COURT OF APPEALS OF VIRGINIA 

Present: Judges Willis, Bumgardner and Frank 

Argued by teleconference 

MICHAEL ANTHONY BOOKER 

 MEMORANDUM OPINION* BY 

v. Record No. 0710-99-4 JUDGE RUDOLPH BUMGARDNER, III 

 MAY 9, 2000 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF FAUQUIER COUNTY 

William Shore Robertson, Judge 

 V. James Ventura (John Carter Morgan, Jr., 

on brief), for appellant. 

 Eugene Murphy, Assistant Attorney General 

(Mark L. Earley, Attorney General, on brief), 

for appellee. 

 

* Pursuant to Code § 17.1-413, recodifying Code 

§ 17-116.010, this opinion is not designated for publication.

After a bench trial, the trial court convicted Michael 

Anthony Booker of two counts of distributing cocaine. On 

appeal, he contends the trial court erred in rejecting his 

defense of accommodation. Finding no error, we affirm. 

 On appeal, we view the evidence in the light most favorable 

to the Commonwealth and grant to it all favorable inferences 

fairly deducible therefrom. See Archer v. Commonwealth, 26 Va. 

App. 1, 11, 492 S.E.2d 826, 831 (1997). Viewed in that manner, 

the evidence established a police informant twice approached the 

defendant and arranged a purchase of cocaine. 
On the first occasion, the informant asked the defendant 

for a $40 rock of cocaine. The defendant told him to come back 

later. When the informant returned, the woman, who had 

previously been with the defendant, met him and took him to a 

nearby motel. The informant gave her $40, and she entered a 

motel room. A short time later, the defendant came out of the 

room and gave the informant a rock of cocaine. 

The next day, the informant approached the defendant again 

and asked for $50 of crack cocaine. The defendant told the 

informant to come back in 15 minutes, which he did, and then the 

two returned to the motel. The informant gave the defendant 

$50. The defendant walked to the rear of the building, and when 

he returned, he handed the informant crack cocaine. 

The defendant contends that he stood in the middle of these 

transactions and acted only to accommodate the informant. The 

trial court rejected his claim of accommodation and fixed 

punishment accordingly. The defendant argues the trial court 

abused its discretion in rejecting his accommodation defense. 

Code § 18.2-248(D) provides for mitigation of punishment 

where one convicted of distribution is found not to be a drug 

dealer, "but by an individual citizen . . . motivated by a 

desire to accommodate a friend, without any intent to profit or 

to induce or to encourage the use of drugs." Stillwell v. 

Commonwealth, 219 Va. 214, 219, 247 S.E.2d 360, 364 (1978). The 

Supreme Court defines "profit" as a "'commercial transaction in 

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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.'" Hudspith v. Commonwealth, 17 Va. App. 136, 138, 

435 S.E.2d 588, 590 (1993) (quoting King v. Commonwealth, 219 

Va. 171, 174, 247 S.E.2d 368, 370 (1978)). 

"The 'profit' contemplated by the statute is 'any 

consideration received or expected.'" Heacock v. Commonwealth, 

228 Va. 397, 407, 323 S.E.2d 90, 96 (1984) (defendant who 

distributed drugs for free not entitled to accommodation defense 

because it was reasonable to infer that as a dealer he would 

profit from future transactions). "A distribution for 

consideration precludes even an accommodation instruction." 

Roger D. Groot, Criminal Offenses and Defenses in Virginia, Drug 

Offenses 164 n.102 (4th ed. 1999) (citations omitted). See

Winston v. Commonwealth, 16 Va. App. 901, 905-06, 434 S.E.2d 4, 

6 (1993) (accommodation jury instruction properly refused where 

evidence established that defendant facilitated sale by 

procuring drugs and delivering them to informant). 

The defendant could only prevail on this appeal if his 

evidence proved an accommodation as a matter of law. However, 

the defendant does not contest that he handed crack cocaine to 

the informant in exchange for cash. That exchange of drugs for 

consideration was a sale in violation of Code § 18.2-248. Code 

§ 18.2-248(D) establishes a presumption against an accommodation 

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distribution, see Stillwell, 219 Va. at 219, 247 S.E.2d at 364, 

and requires the defendant to prove accommodation by a 

preponderance of the evidence. See id. at 225, 247 S.E.2d at 

367. The defendant's claim of accommodation, at most, raised an 

issue of fact to be resolved by the fact finder. 

The trial court concluded from the evidence that the 

defendant did not distribute as an accommodation. Credible 

evidence in the record supports that finding. The trier of fact 

weighs the credibility of the witnesses, the weight accorded 

their testimony, and the inferences to be drawn from proven 

facts. See Long v. Commonwealth, 8 Va. App. 194, 199, 379 

S.E.2d 473, 476 (1989). Accordingly, we affirm the defendant's 

convictions. 

 Affirmed.

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