Opinion
Record No. 0341-93-1
Decided: October 11, 1994
FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE, E. Preston Grissom, Judge
Affirmed.
William P. Robinson, Jr. (Robinson, Madison, Fulton Anderson, on brief), for appellant.
Donald R. Curry, Senior Assistant Attorney General (Stephen D. Rosenthal, Attorney General, on brief), for appellee.
Present: Judges Benton, Willis and Bray
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
Kevin Lavon Freeman was indicted on the charge that he "did unlawfully and feloniously, knowingly and intentionally, sell, give, and distribute . . . cocaine in violation of [Code] Sec. 18.2-248." He was convicted of possession of cocaine with the intent to distribute in violation of Code Sec. 18.2-250. Freeman contends on this appeal that (1) the Commonwealth's failure to produce at trial an informant who participated in a controlled purchase of cocaine was a violation of due process, and (2) the trial judge erred in convicting him of possession with intent to distribute cocaine because it was not a lesser included offense of the charge for which he was tried. We affirm the conviction.
Failure to Produce Informant
In Keener v. Commonwealth, 8 Va. App. 208, 212-15, 380 S.E.2d 21, 23-25 (1989), this Court held that due process required the government to disclose to an accused the identity of an informant who was an active participant in the events that resulted in the accused's arrest and who was not merely a tipster. The trial judge ruled in this case that Freeman was entitled to know the identity of the informer based on the holding in Keener. In response to that ruling, the officer who was most familiar with the informant disclosed the identity of the informant. The officer also testified that the informant was in North Carolina. However, the officer did not know the informant's location in North Carolina.
Nothing in Keener requires a dismissal when the government discloses the name of the informer but does not know the current location of the informer. The record does not disclose deliberate or egregious conduct by the government. Accordingly, we find no error.
Possession with the Intent to Distribute
Proof of the elements of the offense of feloniously, knowingly, and intentionally distributing a controlled substance, Code Sec. 18.2-248, necessarily encompasses proof of possession of that same controlled substance. Thus, the offense proscribed by Code Sec. 18.2-250 is a lesser included offense of Code Sec. 18.2-248. See Spear v. Commonwealth, 221 Va. 450, 457, 270 S.E.2d 737, 742 (1980); Moore v. Commonwealth, 218 Va. 388, 390-92, 237 S.E.2d 187, 189-91 (1977). In addition, the penalty for conviction for possession of a Schedule II controlled substance under Code Sec. 18.2-250 does not exceed the penalty for distributing that same substance as proscribed by Code Sec. 18.2-248.
Thus, we conclude that the trial judge did not err in convicting Freeman for a violation of Code Sec. 18.2-250. Accordingly, we affirm the conviction.
Affirmed.