Bellfield v. Com., 1574-88-4

• Decision Date: 13 November 1990
• Docket Number: No. 1574-88-4,1574-88-4
• Citation: 11 Va.App. 310,398 S.E.2d 90
• Parties: Donald F. BELLFIELD v. COMMONWEALTH of Virginia. Record
• Court: Virginia Court of Appeals

Page 90

398 S.E.2d 90

11 Va.App. 310

Donald F. BELLFIELD v. COMMONWEALTH of Virginia.

Record No. 1574-88-4.

Court of Appeals of Virginia.

Nov. 13, 1990.

Mario Bezzini, Fairfax, for appellant.

Thomas C. Daniel, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellee.

Present: KEENAN, BENTON and MOON, JJ.

KEENAN, Judge.

Donald Bellfield appeals his conviction by a jury on one count of possession of cocaine with the intent to distribute. On appeal, he argues that the trial court erred by refusing to instruct the jury on the elements of simple possession, a lesser included offense. We agree and accordingly, we reverse Bellfield's conviction. ¹

The case before us involved a series of events which occurred on June 3, 1988 at or near a townhouse located at 7956 Andrews Court in Fairfax County, Virginia. Officer Black testified that he was assigned to conduct a surveillance of this address in the early evening of June 3, prior to execution of a search warrant for the residence. Officer Black arrived at the residence at approximately 6:30 p.m. He parked his vehicle in front of the townhouse and remained inside. Shortly thereafter, he observed Bellfield exit the townhouse.

Officer Black then observed Bellfield for the next fifteen to twenty minutes. At first Bellfield just stood around in the street. However, when a car approached, Black observed Bellfield walk up to it and lean inside for up to a minute. After the car drove off, Black watched as Bellfield returned to the corner. Bellfield continued to stand around until another car came by. Bellfield repeated this behavior with four or five cars. Black testified, however, that he never observed Bellfield either reach into or take money back from the cars.

Bellfield then approached Black's vehicle. Although Black began to drive off, Bellfield opened the passenger door and leaned in. Bellfield asked Black: "Are you looking?" Black said no. He asked Bellfield what he had and Bellfield replied: "Twenty-five." Bellfield then walked back to the townhouse.

That evening, Officer Kelly executed a search warrant at the townhouse at 10:45 p.m. Inside the house, Bellfield was taken into custody as he moved hurriedly toward the back of the house. Kelly approached Bellfield and noticed a small glassine packet protruding from his pocket. Kelly seized the packet which contained two $25 rocks of cocaine. A second packet containing similar size rocks of cocaine was found on the floor within twelve inches of where Bellfield was standing. Kelly indicated that Bellfield appeared to be under the influence of cocaine at the time he was taken into custody.

At trial, the court rejected a proposed jury instruction offered by Bellfield regarding simple possession of cocaine. The court stated: "I believe that the Commonwealth has either proved possession with intent or it has not proved, or the defendant should not be guilty." The defendant was convicted of possession with the intent to distribute.

On appeal, Bellfield argues that simple possession is a lesser included offense of possession with the intent to distribute. Thus, Bellfield claims that under Virginia law the trial court was required to instruct the jury on this lesser offense so long as there was evidence tending to prove the lesser offense. The Commonwealth responds that pursuant to Sansone v. United States, 380 U.S. 343, 85 S.Ct. 1004, 13 L.Ed.2d 882 (1965), an instruction regarding a lesser offense is not required unless a finding of guilty regarding the greater charge requires the jury to find a disputed factual element not at issue for conviction of the lesser charge. The Commonwealth claims that since there was no factual dispute as to Bellfield's intent, an instruction on simple possession was not required.

In addressing when an instruction on a lesser offense should be given, the Supreme Court of Virginia repeatedly has held that where there is any credible evidence supporting a proffered instruction, failure to give the instruction is reversible error. See, e.g., Taylor v. Commonwealth, 186 Va. 587, 591, 43 S.E.2d 906, 908 (1947); McClung v. Commonwealth, 215 Va. 654, 657, 212 S.E.2d 290, 293 (1975). In the case before us, Bellfield was apprehended at 10:45 p.m. At that time he appeared to Officer Kelly to be under the influence of cocaine. Four $25 rocks, totalling less than a gram of cocaine, were found on or about his person. Officer Kelly testified that he personally had no evidence to show that Bellfield was in the townhouse trying to sell drugs that evening. We find that credible evidence was presented from which a jury could have concluded that Bellfield merely possessed the cocaine for his personal use, not with the intent to distribute it.

We acknowledge that the jury also could have concluded that Bellfield did possess the cocaine with an intent to distribute it. The evidence pertaining to Bellfield's conduct earlier in the evening and Officer Black's conversation with Bellfield would permit a reasonable inference that Bellfield was attempting to distribute cocaine. This conclusion is buttressed by Black's testimony that, based on his experience, he specifically understood Bellfield's question to him to be an inquiry into whether Black wanted to buy a quarter gram of cocaine.

However, when considering on appeal whether an instruction was improperly refused, "[i]t is immaterial that the jury could have reached contrary conclusions." McClung, 215 Va. at 657, 212 S.E.2d at 293; see Barrett v. Commonwealth, 231 Va. 102, 107, 341 S.E.2d 190, 193 (1986). "[I]f there is evidence tending to support the lesser offense, a trial court errs in refusing an instruction thereon." Barrett, 231 Va. at 107, 341 S.E.2d at 193. Because we find that there was evidence tending to support an instruction on simple possession, the trial court's failure to so instruct the jury was reversible error.

We are not persuaded by the Commonwealth's reliance on Sansone. In Sansone, the Supreme Court stated:

Thu...