Opinion
Record No. 0094-92-4
June 15, 1993
FROM THE CIRCUIT COURT OF ARLINGTON COUNTY WILLIAM L. WINSTON, JUDGE.
Carl G. Womack, Jr., for appellant.
Marla Lynn Graff, Assistant Attorney General (Mary Sue Terry, Attorney General, on brief), for appellee.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
A jury convicted Joe Wilson of possession of cocaine with the intent to distribute in violation of Code § 18.2-248. On appeal, Wilson contends that the trial court erred when it refused to instruct the jury on the lesser included offense of cocaine possession. We disagree and affirm the judgment of the trial court.
On May 16, 1990, an informant advised Officer Deisimore, working undercover, that "two subjects were selling crack cocaine in the Green Valley area." Investigating this information, Deisimore saw a van enter the rear parking lot of Country Club Towers. Wilson and another man stepped out of the van. Wilson opened the van's gas cap and removed something. Deisimore radioed a description of the two men and requested that a uniformed police officer stop them for questioning.
Officer Dolan pulled his police car alongside the two men. At that time, both Dolan and Deisimore saw Wilson drop the object which had come from the van's gas cap area. Dolan retrieved the object. It was a plastic bag containing eleven vials of a substance appearing, and confirmed by field test, to be cocaine.
Dolan arrested Wilson, took him to the Arlington County jail, and advised him of his Miranda rights. After signing a waiver of rights form, Wilson told Dolan that he went to Washington, D.C. to buy cocaine and planned to sell the vials for $10 each in Green Valley. He further stated, "[y]ou know, Dolan, a guy has to make a living." During the trial, Wilson requested a simple possession instruction and the trial court denied this request. Because Wilson requested this instruction at trial, Rule 5A:18 does not apply to bar this appeal and we will consider this issue on its merits.
"A defendant is entitled to have the jury instructed only on those theories of the case that are supported by evidence."Frye v. Commonwealth, 231 Va. 370, 388, 345 S.E.2d 267, 280 (1986) (citations omitted). A court need not instruct on a lesser-included offense where a reasonable view of the evidence would not permit conviction for that offense. Cortner v. Commonwealth, 222 Va. 557, 562, 281 S.E.2d 908, 910-11 (1981).
The packaging of the cocaine and Wilson's statements to Officer Dolan lead only to the conclusion that his possession of the cocaine was with the intent to distribute. No reasonable view of the evidence permits the conclusion that his possession was for any other purpose. Therefore, the trial court did not err in refusing to instruct the jury on simple possession.
The judgment of the trial court is affirmed.
Affirmed.