                     COURT OF APPEALS OF VIRGINIA


Present: Judges Frank, Agee and Senior Judge Coleman
Argued at Salem, Virginia


PETE WINCHESTER, a/k/a
 MARK ANTHONY WINCHESTER
                                          MEMORANDUM OPINION * BY
v.   Record No. 0942-00-3                  JUDGE G. STEVEN AGEE
                                               MAY 15, 2001
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF PITTSYLVANIA COUNTY
                B. A. Davis, III, Judge Designate

          J. Patterson Rogers, III, for appellant.

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


     In a jury trial in the Circuit Court of Pittsylvania

County, Pete Winchester (Winchester) was convicted of

distribution of cocaine, a second or subsequent offense, in

violation of Virginia Code § 18.2-248.   At trial, Winchester's

motion to strike the evidence as insufficient was denied.

Subsequently, Winchester objected to Jury Instruction No. 6 on

the grounds that the proposed instruction suggested to the jury

that Winchester had fled prosecution.    The court overruled the

objection, and Winchester noted an exception.    Winchester then




     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
renewed his motion to strike, which the court again denied, and

Winchester noted his exception.

     After finding Winchester guilty, the jury recommended a

sentence of ten years incarceration and a fine of $5,000.

Winchester moved that the verdict be set aside as contrary to

the law and the evidence.    The trial court denied that motion

and on April 25, 2000 sentenced Winchester to a term of

incarceration for ten years.

     Winchester now appeals, arguing that the trial court erred

in giving Jury Instruction No. 6, which he complains was overly

suggestive, and erred in finding the evidence sufficient to

support his conviction.   We disagree and affirm the conviction.

                            I.   BACKGROUND

     In December 1996, Larry Cunningham (Cunningham) was working

as a confidential informant with the Pittsylvania County Sheriff's

Office.   On December 5, 1996, Cunningham, at the request of

Investigators J. Todd Barrett and Jimmy Lipscomb of the Sheriff's

Office, met Investigator Barrett in the Westover Drive area.     The

investigators wanted Cunningham to purchase crack cocaine in a

particular area and provided Cunningham with $50 for a buy.

     Cunningham drove his own vehicle, outfitted with a

surveillance camera and audio monitor, to the designated area and

asked, "Did anybody have anything?"      Some people milling around

told him to drive across Route 656.      As Cunningham drove across

Route 656, he stopped at a house where Winchester and another male

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were refueling a car.    Cunningham asked if they had anything, and

someone replied "No."    Cunningham then pulled away and turned his

vehicle around as a second car pulled up to the house.    As

Cunningham passed the house, the second vehicle followed him and

flagged him down.

        Winchester was now sitting in the back of the second vehicle,

leaning over the seat talking to those in the front seat.

Winchester handed a pill bottle to Curtis Tinsley, a front seat

passenger, who then pulled a mask over his face as did Winchester.

The masked Tinsley then came to the window of Cunningham's vehicle

and poured crack cocaine into Cunningham's hand from the pill

bottle Winchester had given him.    Cunningham paid Tinsley $50.

Cunningham returned to Investigator Barrett with no money and four

rocks of cocaine.

        On January 15, 1997 the Grand Jury sitting for the Circuit

Court of Pittsylvania County returned an indictment against Pete

Winchester, charging him with violation of Code § 18.2-248.

Subsequent to the indictment, Investigator Vic Ingram searched for

Winchester through September, 1997 when he was in Winchester's

neighborhood, but to no avail.    He contacted Winchester's mother

several times before she moved to North Carolina at the end of

1997.    Investigator Ingram made the mother aware that Winchester

was wanted on the indictment although Winchester was also sought

on other violations.



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     Winchester was arrested on April 8, 1999.       He testified that

he left the Commonwealth prior to the indictment and was not aware

he was wanted under the indictment.       Winchester further claimed

that he was not in the Commonwealth at the time of the drug sale.

Winchester testified he left Virginia for North Carolina prior to

the offense because he had "messed up" on probation and did not

want to return to prison for failing to report to his probation

officer.

                            II.    ANALYSIS

                     A.   Jury Instruction No. 6

     At trial, the evidence showed that on January 15, 1997,

Winchester was indicted for cocaine distribution, a second or

subsequent offense having occurred on December 5, 1996.      The court

took judicial notice of the fact that a capias was issued for

Winchester on January 15, 1997, and that he was not arrested until

April 8, 1999.   Investigator Vic Ingram looked for Winchester

"often" during 1997, but was unable to locate him.      Ingram

contacted Winchester's mother several times looking for him.

Winchester did not object to this evidence.

     Winchester admitted leaving Virginia, but claimed he left for

North Carolina before the date of the offense because he had

"messed up" on probation.   Winchester stated that he went to North

Carolina so that he could avoid returning to the penitentiary for

failing to report to his probation officer.



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     At the close of the evidence, Winchester objected to Jury

Instruction No. 6, which stated:

            THE COURT INSTRUCTS THE JURY THAT, if a
            person flees to avoid prosecution or flees to
            avoid detection, apprehension or arrest, this
            creates no presumption that the person is
            guilty of having committed the crime.
            However, it is a circumstance which you may
            consider along with the other evidence.

     Winchester objected to the instruction as misleading and

suggestive to the jury that he fled from the prosecution of the

drug offense.   The trial court allowed the jury instruction and in

this appeal Winchester avers the allowance was erroneous due to

the factual disparities presented (i.e., he testified that he fled

the jurisdiction for reasons unrelated to the drug charge, he fled

prior to the alleged crime, and he was unaware of the drug charge

pending against him).   Winchester argues that it is error to give

an instruction which, though a technical statement of the law in

the abstract, is not supported by sufficient evidence in the case.

     "A reviewing court's responsibility in reviewing jury

instructions is 'to see that the law has been clearly stated and

that the instructions cover all issues which the evidence fairly

raises.'"   Darnell v. Commonwealth, 6 Va. App. 485, 488, 370

S.E.2d 717, 719 (1988) (citation omitted).    An instruction should

be given if supported by credible evidence.   See McClung v.

Commonwealth, 215 Va. 654, 657, 212 S.E.2d 290, 293 (1975).

     Instruction No. 6 states that if a person flees to avoid

prosecution, that fact creates no presumption that the person is

                                - 5 -
guilty of committing the crime, but is only a circumstance that

can be considered along with the other evidence.      Cunningham's

testimony that Winchester was involved in the drug sale, Detective

Ingram's testimony that he attempted to locate and serve the

indictment on Winchester to no avail, and Winchester's own

testimony of flight supply credible evidence to support the idea

of flight after the offense and the need for the instruction

should the jury have believed that flight from the prosecution of

the drug offense occurred.    We, therefore, cannot say the trial

court erred by giving this instruction.

                   B.   Sufficiency of the Evidence

       "On appeal, 'we review the evidence in the light most

favorable to the Commonwealth, granting to it all reasonable

inferences fairly deducible therefrom.'"    Archer v. Commonwealth,

26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997) (citation omitted).

"We will affirm the judgment unless it appears from the evidence

that the judgment is plainly wrong or without evidence to support

it."   Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d

534, 537 (1975).

       So viewed, the evidence proved that on December 5, 1996,

Cunningham, a confidential informant, was used by investigators to

set up crack cocaine purchases.    Cunningham employed audio and

video recording devices in this endeavor.    After several attempts

by Cunningham to make a purchase, a vehicle containing Winchester,

Tinsley and a third man flagged down Cunningham.      Cunningham saw

                                - 6 -
Winchester give Tinsley a pill bottle before Winchester and

Tinsley masked themselves.   Tinsley walked over to Cunningham and

poured crack cocaine into Cunningham's hand from the pill bottle

Cunningham had seen Winchester pass to Tinsley.   Cunningham gave

Tinsley $50.

     The Commonwealth's evidence was not incompetent, was not

inherently incredible, and was sufficient to prove beyond a

reasonable doubt that Winchester committed the charged offense.

The evidence is not made insufficient by Winchester's testimony

that on December 5, 1996, he "was in North Carolina.   I don't know

where, but I won't in Virginia."   The fact finder, the jury,

believed the Commonwealth's evidence, and rejected Winchester's

testimony.    "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).

     For these reasons we find no error, and the conviction is

affirmed.

                                                          Affirmed.




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