COURT OF APPEALS OF VIRGINIA 

Present: Judges Baker, Annunziata and Overton 

Argued at Norfolk, Virginia 

STEPHEN DOUGLAS GOWENS 

 MEMORANDUM OPINION* BY 

v. Record No. 1617-96-1 JUDGE ROSEMARIE ANNUNZIATA 

 MAY 13, 1997 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS 

Robert W. Curran, Judge 

 Robert Moody, IV (Segall & Moody, on brief), 

for appellant. 

 Ruth Ann Morken, Assistant Attorney General 

(James S. Gilmore, III, Attorney General, on 

brief), for appellee. 

 Following a bench trial, appellant, Stephen Douglas Gowens, 

was convicted of distribution of cocaine in violation of Code 

§ 18.2-248. He contends the trial court erred in failing to find 

that the distribution was merely an "accommodation." For the 

reasons which follow, we affirm. 

 I. 

 Acting undercover, Investigator Burch met appellant at a 

trailer park and discussed the possibility of obtaining cocaine. 

 After ten to twenty minutes of conversation, appellant told 

Burch he would contact a seller and invited Burch to his home. 

For thirty minutes to an hour, appellant attempted to contact a 

seller who never returned appellant's calls. Burch and appellant 

 

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

designated for publication. 
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subsequently left in Burch's vehicle; appellant directed Burch to 

an apartment occupied by Robert Edwards. Appellant told Edwards 

that Burch was "an okay kind of individual, not a problem." A 

sale price was agreed upon, and Burch was directed to the 

bathroom where he exchanged money for drugs with an individual 

named Jerome. En route back to appellant's home, appellant 

"pestered" Burch for a piece of the cocaine he had just 

purchased. Burch refused to give appellant any cocaine but 

"attempted to appease him by offering . . . to purchase him a 

beer." Appellant agreed, and Burch bought him the offered beer. 

 Undeterred, however, appellant continued to "badger" Burch for 

some of the cocaine. 

 At the close of the Commonwealth's case, appellant moved to 

strike the evidence, "at least insofar as it goes beyond an 

accommodation aspect of the statute." The trial court denied 

appellant's motion to strike; the defense presented no evidence 

and renewed its motion, arguing again that "this is a classic 

accommodation." The court disagreed, finding the inference clear 

that appellant expected to receive something in return for his 

helping Burch find drugs. 

 II. 

 As an initial matter, appellant contends that there is 

insufficient evidence to support a finding beyond a reasonable 

doubt that he possessed the cocaine at issue or that he could be 

convicted as a principal in the second degree to the 
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distribution. Appellant failed to raise these contentions at 

trial and is, therefore, procedurally barred from raising them on 

appeal. Rule 5A:18. At trial, appellant did not deny complicity 

in the distribution; he argued only that he participated as an 

accommodation to Burch. The issue on appeal, therefore, is 

whether the trial court erred in failing to find that the 

distribution was merely an accommodation. 

 On appeal, we review the evidence in a light most favorable 

to the Commonwealth, granting to it all reasonable inferences 

fairly deducible therefrom. Higginbotham v. Commonwealth, 216 

Va. 349, 352, 218 S.E.2d 534, 537 (1975). "[A] defendant who 

invokes an accommodation defense has the burden of proving the 

elements of that defense by a preponderance of the evidence." 

Heacock v. Commonwealth, 228 Va. 397, 406, 323 S.E.2d 90, 95 

(1984). The accommodation defense is not available where the 

distribution was made "with intent to profit thereby from any 

consideration received or expected." Code § 18.2-248(D); 

Heacock, 228 Va. at 407, 323 S.E.2d at 96; see also Stillwell v. 

Commonwealth, 219 Va. 214, 219, 247 S.E.2d 360, 363-64 (1978); 

Gardner v. Commonwealth, 217 Va. 5, 7, 225 S.E.2d 354, 356 

(1976). 

 The evidence admitted in this case and the reasonable 

inferences it raises supports the trial court's finding that 

appellant intended to profit from the distribution he arranged. 

Appellant persistently "pestered" and "badgered" Burch for a 
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piece of the cocaine that he arranged for Burch to purchase. 

This evidence supports the inference that appellant intended to 

profit from the transaction throughout the course of the events 

described, not simply as an "afterthought" as he contends. 

Furthermore, the evidence supports the inference that appellant 

had known Burch for, at most, twenty minutes before he attempted 

to contact a seller and only another hour before he directed 

Burch to the point of sale. While the nature of the relationship 

between the parties to the transaction does not conclusively 

establish that the transaction was "for profit," see Gardner, 217 

Va. at 6, 225 S.E.2d at 355, the evidence that appellant had just 

met Burch further supports the inference that appellant intended 

to receive consideration for his efforts. Finally, appellant's 

reaction to Burch's offer to buy him a beer, followed shortly 

thereafter by a resumption of his "badgering" Burch for cocaine, 

supports the finding that appellant expected to receive some 

consideration for arranging the deal. 

 The decision of the trial court is accordingly affirmed. 

Affirmed.