                      COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Fitzpatrick, Judges Elder and Humphreys
Argued at Alexandria, Virginia


LAWRENCE JOSEPH WALKER
                                          MEMORANDUM OPINION * BY
v.   Record No. 2974-01-4                  JUDGE LARRY G. ELDER
                                               MARCH 4, 2003
COMMONWEALTH OF VIRGINIA


              FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
                      Stanley P. Klein, Judge

          S. Jane Chittom, Appellate Defender (Public
          Defender Commission, on brief), for
          appellant.

          Stephen R. McCullough, Assistant Attorney
          General (Jerry W. Kilgore, Attorney General,
          on brief), for appellee.


     Lawrence Joseph Walker (appellant) appeals from his jury

trial conviction for possession of cocaine with intent to

distribute.   On appeal, he contends the trial court erroneously

refused to give his proffered jury instruction on accommodation

in the sentencing phase of the trial.   We hold the trial court

did not err because the evidence, viewed in the light most

favorable to appellant, did not support the proffered

accommodation instruction.   Thus, we affirm appellant's

conviction.



     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
     The Commonwealth contends appellant failed to preserve his

assignment of error for appeal.   We disagree.

     The purpose of Rule 5A:18 is to avoid unnecessary appeals,

reversals, and mistrials by requiring litigants to inform the

trial judge of the action complained of so that the judge has

the opportunity to consider the issue intelligently and take

timely corrective action.   Robinson v. Commonwealth, 13 Va. App.

574, 576, 413 S.E.2d 885, 886 (1992).   We hold that the

arguments appellant made at trial, coupled with the trial

court's express findings in denying the proffered accommodation

instruction, were sufficient to preserve appellant's present

argument for appeal.   Appellant argued to the trial court that

the absence of evidence of an intent to profit, coupled with

evidence that the undercover detectives intended to pool the

drugs rather than to give appellant a specific rock as

compensation for his services, proved this was not a commercial

transaction and supported the giving of an accommodation

instruction.   Likewise, on appeal, he argues the lack of "a

prior agreement [for appellant to] receive a 'rock' or anything

else in payment for his services" shows a lack of intent to

profit.   That appellant uses the term "gratuity" for the first

time on appeal and argues no evidence exists to prove the

parties made an agreement to compensate appellant before

engaging in the transaction is part and parcel of the argument



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appellant made in the trial court.       Thus, this argument is

properly before us on appeal.

     A defendant is entitled to have the jury instructed on

those theories of the case that are supported by "'more than a

scintilla'" of evidence.   Frye v. Commonwealth, 231 Va. 370,

388, 345 S.E.2d 267, 280 (1986) (quoting LeVasseur v.

Commonwealth, 225 Va. 564, 590, 304 S.E.2d 644, 658 (1983)).          In

determining whether sufficient evidence supported the giving of

a proffered instruction, we view the evidence in the light most

favorable to the party requesting the instruction.         Boone v.

Commonwealth, 14 Va. App. 130, 131, 415 S.E.2d 250, 251 (1992).

     Code § 18.2-248 provides, inter alia, that any person who

possesses cocaine with an intent to distribute "shall upon

conviction be imprisoned for not less than five nor more than

forty years and fined not more than $500,000."      Code

§ 18.2-248(A), (C).   However,

               If such person proves that he . . .
          possessed [that substance] with intent to
          . . . distribute . . . only as an
          accommodation to another individual . . .
          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.

Code § 18.2-248(D).   A Class 5 felony is punishable by

imprisonment for a term of "not less than one year nor more than

ten years, or in the discretion of the jury or the court trying

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the case without a jury, confinement in jail for not more than

twelve months and a fine of not more than $2,500, either or

both."    Code § 18.2-10(e).

     Thus, in order for a contemplated sale to be an

accommodation subject to the lower penalty range, the seller

must act without any intent to profit thereby.    See Code

§ 18.2-248(D).

            The expression "profit" is used in the
            statute to indicate a commercial transaction
            in 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.

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) (emphases added)

(quoting earlier version of Code § 18.2-248).

     Here, appellant admitted that he hoped to smoke some of the

cocaine he purchased with the undercover detectives and that he

developed this hope when their encounter first began.      When the

detectives approached appellant and inquired about whether he

had any cocaine, appellant had neither money nor cocaine in his

possession.   However, he told Detective Christian Quinn that he

smoked cocaine and admitted at trial that "[smoking cocaine] was

[his] intention at [that] time."    (Emphasis added).   Appellant

also testified that he believed he and the detectives were

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"supposed to be going back [to the motel] and sit down and get

high together."   Thus, the evidence, viewed in the light most

favorable to appellant, established that he expected to profit

from the transaction by sharing in the drugs.

     The fact that an explicit agreement to share the drugs did

not exist prior to appellant's making the purchase from the

third party on the detectives' behalf is not dispositive.   The

key under Code § 18.2-248(D) is the intent with which appellant

acted, and appellant admitted that he hoped to profit by smoking

a share of the drugs with the undercover officers.   For similar

reasons, appellant's uncertainty over whether the detectives

ultimately would share the cocaine with him also is not

dispositive.

     Not even a scintilla of evidence established that

appellant's possession with intent to distribute constituted an

accommodation.    Thus, the trial court's refusal of the proffered

accommodation instruction was not error, and we affirm

appellant's conviction and sentence.

                                                          Affirmed.




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