                   COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Coleman and Senior Judge Cole
Argued at Richmond, Virginia


GERALDINE B. MONDIDO
                                          MEMORANDUM OPINION * BY
v.        Record No. 0035-97-2           JUDGE SAM W. COLEMAN III
                                               JULY 28, 1998
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
                     Timothy J. Hauler, Judge
          William T. Fitzhugh (Beddow, Marley &
          Associates, on brief), for appellant.

          Richard B. Smith, Assistant Attorney General
          (Richard Cullen, Attorney General, on brief),
          for appellee.



     Geraldine B. Mondido was convicted by a jury for

distributing a controlled substance in violation of Code

§ 18.2-248.   The sole issue on appeal is whether the trial court

erred in refusing to instruct the jury that it could find Mondido

guilty of an accommodation distribution under Code § 18.2-248(D).

 Because the evidence did not support an instruction on

accommodation distribution, we affirm the conviction.
                            BACKGROUND

     Mondido was indicted by a multijurisdictional grand jury for

distributing cocaine and conspiring to distribute cocaine.   The

material facts relating to the charges were substantially

contested at trial and are summarized as follows.

     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
     The Commonwealth's evidence established that City of

Petersburg Police Officer Stacy Lucas, together with Chesterfield

County Police, were investigating Mondido for suspected drug

trafficking.   Lucas testified that she and an informant, Gertrude

Gilmore, who claimed to be a friend of Mondido's son Jesse, drove

to Mondido's residence.   Lucas told Mondido that she wanted some

crack cocaine and asked Mondido if she had any drugs.   Mondido

replied she did not but could take Lucas to get some.   Mondido

got in the van to accompany Lucas and Gilmore.
     According to Lucas, as they were leaving the driveway,

Mondido told Lucas to stop because she had spotted her other son,

Anthony Delacruz, who, she noted, "might have something."    Lucas

testified that Mondido called out to Delacruz and told him that

Lucas and Gilmore "were looking."   Lucas told Delacruz that she

wanted to buy "a $20 piece," whereupon Delacruz walked behind

some nearby trailers and returned with a twenty-dollar piece of

crack cocaine.   Lucas testified that Mondido took the cocaine

from Delacruz and handed it to her and that she handed Mondido a

twenty-dollar bill which Mondido in turn gave to Delacruz.     Lucas

further testified that Mondido then asked Delacruz, "Where is

mine?"   Delacruz replied he had sold the last of the drugs.

     Testifying in Mondido's defense, and conceding that he sold

cocaine to Lucas, Delacruz testified that Mondido did not

initiate or participate in the drug transaction.   According to

Delacruz, he was playing football at a neighbor's house when he




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saw Mondido standing beside the minivan and talking with Lucas

and Gilmore.   He testified that he approached the van and that

Lucas "asked me did I have a 20, and I told her to hold on, . . .

and I left and came back with the [cocaine]."    He claimed that he

gave the cocaine directly to Lucas and that Lucas handed him a

twenty-dollar bill in return.   Delacruz stated that Mondido never

touched the cocaine or the money and that she took no part in the

transaction.   When asked whether Mondido said anything during the

transaction, Delacruz testified that she only asked him "what

[he] was doing" when she saw him giving Lucas the cocaine.
     Mondido testified that she was sitting in her house when the

van pulled into her driveway and sounded its horn several times.

Mondido went to the van and asked what Lucas and Gilmore wanted.

Gilmore and Lucas asked when Jesse would be home.    Mondido

stated that, without any beckoning on her part, Delacruz

approached the van and began talking to Lucas.   She testified

that Lucas asked Delacruz for crack cocaine and that Delacruz

retrieved some drugs by some nearby trailers.    Mondido testified

that she witnessed the transaction between Lucas and her son, but

took no part in it and did not handle the money or the drugs.

Mondido stated that she asked Delacruz "what the hell [he was]

doing" before he took the money from Lucas and ran away.

     At the conclusion of the evidence, the trial court granted

Mondido's motion to strike the conspiracy charge and denied the

motion to strike the charge of distributing cocaine.   The trial




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court rejected an instruction proffered by Mondido that would

have allowed the jury to find her guilty of an accommodation

distribution.

                             ANALYSIS

     When reviewing a trial court's denial of a jury instruction,

this Court must "see that the law has been clearly stated and

that the instructions cover all issues which the evidence fairly

raises."   Hudspith v. Commonwealth, 17 Va. App. 136, 137, 435

S.E.2d 588, 589 (1993) (citations omitted).    "[T]he trial court

should instruct the jury only on those theories of the case which

find support in the evidence."     Morse v. Commonwealth, 17 Va.

App. 627, 632-33, 440 S.E.2d 145, 149 (1994). Further,
          [w]hen instructing the jury, the trial judge
          must be mindful that:

                "[t]he jury is not required to
                accept, in toto, either the theory
                of the Commonwealth or that of an
                accused. They have the right to
                reject that part of the evidence
                believed by them to be untrue and
                to accept that found by them to be
                true. In so doing, they have broad
                discretion in applying the law to
                the facts and in fixing the degree
                of guilt, if any, of a person
                charged with a crime."

Delacruz v. Commonwealth, 11 Va. App. 335, 338-39, 398 S.E.2d

103, 105 (1990) (quoting Belton v. Commonwealth, 200 Va. 5, 9,

104 S.E.2d 1, 4 (1958)); see Painter v. Commonwealth, 210 Va.

360, 367, 171 S.E.2d 166, 169 (1969).    Applying these principles,

we find that the evidence, viewed in the light most favorable to



                                 - 4 -
the defendant, see Turner v. Commonwealth, 23 Va. App. 270, 275,

476 S.E.2d 504, 507 (1996), does not support granting an

instruction on accommodation distribution.

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

where one convicted for distributing illegal drugs is found "not

to be a dealer in drugs, but one 'motivated by a desire to

accommodate a friend without any intent to profit or to induce or

to encourage the use of drugs.'"     Barlow v. Commonwealth, 26 Va.

App. 421, 430, 491 S.E.2d 901, 905 (1998) (quoting Stillwell v.
Commonwealth, 219 Va. 214, 219-20, 247 S.E.2d 360, 364 (1978)).

A defendant has the burden of proving the existence of an

accommodation distribution by a preponderance of the evidence.

Heacock v. Commonwealth, 228 Va. 397, 406, 323 S.E.2d 90, 95

(1984).

     Mondido contends the jury could have believed that she

agreed to find a drug supplier for Lucas and engaged Delacruz to

sell Lucas drugs, but, at the same time, could have disbelieved

Lucas' testimony that Mondido handled the drugs and the money and

asked Delacruz:   "Where is mine?"   In this regard, Mondido

asserts, the jury could have found that Mondido aided and abetted

Delacruz's drug sale but did so solely as an accommodation to

Lucas without the intent to profit from the transaction or to

induce Lucas to use or become addicted to cocaine.

     The record is devoid of any evidence, which if believed,

would have supported an accommodation instruction.    According to



                               - 5 -
Mondido's evidence, Mondido was merely present when Delacruz sold

drugs to Lucas, and she neither participated nor countenanced the

drug sale.   Under the Commonwealth's version of the facts,

Mondido arranged the drug sale, actively participated in the

transaction and expected drugs in return for her participation.

Mondido contends that Delacruz's testimony contradicts that of

Lucas concerning Mondido's handling the drugs and money and

asking "Where is mine?"   Thus, Mondido argues that by

disbelieving those aspects of Lucas' testimony, the jury could

conclude that she was only assisting Lucas as an accommodation

and that she neither expected to profit from the sale nor did she

intend to induce Lucas to become addicted to or dependent upon

drugs.
     Her argument lacks merit.    Although the jury might have

disregarded all or any portion of Lucas' testimony, the remainder

of the evidence does not support a finding by a preponderance of

the evidence that Mondido arranged the sale as an accommodation

to Lucas.    See Guss v. Commonwealth, 217 Va. 13, 15, 225 S.E.2d

196, 197 (1976) (per curiam).    Mondido was "required to produce

some evidence which satisfies the trier of the facts that his

distribution was for accommodation."     Stillwell, 219 Va. at 225,

247 S.E.2d at 367.   No evidence in the record tends to prove that

Mondido arranged for a drug sale and in doing so was motivated

solely by a desire to accommodate a friend.    Not only is the

record devoid of evidence that Mondido was arranging a drug sale




                                 - 6 -
solely as an accommodation for a friend, accepting that she

arranged the sale, the evidence shows that she arranged a sale

with her son who lived at home with her.   Because of the absence

of evidence that Mondido was accommodating Lucas, and because the

evidence shows that Mondido had the self interest of assisting

her son who resided with her to sell drugs, the evidence did not

support giving an accommodation instruction.

     Mondido's reliance upon Gardner v. Commonwealth, 217 Va. 5,

225 S.E.2d 354 (1976) (per curiam), is misplaced.    In Gardner,

two undercover police officers picked up the defendant, who was

hitchhiking, and asked him to sell them marijuana.   Gardner told

them he had no drugs but might be able to locate some if he could

make a phone call.   Gardner introduced the officers to an

acquaintance who sold LSD to one of the undercover officers.     At

trial, Gardner testified that he did not actively participate in

the drug sale, that he handled neither the drugs nor the money,

and that he never received, nor expected to receive, any

consideration for arranging the meeting with the drug supplier.
Id. at 6, 225 S.E.2d at 356.   The Virginia Supreme Court held

that Gardner's evidence, "if believed, was sufficient to show

that he had no intent to share in the sale proceeds or otherwise

to profit from the transaction, or to induce [the officers] to

use or become addicted to or dependent upon" drugs, and,

therefore, warranted an instruction on accommodation distribution

under Code § 18.2-248(D).   Id. at 7, 225 S.E.2d at 356.




                               - 7 -
     Unlike the defendant in Gardner, who testified that he aided

in the sale of the drugs only as an accommodation, there is no

evidence in this record that, "if believed," could have

established that Mondido only intended to accommodate Lucas by

helping her locate a drug source.   Accepting Mondido's argument,

even if the fact finder chose to disbelieve the most

incriminating aspects of Lucas' testimony, the evidence proved

that Mondido did not solely intend to accommodate Lucas in

locating a drug seller because she assisted her son in finding a

person to purchase his drugs "for profit."   Accordingly, the

trial court did not err in refusing to grant an instruction on

accommodation distribution.   Thus, we affirm the conviction.
                                                          Affirmed.




                               - 8 -
Benton, J., dissenting.


     Code § 18.2-248.1(a)(3) provides a reduced penalty where the

distribution of a controlled substance is made "only as an

accommodation to another individual . . . and not with the 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."    Because the evidence supported

Geraldine B. Mondido's request for an accommodation instruction,

I dissent.
     "[T]he appropriate standard of review requires that we view

the evidence with respect to the refused instruction in the light

most favorable" to Mondido.    Boone v. Commonwealth, 14 Va. App.

130, 131, 415 S.E.2d 250, 251 (1992).    Furthermore, the principle

is well settled that if "more than a mere scintilla" of "credible

evidence in the record supports a proffered instruction . . . ,

failure to give the instruction is reversible error."      Id.   See
also Miller v. Commonwealth, 5 Va. App. 22, 24, 359 S.E.2d 841,

842 (1987).

     In refusing to grant the accommodation instruction, the

trial judge stated the following:
             The problem I've got with this
          accommodation theory in this case . . . is
          [Mondido's] testimony she didn't do anything.
          . . .

                She testifies she didn't distribute
             anything to the officer, she just basically
             brought the parties together. That's the
             problem I've got with the accommodation. If



                                - 9 -
          she were to have taken the stand and said,
          yeah, you know, they came for the drugs and I
          knew the boy had some and I just brought the
          parties together and gave them the drugs, and
          I think he'd get the accommodation. [Your]
          evidence doesn't suggest that. [Your]
          evidence is that [Mondido] did nothing.

           *        *     *      *       *        *         *

             I'm not going to give it because, number
          one, I think the evidence is clear that
          neither . . . Mondido nor her son knew either
          . . . the . . . informant or the undercover
          officer.

             Her son testified he didn't know these
          people and never seen them before. [Mondido]
          testified she didn't know who these people
          were. . . . I'm not going to give an
          accommodation instruction in this case. I
          don't believe it's appropriate based upon the
          testimony of [Mondido] and based on the
          testimony of her son. We have either got
          [Mondido] being merely present or arrested as
          a principal in the first or second degree to
          a distribution.

             It's a factual question for the jury. If
          she was merely present, she's not guilty of
          anything. Or they can find her to be a
          principal.


(Emphasis added).   The trial judge's reasoning is clearly flawed.

     In determining whether the evidence is sufficient to support

an accommodation instruction, Mondido was entitled to rely upon

any reasonable inference or proof that flows from the evidence,

including the Commonwealth's evidence.       See Brown v.

Commonwealth, 215 Va. 753, 755, 213 S.E.2d 764, 766 (1975).

Stated differently, "[i]f there is evidence in the record to

support the defendant's theory of defense, the trial judge may

not refuse to grant a proper, proffered instruction."           Delacruz



                              - 10 -
v. Commonwealth, 11 Va. App. 335, 338, 398 S.E.2d 103, 105

(1990).   Only through proper and complete instruction can the

trial judge give the jury "a legal guide" to make its

determination.    Painter v. Commonwealth, 210 Va. 360, 367, 171

S.E.2d 166, 170 (1969).   Therefore, when the trial judge

instructs the jury, the trial judge must be mindful of the

following principles:
          The jury is not required to accept, in toto,
          either the theory of the Commonwealth or that
          of an accused. They have the right to reject
          that part of the evidence believed by them to
          be untrue and to accept that found by them to
          be true. In so doing, they have broad
          discretion in applying the law to the facts
          and in fixing the degree of guilt, if any, of
          a person charged with a crime.

Belton v. Commonwealth, 200 Va. 5, 9, 104 S.E.2d 1, 4 (1958).

     In this case, under the Commonwealth's version of the facts,

the undercover officer and informant knew Mondido's son and

previously had met Mondido.   The officer and the informant had

previously visited Mondido's residence on at least one other

occasion to deliver a birthday card to Mondido's son.   According

to the officer's testimony, when the officer and the informant

went to Mondido's residence on this occasion and asked Mondido

for cocaine, Mondido said she did not have any.   Mondido got into

the officer's vehicle to take the officer and the informant to

find cocaine.    As they were leaving the driveway, Mondido spotted

her other son, Delacruz, and said he "might have something."

From this evidence, the jury could reasonably infer that Mondido



                               - 11 -
assisted the officer and informant only as an accommodation to

find cocaine.

      Mondido told her son, Delacruz, that the women "were

looking."   The officer asked Delacruz for a "$20 piece" which

Delacruz produced.   According to the officer, Delacruz handed the

cocaine to Mondido who passed it to the officer.   The officer

handed Mondido a twenty-dollar bill, and Mondido passed it to

Delacruz.   Delacruz admitted he made the sale and received the

proceeds from the sale.   This evidence clearly was sufficient to

support an accommodation instruction.
      The jury was not required to believe Delacruz's testimony

that Mondido did not participate in the transaction or Mondido's

testimony that she witnessed the transaction but took no part in

it.   If the jury believed that Mondido was escorting the officer

and informant to another person who would sell cocaine to the

officer and that Mondido did not receive any consideration for

this transaction, the jury could have found that Mondido was

guilty of distribution but that she did so only as an

accommodation to the officer.

      The majority asserts that under the Commonwealth's version

of the facts, Mondido's question, "Where is mine?," indicates

that Mondido must have expected drugs in return for her

participation in the transaction.    This assertion is faulty for

two reasons.    First, in making that assertion the majority

disregards the standard of review, that is, the evidence must be




                                - 12 -
regarded in the light most favorable to Mondido.   The jury could

have believed the Commonwealth's evidence that Mondido agreed to

find a cocaine supplier for the officer, told the officer that

Delacruz might have cocaine, and indicated to Delacruz that the

officer was looking for cocaine.   Furthermore, based on evidence

in the record to the contrary, the jury could have disbelieved

the officer's testimony that Mondido asked Delacruz, "Where is

mine?"
     Second, even if the jury believed Mondido asked the

question, "Where is mine?," the question does not necessarily

indicate that Mondido expected drugs in return for introducing

the undercover officer to Delacruz.    Significantly, Mondido did

not address her question to the officer or the informant and did

not seek payment from them.   From the evidence, it is just as

likely that Delacruz had promised to deliver cocaine to Mondido

for her own personal use separate from the transaction at hand.

In any event, however, the evidence clearly did not prove that

Mondido received anything from Delacruz.

     It is well established that "where there is evidence as to

the purpose of the distribution that is susceptible of different

interpretations," it is "peculiarly within the province of the

jury to determine from the evidence whether the distribution

. . . was made for profit or merely [as an] accommodation."

Brown, 215 Va. at 754, 755, 213 S.E.2d at 766, 766.    In Gardner
v. Commonwealth, 217 Va. 5, 225 S.E.2d 354 (1976), the




                              - 13 -
Commonwealth's evidence proved that the accused met the

undercover agent and informant while the defendant was

hitchhiking.     Id. at 7-8, 225 S.E.2d at 356.   Although the

accused had not previously known either the agent or the

informant, he guided them to a nightclub where another person

supplied them drugs.    The accused never received any purchase

money for the drugs and did not have any drugs in his possession

when the purchase was made.     See id. at 6, 225 S.E.2d at 355.

The Supreme Court held that the trial judge committed reversible

error in failing to instruct the jury on the accused's

accommodation defense because the record contained evidence

which, if believed, would support the defense.      See id. at 8, 225

S.E.2d at 356.    By refusing to grant the instruction, the trial

judge in Gardner, as in this case, essentially "treat[ed] the

evidence of accommodation as evidence only of aiding and abetting

in the distribution for profit" and impermissibly restricted the

jury's findings.    217 Va. at 8, 225 S.E.2d at 356.

     In view of the facts in the record, the jury could have

found that Mondido did not receive or expect any consideration

from the transaction.    All of the witnesses testified that

Delacruz had the cocaine and sold it.    All of the witnesses

testified that Delacruz left with money in his hand.     Mondido did

not supply the cocaine, and Mondido did not receive any money

from the transaction.    Under the Commonwealth's version of the

facts, the jury could have concluded that Mondido merely passed



                                - 14 -
both the cocaine and the money between Delacruz and the

undercover officer as an accommodation.

     Here, as in Gardner, evidence exists from which the jury

could conclude that the sale was consummated only by a person

other than the accused and that the accused neither received nor

expected to receive the purchase money.     See 217 Va. at 7-8, 225

S.E.2d at 356.   Furthermore, the facts in Gardner suggest that

the trial judge also erroneously ruled that Mondido could not

rely upon the accommodation defense because she testified that

she did not know the agent.     See 217 Va. at 6, 225 S.E.2d at 355

(the accused first met the officer while hitchhiking and then

made an offer to assist).    Thus, Mondido "was entitled to an

instruction based upon evidence which, if believed, was

sufficient to show that [she] had no intent to share in the sale

proceeds or otherwise profit from the transaction, or to induce

[the officer and informant] to use or become addicted to or

dependent upon" the drug.     Id. at 7, 225 S.E.2d at 356.

     Because the evidence supported an accommodation instruction,

I would hold that the trial judge erred in failing to grant the

accommodation instruction.    I would reverse the conviction and

remand the case for a new trial.




                                - 15 -
