COURT OF APPEALS OF VIRGINIA

Present: Judg es Frank, Agee and Senior Judge Coleman Argued at Salem, Virginia

PETE WINCHESTER, a/k/a MARK ANTHON Y 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, Assi stant 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 thenrenewed 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 info rmant with the Pittsylv ania County Sheriff's Office. On Dece mber 5, 1996, Cunningham, at the request of Investigators J. Todd Barrett an d Jimmy Lipscomb of the Sheriff's Office, met Invest igator Barrett in the We stover Drive area. The investigators wanted Cunningham to purc hase crack cocaine in a particular area and provided Cunningham with $50 for a buy. Cunningham drove his own vehicle, outfitted with a surveillance camera an d audio monitor, to the design ated area and asked, "Did anyb ody have anything?" Some people milling around told him to drive acro ss Route 656. As Cu nningham drove across Route 656, he st opped at a house where Winc hester and another male

- 2 -were refueling a car. Cunningham asked if they had anything, and someone replied "N o." Cunningham then pull ed away and turned his vehicle around as a second car pulled up to the house. As Cunningham passed the house, the second vehi cle followed him and flagged him down. Winchester was now si tting in the back of the second vehicle, leaning over the seat talking to those in the front seat. Winchester handed a pi ll bottle to Curtis Tinsley, a front seat passenger, who then pull ed a mask over his face as did Wi nchester. The masked Tinsley then came to the wi ndow of Cunnin gham's vehicle and poured crack cocain e into Cunningham's hand from the pill bottle Winchester had given him. Cu nningham paid Tinsley $50. Cunningham returned to Investigator Barrett wi th no mone y and four rocks of cocaine. On January 15, 19 97 the Grand Jury si tting for th e Circuit Court of Pittsylvania County returned an in dictment against Pete Winchester, ch arging him with violatio n of Code § 18.2-248. Subsequent to th e indictment, Inve stigator Vic Ingr am searched for Winchester through Sept ember, 1997 when he was in Winchester's neighborhood, bu t to no avail. He contacted Winc hester's mother several times befo re she moved to North Ca rolina at the end of 1997. Investigator In gram made the mother aware th at Winchester was wanted on th e indictment alth ough Winchester was also sought on other violations.

- 3 -Winchester was arrest ed on April 8, 1999. He testified that he left the Comm onwealth prior to the indictment and was not aware he was wanted under th e indictment. Winche ster further claimed that he was not in the Commonwealth at the time of the drug sale. Winchester testified he left Virginia for No rth Carolina prior to the offense becaus e he had "messed up" on probation and did not want to return to pr ison for failing to re port to hi s probation officer. II. ANALYSIS A. Jury Instruction No. 6 At trial, the evid ence showed that on January 15, 1997, Winchester was indict ed for cocaine distri bution, a se cond or subsequent offense having occurred on December 5, 19 96. The court took judicial notice of the fact that a ca pias was issued for Winchester on Ja nuary 15, 1997, an d that he was no t arrested until April 8, 1999. Invest igator Vic Ingram lo oked for Winchester "often" during 1997, but was unab le to locate him. Ingram contacted Winc hester's mother several times look ing for him. Winchester did not obje ct to this evidence. Winchester admitted leaving Virginia , but claimed he left for North Carolina before the date of the of fense becaus e he had "messed up" on probation. Winchester stated that he went to North Carolina so that he could avoid retu rning to the pe nitentiary for failing to report to his probatio n officer.

- 4 -At the close of th e evidence, Winc hester objected to Jury Instruction No. 6, which stated: THE COURT INSTRUCTS THE JURY THAT, if a person flees to avoid pr osecution or flees to avoid detectio n, apprehension or arrest, this creates no presumption that the person is guilty of having co mmitted the crime. However, it is a circ umstance which you may consider along with the other evidence. Winchester objected to the instruction as misleading and suggestive to th e jury that he fled from the prosecut ion of the drug offense. The tr ial court allowe d the jury inst ruction and in this appeal Winchester avers th e allowance was er roneous due to the factual disparities presented (i .e., he testifie d that he fled the jurisdiction for reasons unrela ted to the drug charge, he fled prior to the alleged cr ime, and he was unawar e of the drug charge pending against him). Winchester argues th at it is error to give an instruction wh ich, though a te chnical stat ement of the law in the abstract, is not supported by sufficient eviden ce in the case. "A reviewing cour t's responsibi lity in revi ewing 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. 48 5, 488, 370 S.E.2d 717, 719 (1988) (citation omitted). An in struction should be given if supported by credible evidence. See McClung v. Commonwealth , 215 Va. 654, 65 7, 212 S.E.2d 29 0, 293 (1975). Instruction No . 6 states that if a person flees to avoid prosecution, that fact creates no presumpt ion that the person is

- 5 -guilty of commit ting the crime, but is on ly a circumstance that can be considered alon g with the other evid ence. Cunningham's testimony that Winchest er was involved in th e drug sale, Detective Ingram's testimony th at he attempted to locate and serve the indictment on Wi nchester to no avail, and Winche ster's own testimony of flight su pply credible evidence to suppor t the idea of flight after the offense and th e need for th e instruction should the jury have be lieved that flight fr om the pros ecution of the drug offense occurr ed. We, therefore, cannot say the trial court erred by giving this instruction. B. Sufficiency of the Evidence "On appeal, 'we re view the evidence in the light most favorable to the Comm onwealth, granti ng to it al l reasonable inferences fairly dedu cible theref rom.'" Archer v. Commonwealth , 26 Va. App. 1, 11, 492 S.E.2d 826, 83 1 (1997) (citat ion omitted). "We will affirm the ju dgment unless it appe ars from the evidence that the judgment is plainly wrong or without eviden ce to support it." Higginbotham v. Commonwealth , 216 Va. 349, 35 2, 218 S.E.2d 534, 537 (1975). So viewed, the evid ence proved that on December 5, 1996, Cunningham, a conf idential informant, was us ed by invest igators to set up crack cocaine pu rchases. Cunn ingham employ ed audio and video recording de vices in this en deavor. After se veral attempts by Cunningham to make a purchase, a vehicle containi ng Winchester, Tinsley and a third man flagged down Cunningham. Cunningham saw

- 6 -Winchester give Tins ley a pill bottle be fore Winchester and Tinsley masked themselv es. Tinsley walked ov er to Cunningham and poured crack cocaine in to Cunningham's hand from the pill bottle Cunningham had seen Winc hester pass to Tinsle y. Cunningham gave Tinsley $50. The Commonweal th's evidence was not incompetent, was not inherently incredible , and was suff icient to pr ove beyond a reasonable doubt that Winchester committed th e charged of fense. The evidence is not made insufficient by Winchester's testimony that on December 5, 1996, he "was in Nort h Carolina. I don't know where, but I won't in Virginia." The fact fi nder, the jury, believed the Commonweal th's evidence, and re jected Winchester's testimony. "The credibility of the witnesses and the weight accorded the evidence are matters sole ly for the fact finder who has the opportunit y to see and hear that evidence as it is presented." Sandoval v. Commonwealth , 20 Va. App. 133, 138, 455 S.E.2d 730, 73 2 (1995). For these reason s we find no error, and the conv iction is affirmed. Affirmed.

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