COURT OF APPEALS OF VIRGINIA

Present: Judges Coleman, Annunzia ta and Bumgardner Argued at Salem, Virginia

ROBERT TATE WESCOAT MEMORANDUM OPINION * BY v. Record No. 1256-98-2 JUDGE SAM W. COLEMAN III FEBRUARY 15, 2000 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COUR T OF ALBEMARLE COUNTY Paul M. Peatro ss, Jr., Judge Scott Goodman for appellant. Kathleen B. Martin , Assistant Attorney General (Mark L. Earley , Attorney General; Thomas D. Bagwell, Senior Assi stant Attorney General, on brief), for appellee.

* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. Robert Tate Wesc oat was convic ted in a jury trial of distribution of marijuana to a juvenile in violation of Code § 18.2-255 and attempte d distribution of marijuana to a juvenile at least three years hi s junior in vi olation of Code § 18.2-26. On appeal, Wescoa t argues that th e evidence was in sufficient to support his convic tion for attempte d distribution of marijuana. We disagree and affi rm the conviction. BACKGROUND Viewed in the ligh t most favorable to the Commonwe alth, the evidence established that on April 5, 1997, Wesc oat gave- 2 - approximately tw o ounces of mariju ana to Ben Holt to sell. Holt was seventeen year s old at the time and had sold marijuana for Wescoat during the prec eding months. After be ing arrested trying to sell the drugs at Albemarl e High School, where he was a student, Holt agreed to assist authorit ies in conducting a controlled buy fr om Wescoat. Holt participated in two tape-rec orded telephon e calls with Wescoat where, according to Holt, Wescoa t agreed to gi ve Holt more marijuana to sell. Ho lt asked Wescoat how mu ch marijuan a Wescoat could obtain. Holt stated that he would ne ed a "half" or a "QP." Wescoat inform ed Holt that a "QP" woul d cost $450. Holt and Wescoat agreed to meet on April 21, 1997. Just prior to the meeting, Wescoat informed Holt that he would bring a "hal f" to the meeting, the amount We scoat had with him at the time, an d that he would "go into town and pick up some more and give it to [Holt]." That evening Wescoa t and Holt met at th e Forest Lakes Food Lion. During the meet ing, Holt gave Wescoa t money that he owed Wescoat for the tw o ounces of mari juana that Holt had previously purchased. The recording of the meeting proved that Wescoat was mistaken about the amou nt of marijuan a that Holt ha d wanted to purchase. Wescoat info rmed Holt that he wo uld sell him whatever he needed.

Wescoat was ar rested in the parking lot and was searched. The officers found a sm all amount of marijuana (4.7 grams) on- 3 - Wescoat. In Wescoat' s vehicle, the office rs found the marked money Holt had given to Wescoat for the two ounces of marijuana Wescoat prev iously sold Holt. Jefferson Area Drug Enforcement Ta sk Force Sergeant Michael Dean was qualified as an expert in the vern acular of the drug trade and he testified that "Q P" means a quarter pound of marijuana and th at a "half" means a ha lf pound of marijuana. Wescoat testif ied that he ha d never sold dr ugs to Holt. Wescoat admitt ed that he was on e of the people involved in the taped telephone co nversations, but he stated that his comments concerning his ability to obtain marijuana wa s merely bragging. Wescoat testifie d that the marijuana fo und on him during the search was for hi s personal use. ANALYSIS Wescoat argues that although the tape recording of the meeting indica tes that he woul d supply addition al marijuana to Holt, no direct act wa s committed by Wescoat toward consummation of the sale of ma rijuana. He ar gues that, even assuming a large amount of drugs existed elsewh ere that he intend ed to obtain for Holt, no evidence ex isted that he committed an act toward obtaining the drugs. On review of a chal lenge to the sufficie ncy of the evidence, we view the evidence in the light most favorable to the Commonwealth and grant to it al l reasonable infe rences fairly- 4 - deducible th erefrom. See Commonwealth v. Jenkins , 255 Va. 516, 521, 499 S.E.2d 263, 265 (1998). "The credibility of the witnesses and the weight accorded the evid ence are matters solely for the fact finder wh o has the opport unity to see and hear that evidence as it is presented." Sandoval v. Commonwealth , 20 Va. App. 133, 138, 455 S. E.2d 730, 732 (1995) (citations omitted). "'An attempt to commit a crime is composed of two elements: (1) Th e intent to co mmit it; and (2) a direct, ineffectual act do ne towards its commission.'" Haywood v. Commonwealth , 20 Va. App. 562, 565, 458 S.E.2d 606, 607-08 (1995) (citation omitte d). A direct, ineffectual act, done toward commission of an offens e need not be the last proximate act toward completion of the offense, but "it must go beyond mere preparation and be done to produce the intended result." Tharrington v. Commonwealth , 2 Va. App. 491, 49 4, 346 S.E.2d 337, 339 (1986). In distinguishing acts of mere prepar ation from acts that constitute an attempt, "'it may be said that preparatio n consists [of] . . . arranging the mean s or measures necessary for the comm ission of the offense and th at the attempt is the dire ct movement toward the commission after the prep arations are made.'" Granberry v. Commonwealth , 184 Va. 674, 678, 36 S.E.2d 547, 54 8 (1946) (quoting 14 Am. Jur. Criminal Law § 67 (1938)). More over, where intent has been shown, any slight act done in furt herance of this intent will- 5 - constitute an attempt. See Tharrington , 2 Va. App. at 494, 346 S.E.2d at 340. Here, the evidence proves that Wescoat intended and attempted to distribute marijuana to Holt for further distribution. Wescoat and Holt discussed on three separate occasions when and how much marijuana Wescoat could obtain. Wescoat and Holt met at the prearranged location for the transfer of marijuana. Wescoat had marijuana with him. At the meeting, it became apparent that Wescoat did not have the quantity of drugs with him that Holt wanted to purchase. Wescoat had mistakenly thought that Holt wanted a half ounce, which Wescoat stated he was prepared to sell Holt at the time. However, Wescoat agreed to obtain a substantial amount of marijuana for Holt and instructed Holt to call him later that evening. Wescoat was arrested before he left the parking lot. The evidence proves that not only did Wescoat and Holt negotiate a sale and prearrange a meeting to consummate the sale, Wescoat met Holt and intended and attempted to sell the amount of marijuana that he had with him. Except for the misunderstanding that Wescoat had regarding the amount of drugs that Holt wanted to purchase, the sale would have been consummated. Going to the parking lot with marijuana that he intended to sell to Holt as per their prior agreement- 6 - constituted an attempt by Wescoat to sell marijuana to a juvenile. We, therefore, find the evidence sufficient and affirm the conviction. Affirmed.