COURT OF APPEALS OF VIRGINIA 

Present: Judges Frank, Agee and Senior Judge Coleman 

Argued at Salem, Virginia 

PETE WINCHESTER, a/k/a 

 MARK ANTHONY WINCHESTER 

 MEMORANDUM OPINION* BY 

v. Record No. 0942-00-3 JUDGE G. STEVEN AGEE 

 MAY 15, 2001 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF PITTSYLVANIA COUNTY 

B. A. Davis, III, Judge Designate 

 J. Patterson Rogers, III, for appellant. 

 Eugene Murphy, Assistant Attorney General 

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

for appellee. 

 

* Pursuant to Code § 17.1-413, this opinion is not 

designated for publication.

 In a jury trial in the Circuit Court of Pittsylvania 

County, Pete Winchester (Winchester) was convicted of 

distribution of cocaine, a second or subsequent offense, in 

violation of Virginia Code § 18.2-248. At trial, Winchester's 

motion to strike the evidence as insufficient was denied. 

Subsequently, Winchester objected to Jury Instruction No. 6 on 

the grounds that the proposed instruction suggested to the jury 

that Winchester had fled prosecution. The court overruled the 

objection, and Winchester noted an exception. Winchester then 
renewed his motion to strike, which the court again denied, and 

Winchester noted his exception. 

 After finding Winchester guilty, the jury recommended a 

sentence of ten years incarceration and a fine of $5,000. 

Winchester moved that the verdict be set aside as contrary to 

the law and the evidence. The trial court denied that motion 

and on April 25, 2000 sentenced Winchester to a term of 

incarceration for ten years. 

 Winchester now appeals, arguing that the trial court erred 

in giving Jury Instruction No. 6, which he complains was overly 

suggestive, and erred in finding the evidence sufficient to 

support his conviction. We disagree and affirm the conviction. 

I. BACKGROUND 

 In December 1996, Larry Cunningham (Cunningham) was working 

as a confidential informant with the Pittsylvania County Sheriff's 

Office. On December 5, 1996, Cunningham, at the request of 

Investigators J. Todd Barrett and Jimmy Lipscomb of the Sheriff's 

Office, met Investigator Barrett in the Westover Drive area. The 

investigators wanted Cunningham to purchase crack cocaine in a 

particular area and provided Cunningham with $50 for a buy. 

 Cunningham drove his own vehicle, outfitted with a 

surveillance camera and audio monitor, to the designated area and 

asked, "Did anybody have anything?" Some people milling around 

told him to drive across Route 656. As Cunningham drove across 

Route 656, he stopped at a house where Winchester and another male 

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were refueling a car. Cunningham asked if they had anything, and 

someone replied "No." Cunningham then pulled away and turned his 

vehicle around as a second car pulled up to the house. As 

Cunningham passed the house, the second vehicle followed him and 

flagged him down. 

 Winchester was now sitting in the back of the second vehicle, 

leaning over the seat talking to those in the front seat. 

Winchester handed a pill bottle to Curtis Tinsley, a front seat 

passenger, who then pulled a mask over his face as did Winchester. 

The masked Tinsley then came to the window of Cunningham's vehicle 

and poured crack cocaine into Cunningham's hand from the pill 

bottle Winchester had given him. Cunningham paid Tinsley $50. 

Cunningham returned to Investigator Barrett with no money and four 

rocks of cocaine. 

 On January 15, 1997 the Grand Jury sitting for the Circuit 

Court of Pittsylvania County returned an indictment against Pete 

Winchester, charging him with violation of Code § 18.2-248. 

Subsequent to the indictment, Investigator Vic Ingram searched for 

Winchester through September, 1997 when he was in Winchester's 

neighborhood, but to no avail. He contacted Winchester's mother 

several times before she moved to North Carolina at the end of 

1997. Investigator Ingram made the mother aware that Winchester 

was wanted on the indictment although Winchester was also sought 

on other violations. 

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 Winchester was arrested on April 8, 1999. He testified that 

he left the Commonwealth prior to the indictment and was not aware 

he was wanted under the indictment. Winchester further claimed 

that he was not in the Commonwealth at the time of the drug sale. 

Winchester testified he left Virginia for North Carolina prior to 

the offense because he had "messed up" on probation and did not 

want to return to prison for failing to report to his probation 

officer. 

II. ANALYSIS 

A. Jury Instruction No. 6 

 At trial, the evidence showed that on January 15, 1997, 

Winchester was indicted for cocaine distribution, a second or 

subsequent offense having occurred on December 5, 1996. The court 

took judicial notice of the fact that a capias was issued for 

Winchester on January 15, 1997, and that he was not arrested until 

April 8, 1999. Investigator Vic Ingram looked for Winchester 

"often" during 1997, but was unable to locate him. Ingram 

contacted Winchester's mother several times looking for him. 

Winchester did not object to this evidence. 

 Winchester admitted leaving Virginia, but claimed he left for 

North Carolina before the date of the offense because he had 

"messed up" on probation. Winchester stated that he went to North 

Carolina so that he could avoid returning to the penitentiary for 

failing to report to his probation officer. 

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 At the close of the evidence, Winchester objected to Jury 

Instruction No. 6, which stated: 

THE COURT INSTRUCTS THE JURY THAT, if a 

person flees to avoid prosecution or flees to 

avoid detection, apprehension or arrest, this 

creates no presumption that the person is 

guilty of having committed the crime. 

However, it is a circumstance which you may 

consider along with the other evidence. 

 Winchester objected to the instruction as misleading and 

suggestive to the jury that he fled from the prosecution of the 

drug offense. The trial court allowed the jury instruction and in 

this appeal Winchester avers the allowance was erroneous due to 

the factual disparities presented (i.e., he testified that he fled 

the jurisdiction for reasons unrelated to the drug charge, he fled 

prior to the alleged crime, and he was unaware of the drug charge 

pending against him). Winchester argues that it is error to give 

an instruction which, though a technical statement of the law in 

the abstract, is not supported by sufficient evidence in the case.

 "A reviewing court's responsibility in reviewing jury 

instructions is 'to see that the law has been clearly stated and 

that the instructions cover all issues which the evidence fairly 

raises.'" Darnell v. Commonwealth, 6 Va. App. 485, 488, 370 

S.E.2d 717, 719 (1988) (citation omitted). An instruction should 

be given if supported by credible evidence. See McClung v. 

Commonwealth, 215 Va. 654, 657, 212 S.E.2d 290, 293 (1975). 

 Instruction No. 6 states that if a person flees to avoid 

prosecution, that fact creates no presumption that the person is 

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guilty of committing the crime, but is only a circumstance that 

can be considered along with the other evidence. Cunningham's 

testimony that Winchester was involved in the drug sale, Detective 

Ingram's testimony that he attempted to locate and serve the 

indictment on Winchester to no avail, and Winchester's own 

testimony of flight supply credible evidence to support the idea 

of flight after the offense and the need for the instruction 

should the jury have believed that flight from the prosecution of 

the drug offense occurred. We, therefore, cannot say the trial 

court erred by giving this instruction. 

B. Sufficiency of the Evidence 

 "On appeal, 'we review the evidence in the light most 

favorable to the Commonwealth, granting to it all reasonable 

inferences fairly deducible therefrom.'" Archer v. Commonwealth, 

26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997) (citation omitted). 

"We will affirm the judgment unless it appears from the evidence 

that the judgment is plainly wrong or without evidence to support 

it." Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 

534, 537 (1975). 

 So viewed, the evidence proved that on December 5, 1996, 

Cunningham, a confidential informant, was used by investigators to 

set up crack cocaine purchases. Cunningham employed audio and 

video recording devices in this endeavor. After several attempts 

by Cunningham to make a purchase, a vehicle containing Winchester, 

Tinsley and a third man flagged down Cunningham. Cunningham saw 

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Winchester give Tinsley a pill bottle before Winchester and 

Tinsley masked themselves. Tinsley walked over to Cunningham and 

poured crack cocaine into Cunningham's hand from the pill bottle 

Cunningham had seen Winchester pass to Tinsley. Cunningham gave 

Tinsley $50. 

 The Commonwealth's evidence was not incompetent, was not 

inherently incredible, and was sufficient to prove beyond a 

reasonable doubt that Winchester committed the charged offense. 

The evidence is not made insufficient by Winchester's testimony 

that on December 5, 1996, he "was in North Carolina. I don't know 

where, but I won't in Virginia." The fact finder, the jury, 

believed the Commonwealth's evidence, and rejected Winchester's 

testimony. "The credibility of the witnesses and the weight 

accorded the evidence are matters solely for the fact finder who 

has the opportunity 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). 

 For these reasons we find no error, and the conviction is 

affirmed. 

 Affirmed. 

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