

thereof, we will not consider the point."    Jenkins v. Winchester

Dep't of Soc. Servs., 12 Va. App. 1178, 1185, 409 S.E.2d 16, 20

(1991).

     The record shows that defense counsel moved to strike Young

for cause and that this motion was denied.   However, the record

does not show the basis for the motion and does not show why the

trial judge denied the motion.    Upon appellate review, this

Court defers to a trial court's decision to retain a prospective

juror, and will not reverse that decision absent a showing of

"manifest error."    Stewart v. Commonwealth, 245 Va. 222, 234,



                                 - 7 -
427 S.E.2d 394, 402 (1993) (finding that a trial court sees and

hears each member of the venire, and is in a better position

than an appellate court to decide whether a factor will prevent

or substantially impair a particular person's performance of his

or her duties as a juror).   Mander has failed to provide us with

a sufficient record on appeal to determine whether the trial

court committed "manifest error" in failing to strike Young for

cause.   Accordingly, Rule 5A:18 bars consideration of this

issue, and the record does not reflect any reason to invoke the

good cause or ends of justice exceptions to Rule 5A:18.

     Based upon the foregoing, we affirm Mander's convictions.

                                                          Affirmed.




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