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Porter v. Commonwealth

Court of Appeals of Virginia

May 3, 2016



Carlos A. Hutcherson (Hutcherson Law, PLC, on briefs), for appellant.

David M. Uberman, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Present: Judges Petty, O'Brien and AtLee Argued at Lexington, Virginia



Cynthia Leatrice Porter was convicted by a jury of distribution of heroin in violation of Code § 18.2-248 and possession of heroin in violation of Code § 18.2-250. On appeal, Porter argues that the trial court erred in denying her request for a jury instruction on distribution for accommodation. For the following reason, we affirm Porter's conviction.

I. Background

"On appeal, we review the trial court's 'broad discretion in giving or denying instructions requested' for an abuse of discretion." Williams v. Commonwealth, 64 Va.App. 240, 246, 767 S.E.2d 252, 255 (2015) (quoting Gaines v. Commonwealth, 39 Va.App. 562, 568, 574 S.E.2d 775, 778 (2003) (en banc)). "When reviewing a trial court's refusal to give a proffered jury instruction, we view the evidence in the light most favorable to the proponent of the instruction." Lawlor v. Commonwealth, 285 Va. 187, 228-29, 738 S.E.2d 847, 871 (2013) (quoting Commonwealth v. Vaughn, 263 Va. 31, 33, 557 S.E.2d 220, 221 (2002)). "Although a defendant 'is entitled to an instruction upon his theory of the case, ' this rule can be invoked '[o]nly when such instruction is supported by some appreciable evidence.'" Williams, 64 Va.App. at 246, 767 S.E.2d at 255 (alteration in original) (quoting Harris v. Commonwealth, 134 Va. 688, 695, 114 S.E. 597, 600 (1922)). "More than a scintilla of evidence must be present to support an instruction." Eaton v. Commonwealth, 240 Va. 236, 255, 397 S.E.2d 385, 397 (1990)). Thus, a reviewing court's "sole 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." Cooper v. Commonwealth, 277 Va. 377, 381, 673 S.E.2d 185, 187 (2009) (alteration in original) (quoting Molina v. Commonwealth, 272 Va. 666, 671, 636 S.E.2d 470, 473 (2006)).

The facts are not in dispute. On November 23, 2013, Brandon Crews telephoned Porter to ask if she knew anywhere to get heroin. When Crews picked up Porter at her apartment, he gave her $60 in cash. Porter told Crews that $60 would only purchase two bags of heroin. Crews drove Porter to the parking lot of a local restaurant, where Porter purchased ten bags of heroin for $175 from Marcie Wright. Wright was under surveillance by law enforcement officers, who had previously used confidential informants to make several purchases of heroin from Wright for $20 per bag. When officers subsequently stopped Crews's car, they recovered two bags of heroin from Crews, two bags of heroin from Porter's coat pocket, and six bags of heroin from Porter's cigarette pack.

II. Analysis

A jury convicted Porter of distribution of heroin, and she does not challenge the jury's guilty finding. She argues, however, that the trial court erred in not giving a distribution-for-accommodation instruction to the jury. We disagree.

Code § 18.2-248 makes it unlawful for any person to sell or distribute a controlled substance.

However, the General Assembly was cognizant of the fact that in some instances a sale or distribution of a drug would be made, not by a dealer in drugs, a pusher or one who was normally engaged in the drug traffic, but by an individual citizen who was motivated by a desire to accommodate a friend, without any intent to profit or to induce or to encourage the use of drugs.

Stillwell v. Commonwealth, 219 Va. 214, 219, 247 S.E.2d 360, 364 (1978). In that case, the Code permits a reduced penalty. However, the defense is available only where a person does not act "with intent to profit thereby from any consideration received or expected or to induce the recipient or intended recipient of the controlled substance to use or become addicted to or dependent upon such controlled substance." Code § 18.2-248(D). "The 'profit' contemplated by the statute is 'any consideration received or expected.'" F. P. Heacock v. Commonwealth, 228 Va. 397, 407, 323 S.E.2d 90, 96 (1984). The Supreme Court has interpreted the term "profit" to mean "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 ...

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