COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Moon, Judges Benton and Elder 

Argued at Richmond, Virginia 

CARL DARNELL NOEL 

 MEMORANDUM OPINION* BY 

v. Record No. 1391-94-2 CHIEF JUDGE NORMAN K. MOON 

 AUGUST 29, 1995 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF LANCASTER COUNTY 

Joseph E. Spruill, Jr., Judge 

 William A. Nunn, III, for appellant. 

 Robert B. Beasley, Jr., Assistant Attorney 

 General (James S. Gilmore, III, Attorney 

 General, on brief), for appellee. 

 Carl Darnell Noel was convicted of two counts of 

distribution of cocaine in violation of Code § 18.2-248. Noel 

contends on appeal that the evidence was insufficient to prove 

his guilt beyond a reasonable doubt. For the reasons stated 

below, we affirm the convictions. 

 I. 

 Michael Conway, a police informant, and Larry Clarke, a 

deputy United States Marshal, testified that they were working as 

undercover operatives for the Northern Neck Drug Task Force on 

August 5, 1993. At 9 p.m. they saw Noel in a brown Volvo driven 

by Chuckie Veney and signalled him to turn into a parking lot. 

Conway asked Noel if he was "doing anything," a slang phrase he 

described to mean whether Noel had any drugs. Noel told him to 

meet at Davis' Store. When Conway and Clarke arrived at the 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
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store, Conway approached the driver's side of the Volvo. Conway 

testified that he handed $50 to Noel in exchange for a rock of 

cocaine. Conway returned to Clarke's vehicle and gave the 

cocaine to Clarke, who wrapped it in tin foil, and placed it 

under the floor mat. 

 Clarke testified that although it was dark, he saw Conway 

walk to the passenger's side of the Volvo and exchange something 

on the passenger side of the vehicle. Clark testified that he 

could not clearly see the face of the person involved in the 

transaction with Conway. However, he knew that the driver was 

the same person he had seen earlier. 

 On August 19, 1993, between 8:00 and 8:30 p.m. Conway and 

Clarke returned to Davis' Store. Clarke gave Conway $100. When 

Noel drove up alone in a brown Volvo, Conway got out of Clarke's 

car and entered Noel's car. While Clarke remained in his car at 

Davis' Store, Noel and Conway drove away. Conway testified that 

after they drove away he gave Noel $100 in exchange for a rock of 

cocaine. When Conway and Noel returned to Davis' Store, Conway 

went to Clarke's car and gave cocaine to Clarke. Clarke wrapped 

the cocaine in paper and put it under his floor mat. 

 II. 

 On appeal, we consider the evidence in the light most 

favorable to the prevailing party, granting to it all reasonable 

inferences fairly deducible therefrom. Higginbotham v. 

Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975). The 
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credibility of witnesses and the weight assigned to their 

testimony are matters left exclusively for the trier of fact, in 

this case, the trial judge. Coppola v. Commonwealth, 220 Va. 

243, 252, 257 S.E.2d 797, 803 (1979), cert. denied, 444 U.S. 1103 

(1980). 

 Conway testified that he purchased a rock of cocaine from 

Noel in exchange for $50 on August 5. Clarke's testimony that he 

saw Conway and Noel exchange something in their hands and that 

Conway immediately returned with the cocaine corroborated this 

account. The fact that Clarke testified that he could not 

clearly see Noel's face does not render his testimony incredible 

nor does it render Conway's testimony unworthy of belief. "[I]t 

is for triers of the facts to judge the credibility of a 

witness." Swanson v. Commonwealth, 8 Va. App. 376, 379, 382 

S.E.2d 258, 259 (1989). 

 Conway testified that Noel sold him cocaine. This evidence 

is sufficient to convict Noel, despite Conway's admitted drug use 

during the time he worked for the task force. Both Clarke and 

Conway testified that Conway was searched prior to each buy. It 

is immaterial that there were contradictions as to where he was 

searched. The fact that Conway was searched and found to be 

clean prior to each buy "'exclude[s] every reasonable hypothesis 

of innocence.'" Coffey v. Commonwealth, 202 Va. 185, 188, 116 

S.E.2d 257, 259 (1960) (citation omitted). 

 Accordingly, we hold that the evidence was sufficient to 
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convict Noel of these crimes and affirm the trial judge's 

decision. 

 Affirmed. 
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BENTON, J., dissenting. 

 The evidence in this case does not "point unerringly" to 

Noel as the source of the cocaine. Poulos v. Commonwealth, 174 

Va. 495, 499, 6 S.E.2d 666, 667 (1940). Thus, it fails to prove 

the necessary elements of the offense beyond a reasonable doubt. 

In re Winship, 397 U.S. 358, 364 (1970). 

 During the ten months that Conway worked as an informant for 

the Northern Neck Drug Task Force, he used and distributed 

cocaine; he used powder and crack cocaine and used cocaine to 

"free base." Conway also testified that he had been a user of 

cocaine for ten years prior to his work with the drug task force 

and that his drug use increased after he began assisting the task 

force. Conway could not "put a number" on the amount of his 

cocaine usage or on the amount and times he personally 

distributed cocaine. 

 The evidence proved that during the ten months Conway and 

Clarke joined in their venture to buy drugs Conway was also 

buying drugs for his own use and distribution. Conway testified 

that he and Clarke were involved in many cases, and that it was 

"hard to remember each and every detail." Clarke testified that 

he was unaware that Conway was using cocaine during the period 

they were buying drugs. He only learned of Conway's activities 

when Noel's trial began. He also was not aware that Conway was 

distributing cocaine during the ten month period that Conway was 

buying drugs for the task force. 
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 The evidence does not prove that Conway had no drugs on his 

person when he made each transaction. Although Clarke testified 

that he searched Conway before each occasion they went to buy 

drugs, he and Conway disagreed as to where the searches occurred. 

 The contradictions in their testimony do not clearly establish 

when or where the searches occurred and, thus, whether the 

searches had the expected result. 

 Clarke testified that he searched Conway in an open wooded 

area on August 5. He guessed that the search occurred shortly 

before they met Noel. Conway testified, however, that on August 

5 Clarke searched him in Conway's home. Clarke has no 

recollection of the place where he searched Conway on August 19. 

 Both Conway and Clarke testified that it was dark when 

Conway approached the car on August 5. Clarke could not see with 

whom Conway was making an exchange, and he could not see what was 

exchanged. After Clarke received the item from Conway, Clarke 

placed it under a floor mat in the car. Clarke made a stop to 

make a telephone call before the item was delivered to a deputy 

sheriff. 

 On August 19 when Clarke and Conway were driving around 

looking for drug sellers, Clarke did not see Conway make any 

exchange. Conway entered the defendant's automobile and went for 

a ride. When Conway returned he gave Clarke an item that was 

later identified as cocaine. 

 Conway did not know the number of transactions that he and 
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Clarke made on August 5. Clarke did not recall the number of 

transactions Conway made on August 5 or August 19. However, 

Clarke testified that on most days there were several 

transactions. Clarke did not search Conway after he made 

purchases on August 5 or August 19. All of these transactions in 

which Conway obtained drugs occurred when Conway, while acting as 

an informant for the drug task force, used cocaine and 

distributed cocaine for his own profit. Thus, the evidence does 

not exclude the reasonable hypothesis that Conway, an admitted 

user of and dealer in cocaine, did not deliver to the police 

officer cocaine that he possessed and owned for his own drug use 

and distribution. 

 Conway was also paid for each purchase of cocaine that he 

made for the task force. Conway used the money he received from 

the drug task force to purchase cocaine to support his cocaine 

habit. Conway testified that he did not disclose to the task 

force the names of the sellers who supplied cocaine to him for 

his personal usage and for his personal distribution. Neither 

Conway nor any person who supplied his illegal drugs has been 

charged, prosecuted, or convicted for possession and distribution 

of drugs. 

 The evidence in this case proved that Conway was using and 

dealing the same illegal drugs that he was also procuring for the 

police. The evidence proved that he had the motive and 

opportunity for self-serving conduct and testimony. Because the 
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evidence does not exclude the hypothesis that Conway gave to the 

police the products of his own illegal conduct, I would hold that 

the evidence failed to prove beyond a reasonable doubt that he 

obtained the cocaine from Noel. Thus, I would reverse the 

convictions.