Hudspith v. Com.

• Decision Date: 28 September 1993
• Docket Number: No. 0861-92-3,0861-92-3
• Citation: Hudspith v. Com., 435 S.E.2d 588, 17 Va.App. 136 (Va. App. 1993)
• Parties: Diana Stuart HUDSPITH v. COMMONWEALTH of Virginia. Record
• Court: Virginia Court of Appeals

Page 588

435 S.E.2d 588

17 Va.App. 136

Diana Stuart HUDSPITH v. COMMONWEALTH of Virginia.

Record No. 0861-92-3.

Court of Appeals of Virginia.

Sept. 28, 1993.

James C. Turk, Jr., Radford (Stone, Hamrick, Harrison & Turk, P.C., on briefs), for appellant.

Kathleen B. Martin, Asst. Atty. Gen. (Stephen D. Rosenthal, Atty. Gen., on brief), for appellee.

Present: MOON, C.J., and BARROW and KOONTZ, JJ.

KOONTZ, Judge.

Diana Stuart Hudspith (Hudspith) was convicted in a jury trial of distributing more than one-half ounce but not more than five pounds of marijuana in violation of Code § 18.2-248.1. On appeal, Hudspith contends that the trial court erred in refusing to instruct the jury on accommodation distribution. We find that the evidence did not support an accommodation instruction. Accordingly, we affirm Hudspith's conviction.

The pertinent facts are not in dispute. On October 7, 1991, Detective S.W. Ainsworth, an undercover narcotics officer for the Pulaski Police Department, went to the apartment of Doug Leonard to arrange a drug transaction. After Ainsworth's arrival there, Leonard telephoned Huspith, and shortly thereafter she came to the apartment with a plastic bag containing marijuana. Upon her arrival, Hudspith and Leonard went into the kitchen. After twenty to thirty seconds, Leonard motioned for Ainsworth to come into the kitchen and Leonard left Hudspith and Ainsworth alone. Hudspith and Ainsworth were strangers. Ainsworth saw the plastic bag containing marijuana on the kitchen counter. He asked Hudspith if that was all she had. She replied that she only had one ounce and that it was "excellent for home grown pot." Ainsworth weighed the marijuana without objection from Hudspith. She stated that the bag should be slightly more than an ounce and that she "would not slight somebody on a bag." Ainsworth asked Hudspith if she would take less than $120 for the bag, offering to buy more later if the marijuana was "good." Hudspith refused and Ainsworth paid her $120 in cash. Hudspith then immediately left the apartment.

When reviewing jury instructions, an appellate court's responsibility 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) (quoting Swisher v. Swisher, 223 Va. 499, 503, 290 S.E.2d 856, 858 (1982)). The proposed instruction must be supported by "more than a mere scintilla of evidence." Boone v. Commonwealth, 14 Va.App. 130, 132, 415 S.E.2d 250, 251 (1992). The defendant bears 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); Stillwell v. Commonwealth, 219 Va. 214, 225, 247 S.E.2d 360, 367 (1978).

Code § 18.2-248.1(a)(3) provides a reduced penalty where marijuana is given or distributed "only as an accommodation to another individual and not with intent to profit thereby from any consideration received or expected nor to induce the recipient or intended recipient of the marijuana to use or become addicted to or dependent upon such marijuana." "The 'profit' contemplated by the statute is 'any consideration received or expected.' " Heacock, 228 Va. at 407, 323 S.E.2d at 96. The Supreme Court of Virginia has construed the term "profit" "to indicate 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 (1978).

The evidence, when viewed in the light most favorable to Hudspith, fails to support an accommodation instruction. Hudspith admitted that she sold marijuana to Detective Ainsworth, but denied that she had profited from the sale. She testified that she had purchased the marijuana from "a friend" for $120 and had sold it to Ainsworth for $120. This evidence establishes that after Hudspith purchased drugs, she sold them to Ainsworth, a stranger, in exchange for $120 consideration. The fact that Hudspith did not sell the drugs for more than she paid for them is of no consequence. See id. The evidence clearly shows that the distribution was a commercial transaction where consideration was involved. Consequently, the trial court did not err in refusing to instruct the jury on accommodation distribution.

Affirmed.

BARROW, Judge, dissenting.

An accommodation distribution is "a sale or distribution ... made, not by a dealer in drugs ... but...