                  COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Fitzpatrick, Judges Elder and Bray
Argued at Chesapeake, Virginia


KELVIN WATFORD
                                           MEMORANDUM OPINION * BY
v.   Record No. 0569-99-1                   JUDGE RICHARD S. BRAY
                                                MARCH 7, 2000
COMMONWEALTH OF VIRGINIA


       FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
                  H. Thomas Padrick, Jr., Judge

          Sarah A. Mansberger, Assistant Public
          Defender, for appellant.

          H. Elizabeth Shaffer, Assistant Attorney
          General (Mark L. Earley, Attorney General, on
          brief), for appellee.


     Kelvin Watford (defendant) was before the trial court on an

indictment alleging possession of cocaine with intent to

distribute and possession of a firearm while in possession of

cocaine with the intent to distribute.   He was convicted by a jury

of the lesser offenses of possession of cocaine and related

possession of a firearm.    On appeal, he complains that the trial

court erroneously refused to instruct the jury on accommodation

possession of cocaine with intent to distribute.    Finding any

error harmless, we affirm the convictions.




     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
     The parties are fully conversant with the record, and this

memorandum opinion recites only those facts necessary to a

disposition of the appeal.

                                 I.

     Virginia Beach Detectives Richard Brereton and Linda Kuehn,

while assigned to the "Special Investigative Division, narcotics

unit," were "conducting surveillance" of a local hotel.   For

several hours on two successive days, they observed numerous

persons "traffic from [rooms] 36 and 40 and 35 . . . to each

other, a lot of traffic, vehicles pulling up . . . people walking

in, staying a short period of time and then leaving."   At

approximately midnight on the second evening, the detectives

decided to undertake a "knock and talk" investigation at each of

the three rooms.

     Defendant responded to the knock at Room 35 and, as the door

opened, Brereton noticed defendant place a baggie of suspected

marijuana into his pocket.   Defendant was immediately arrested,

and a search of his person revealed the marijuana, seven baggies

of crack cocaine, a loaded Titan .25 automatic pistol and $156.

During a related "protective sweep" of the area, two individuals

were found in the bathroom, together with a "single rock" of crack

cocaine, packaged like the drugs discovered on defendant, and a

smoking device.

     Defendant testified that his mother had "dropped [him] off"

at the hotel to meet James Rebley and Allen Boone and purchase

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"some dope" from "this other guy."      Defendant also had arranged to

buy a "gun" from Rebley.   Rebley, Boone and Todd Jetta were

present in Room 35 when defendant arrived, but Rebley "left"

shortly thereafter.   The "other guy" had "checked out," but

Boone's nephew, "Little Charles," appeared from another room and

agreed to sell defendant, Jetta and Boone "eight twenties" of

crack cocaine in exchange for $78, $38 from Jetta and $40 from

defendant.

     "Little Charles" passed the drugs to defendant, but, before

payment, Jetta and Boone insisted upon sampling one "rock," "to

see how good it was," and entered the bathroom.     Defendant placed

the remaining seven "twenties" in his pocket.     Jetta soon

re-entered the room, reported that the drugs were "all right," and

defendant paid "Little Charles."    "Not-even-five minutes" later,

the police knocked at the door.    Defendant testified that he then

possessed seven "twenties" of cocaine, explaining that three

"belonged to [him]" and two each to Jetta and Boone.     He also

acknowledged possession of the firearm, having "put it in [his]

pocket" before Rebley returned to consummate defendant's purchase

of the weapon.

                                  II.

     On appeal, "we view the evidence with respect to [a] refused

instruction in the light most favorable" to defendant.     Boone v.

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

"[W]here evidence tends to sustain both the prosecution's and the

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defense's theory of the case, the trial judge is required to give

requested instructions covering both theories."   Diffendal v.

Commonwealth, 8 Va. App. 417, 422, 382 S.E.2d 24, 26 (1989); see

Code § 19.2-263.2.   Viewed accordingly, we will assume, without

deciding, that the instant evidence was sufficient to support an

accommodation instruction pursuant to Code § 18.2-248(D).

However, we find that the attendant error was harmless.

     Code § 18.2-248(D) provides, in pertinent part, that

possession of cocaine with intent to distribute "only as an

accommodation to another individual . . . and not with intent to

profit thereby from any consideration received or expected" is a

Class 5 felony.   Thus, although a species of possession with

intent to distribute, see Stillwell v. Commonwealth, 219 Va.

214, 222, 247 S.E.2d 360, 365 (1978), a violation by

accommodation results in a substantially reduced penalty. 1

Similarly, simple possession of cocaine, a lesser-included

offense of possession with intent to distribute, is also a Class

5 felony.   See Code § 18.2-250.

     Here, defendant was indicted for possession with intent to

distribute cocaine but was convicted of the lesser offense,


     1
       A violation of Code § 18.2-248(C) is punishable by
"imprisonment for not less than five nor more than forty years"
and a fine not to exceed $500,000. The penalty is substantially
enhanced upon subsequent convictions. In contrast, a Class 5
felony is punishable by "imprisonment of not less than one year
nor more than ten years" or "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).

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simple possession, a Class 5 felony.    Had the jury been

instructed and acted on the accommodation defense, defendant

would have been convicted of the more serious offense of

possession with intent to distribute, albeit as an

accommodation, also a Class 5 felony.   Thus, clearly, the

offense at conviction was less culpable than accommodation

possession with intent to distribute, with a like penalty.

     It is well established that non-constitutional error "is

harmless '[w]hen it plainly appears from the record and the

evidence given at the trial that the parties have had a fair

trial on the merits and substantial justice has been reached.'"

Lavinder v. Commonwealth, 12 Va. App. 1003, 1005, 407 S.E.2d

910, 911 (1991) (en banc) (quoting Code § 8.01-678).    "An error

does not affect a verdict if a reviewing court can conclude,

without usurping the jury's fact finding function, that, had the

error not occurred, the verdict would have been the same."     Id.

"The effect of an error on a verdict varies widely 'depending

upon the circumstances of the case.'    Each . . . must . . . be

analyzed individually to determine if an error has affected the

verdict."   Id. at 1009, 407 S.E.2d at 913 (citation omitted).

     Under the instant circumstances, the record is clear that the

jury declined to convict defendant of possession with intent to

distribute, as an accommodation or otherwise, deciding, instead,

upon the lesser offense.   Thus, the court's refusal to grant the



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accommodation instruction had no effect on the verdict.

Accordingly, we affirm the convictions.

                                                          Affirmed.




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