COURT OF APPEALS OF VIRGINIA 

Present: Judges Baker, Willis, and Overton 

Argued at Alexandria, Virginia 

JAMIL POWELL 

v. Record No. 0540-95-4 MEMORANDUM OPINION* BY 

 JUDGE NELSON T. OVERTON 

COMMONWEALTH OF VIRGINIA JANUARY 11, 1996 

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY 

Thomas S. Kenny, Judge 

 Paul McGlone (Howard R. Porter; McGlone & Porter, on 

brief), for appellant. 

 Margaret Ann B. Walker, Assistant Attorney General 

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

for appellee. 

 

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

designated for publication. 

 Jamil Powell was convicted in a jury trial of distribution 

of a controlled substance under Code § 18.2-248. He appeals his 

conviction, contending that the trial court erred in denying jury 

instructions on both an entrapment defense and an accommodation 

defense. We disagree and affirm the conviction. 

 If credible evidence in the record supports the defendant's 

theory of defense, the trial judge may not refuse to grant a 

proper, proffered instruction. Delacruz v. Commonwealth, 11 Va. 

App. 335, 338, 398 S.E.2d 103, 105 (1990). "'An instruction, 

however, must be supported by more than a mere scintilla of 

evidence.'" Brandau v. Commonwealth, 16 Va. App. 408, 411, 430 

S.E.2d 563, 564 (1993) (quoting Boone v. Commonwealth, 14 Va. App 
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130, 132, 415 S.E.2d 250, 251 (1992)). 

 Powell requested both entrapment and accommodation 

instructions. The evidence in this case warrants neither. 

 "'Entrapment is the conception and planning of an offense by 

an officer, and his procurement of its commission by one who 

would not have perpetrated it except for the trickery, 

persuasion, or fraud of the officer.'" McCoy v. Commonwealth, 9 

Va. App. 227, 231, 385 S.E.2d 628, 630 (1989) (quoting Stamper v. 

Commonwealth, 228 Va. 707, 715, 324 S.E.2d 682, 687 (1985)). "If 

the criminal design originated in the mind of the defendant and 

the police did no more than 'afford an opportunity for the 

commission of a crime' by a willing participant, then no 

entrapment occurred." McCoy, 9 Va. App. at 231, 385 S.E.2d at 

630 (quoting Huffman v. Commonwealth, 222 Va. 823, 828, 284 

S.E.2d 837, 840 (1981)). Powell claims that he gave the cocaine 

to someone other than the police officer and that the money he 

received at that time was for an unrelated debt. The 

Commonwealth argued, and the jury found, that Powell 

independently negotiated a deal with the police officer. When 

the jury was instructed to find Powell guilty only of a sale to 

the police officer, neither theory of evidence justifies an 

entrapment instruction. 

 Code §§ 18.2-248 and 18.2-263 create a presumption against 

an accommodation distribution. Stilwell v. Commonwealth, 219 Va. 

214, 225, 247 S.E.2d 360, 367 (1978). An accommodation defense 
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is viable where the distributor acted "not with intent to profit 

thereby from any consideration received or expected nor to induce 

the recipient or intended recipient of the controlled substance 

to use or become addicted to or dependent upon such controlled 

substance . . . ." Code § 18.2-248(D). The intent to profit 

includes any consideration received or expected. Heacock v. 

Commonwealth, 228 Va. 397, 407, 323 S.E.2d 90, 95 (1984). In 

both the Commonwealth's and Powell's versions of events, money 

was exchanged at the same time the cocaine was exchanged. 

 Based on the evidence at trial, the trial court properly 

refused to grant the requested jury instructions. 

 Affirmed.