COURT OF APPEALS OF VIRGINIA 

Present: Judges Baker, Coleman and Overton 

Argued by teleconference 

LAWRENCE (NMN) BARLOW 

 OPINION BY 

v. Record No. 2885-96-3 JUDGE SAM W. COLEMAN III 

 JANUARY 27, 1998 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG 

Richard S. Miller, Judge 

 Thomas S. Leebrick (Mosby & Leebrick, on 

brief), for appellant. 

 Richard B. Smith, Assistant Attorney General 

(Richard Cullen, Attorney General, on brief), 

for appellee. 

 Lawrence Barlow appeals his bench trial conviction for 

possession of heroin with intent to distribute. He contends the 

trial court erred (1) by admitting irrelevant evidence of 

statements he made to police regarding his prior drug use and 

dealings; (2) by rejecting his accommodation defense; (3) by 

permitting the Commonwealth during the sentencing phase to refer 

to the length of the penitentiary sentences imposed on 

codefendants, and (4) that the evidence was insufficient to prove 

that he intended to distribute heroin. Upon review, we affirm 

the conviction. 

I. BACKGROUND

 Investigator W. K. Dance, while conducting drug surveillance 

at the Lynchburg bus terminal with other police officers, saw 

appellant drive into the parking lot and park beside a car driven 
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by Howard White. The appellant and White began talking. Shortly 

thereafter, Andrew Wilson, appellant's nephew, arrived on an 

incoming bus and got into appellant's car carrying a large, black 

duffel bag. Both cars then left the bus terminal. 

 The officers lost sight of the cars in traffic. However, 

Investigator Dance knew White's address and proceeded there. 

When Investigator Dance arrived at White's apartment, he saw 

appellant, White, and Wilson entering the apartment. When they 

saw Dance, they ran inside. Dance radioed for back-up. 

 Dance then saw appellant leave the apartment and walk toward 

his car. Dance approached appellant and identified himself. He 

noticed that the black duffel bag Wilson had carried from the bus 

was located on the front passenger side floor of appellant's car. 

 A drug-sniffing dog, which had been brought to the scene, 

"alerted" on the vehicle. Appellant then consented to a search 

of his car. When Dance opened the duffel bag, he found cocaine. 

 Dance arrested Wilson for possessing cocaine. Wilson then 

told Dance that heroin could be found in the apartment. After 

Dance obtained White's consent to search his apartment, the 

officers found 492 individual packages of heroin in White's 

basement. 

 After being taken to the stationhouse, appellant waived his 

Miranda rights. He then told the officers that he had picked up 

his nephew at the bus station to take him to Roanoke and that 

they had stopped by White's place to "get high." He admitted 
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that he was a long-time heroin user. Appellant acknowledged that 

on previous occasions Wilson had traveled to New York and 

returned with "bricks" of heroin to sell. Appellant told police 

that on these occasions Wilson had given him heroin, and he had 

sold some of it to support his habit. He said that he expected 

Wilson to bring a "brick," or fifty packages of heroin, on this 

occasion. On previous occasions, appellant had sold at cost the 

heroin Wilson had given him so that he could "get high" with the 

purchasers and may occasionally have taken a profit of "a few 

dollars." 

 Appellant was indicted for possession of heroin with intent 

to distribute and possession of cocaine. At appellant's bench 

trial, the judge denied the defense motion to suppress 

appellant's statement to police, holding that evidence of 

appellant's prior acts of receiving drugs from Wilson and 

distributing them to others was admissible to prove a common 

scheme of drug distribution between appellant and Wilson. 

Testifying for appellant, Wilson stated that appellant had no 

knowledge of the drugs found in his duffel bag. He testified 

that he had asked appellant to bring him from the bus station to 

Roanoke and that he and appellant went to White's to get high, 

not to sell drugs. 

 The trial court convicted appellant for possession of heroin 

with intent to distribute but struck the evidence as insufficient 

on the cocaine charge. At appellant's sentencing, the prosecutor 
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asked the trial judge to impose the same ten-year penitentiary 

sentence that White and Wilson had received. The trial court 
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ordered and received a presentence report, which also contained 

information regarding the codefendants' sentences. 

II. EVIDENCE OF PRIOR BAD ACTS

 Generally, evidence of prior crimes or bad acts is 

inadmissible to prove that the accused committed the crime 

charged. See Wilson v. Commonwealth, 16 Va. App. 213, 220, 429 

S.E.2d 229, 233 (1993) (admission of other crimes evidence tends 

to prejudice a defendant in the minds of the jury showing his 

depravity and criminal propensity). The rule is not without 

exception. If evidence of other conduct is relevant "to prove 

any element or fact in issue at trial, it should be admitted, 

whether or not it tends to show the [accused] guilty of another 

crime." Parnell v. Commonwealth, 15 Va. App. 342, 348, 423 

S.E.2d 834, 838 (1992) (citing Kirkpatrick v. Commonwealth, 211 

Va. 269, 272, 176 S.E.2d 802, 805 (1970)). Such evidence may be 

admitted "to prove any number of relevant facts, such as motive, 

intent, agency, or knowledge," Wilson, 16 Va. App. at 220, 429 

S.E.2d at 234, or that the prior bad acts "constitute a part of 

[a] general scheme of which the crime charged is a part." 

Rodriguez v. Commonwealth, 249 Va. 203, 206, 454 S.E.2d 725, 727 

(1995). However, to be admissible, the probative value of the 

evidence, which coincidentally may prove a crime, must outweigh 

the prejudicial effect inherent in such evidence. See Wilson, 16 

Va. App. at 220, 429 S.E.2d at 233-34. 

 In this case, proof of appellant's prior drug dealings with 
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Wilson was highly relevant to prove that he and Wilson were 

involved in a continuing "general scheme" of drug procurement and 

distribution of which this shipment of heroin was a part. 

"Evidence of what the defendant did as a part of a plan or scheme 

of which the [drugs] he possessed was a part is the best 

available evidence of what he intended to do with the [drugs]" on 

this occasion. Rodriguez, 249 Va. at 206, 454 S.E.2d at 727. 

Accepting appellant's account that his involvement in the scheme 

was limited to providing transportation from the bus terminal to 

Roanoke in exchange for a small quantity of drugs, such evidence 

was relevant to prove that appellant knew of the nature and 

presence of heroin and that he would receive a quantity of it in 

exchange for his assistance. See Moore v. Commonwealth, 25 Va. 

App. 277, 288, 487 S.E.2d 864, 869 (1997) (holding evidence 

sufficient to prove possession of heroin with intent to 

distribute where defendant secreted heroin for another knowing of 

other's intent to sell the heroin). Such evidence proved a 

common scheme whereby the appellant aided and abetted Wilson's 

drug distribution activity. Rodriguez, 249 Va. at 207, 454 

S.E.2d at 727-28. 

 Furthermore, the trial judge did not abuse his discretion in 

ruling that the prejudicial effect of this evidence did not 

outweigh its probative value. See Jennings v. Commonwealth, 20 

Va. App. 9, 18, 454 S.E.2d 752, 756 (1995). Thus, the admission 

into evidence of appellant's statements to police was not error. 
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III. SUFFICIENCY OF THE EVIDENCE

 On appeal, we view the evidence in the light most favorable 

to the Commonwealth and grant to it all reasonable inferences 

therefrom. Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 

S.E.2d 534, 537 (1975). We may not disturb the trial court's 

judgment unless it is "plainly wrong or without evidence to 

support it." Beavers v. Commonwealth, 245 Va. 268, 282, 427 

S.E.2d 411, 421 (1993). 

 The Commonwealth may prove possession of a controlled 

substance by showing either actual or constructive possession. 

White v. Commonwealth, 24 Va. App. 446, 452, 482 S.E.2d 876, 879 

(1997). 

 To support a conviction based on constructive 

possession, "the Commonwealth must point to 

evidence of acts, statements, or conduct of 

the accused or other facts or circumstances 

which tend to show that the defendant was 

aware of both the presence and character of 

the substance and that it was subject to his 

dominion and control." 

Id. (quoting Drew v. Commonwealth, 230 Va. 471, 473, 338 S.E.2d 

844, 845 (1986)). Moreover, "the possession need not be 

exclusive. The defendant may share [drugs] with one or more. 

The duration of the possession is immaterial and need not always 

be actual possession." Ritter v. Commonwealth, 210 Va. 732, 741, 

173 S.E.2d 799, 806 (1970); see Wood v. Commonwealth, 213 Va. 

363, 192 S.E.2d 762 (1972) (upholding conviction for possession 

where defendant acted as intermediary between buyer and seller of 

drugs despite absence of any physical contact with drugs). 
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 "Possession with intent to distribute is a crime which 

requires an act coupled with a specific intent." Stanley v. 

Commonwealth, 12 Va. App. 867, 869, 407 S.E.2d 13, 15 (1991) (en

banc). Because direct proof of intent is often impossible to 

produce, it may, and frequently must, be shown by circumstantial 

evidence. Servis v. Commonwealth, 6 Va. App. 507, 524, 371 

S.E.2d 156, 165 (1988); see Monroe v. Commonwealth, 4 Va. App. 

154, 156, 355 S.E.2d 336, 337 (1987) ("The quantity of a 

controlled substance is a factor which may indicate the purpose 

for which it is possessed."). When the Commonwealth relies on 

circumstantial evidence, it must "exclude every reasonable 

hypothesis of innocence," Pemberton v. Commonwealth, 17 Va. App. 

651, 655, 440 S.E.2d 420, 422 (1994), but need not disprove every 

remote possibility of innocence. Cantrell v. Commonwealth, 7 Va. 

App. 269, 289, 373 S.E.2d 328, 338 (1988). 

 A person who knowingly aids or abets another in the 

commission of a felony is guilty of the felony as a principal in 

the second degree and is subject to the same punishment as the 

perpetrator of the crime. Code § 18.2-18. Appellant told the 

officers that he expected Wilson to have heroin, as he had on 

previous occasions, and that they had gone to White's house to 

get "high." The evidence is sufficient to prove that appellant 

knowingly aided and abetted Wilson in transporting heroin from 

the Lynchburg bus station to Roanoke, knowing that Wilson was 

going to sell or distribute the heroin. Furthermore, the 
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evidence was sufficient to prove that in exchange for his 

assistance, appellant expected to receive from Wilson a quantity 

of heroin. 

 Accordingly, the evidence is sufficient to support 

appellant's conviction for possession of heroin with intent to 

distribute as a principal in the second degree based upon his 

providing assistance to Wilson in transporting the drugs, knowing 

they were to be distributed, or as a principal in the first 

degree for his possession and transportation of the drugs in 

exchange for a quantity that he would use or sell. 

IV. ACCOMMODATION DEFENSE

 Code § 18.2-248(D) provides for mitigation of punishment 

where one convicted of possession with intent to distribute is 

found not to be a dealer in drugs, but one "motivated by a desire 

to accommodate a friend without any intent to profit or to induce 

or to encourage the use of drugs." Stillwell v. Commonwealth, 

219 Va. 214, 219-20, 247 S.E.2d 360, 364 (1978). Appellant 

argues that the trial court erred in refusing to apply the 

accommodation defense under Code § 18.2-248(D) because the 

evidence of his prior dealings proved that he only intended to 

accommodate others by "charg[ing] them the cost . . . just to get 

high with them." 

 The "profit" contemplated by the accommodation statute 

includes any "commercial transaction in which there is 

consideration involved. It does not mean that a seller of drugs 
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has to sell drugs to a buyer at a price in excess of the amount 

the seller has paid for [them]." Hudspith v. Commonwealth, 17 

Va. App. 136, 138, 435 S.E.2d 588, 590 (1993). In appellant's 

statement to police, he admitted he had sold at cost the heroin 

he obtained from Wilson and sometimes would make a small profit. 

 Also, he admitted he received drugs from Wilson in exchange for 

assisting Wilson; therefore, whatever remuneration appellant 

received from the sale of the drugs was profit to him. Thus, the 

evidence proved that appellant intended to sell the heroin in a 

commercial transaction for consideration, as he had done on prior 

occasions. The fact that appellant would not sell the heroin for 

more than he "paid" for it is of no import. The evidence did not 

prove that appellant sold the heroin to others merely as an 

accommodation. The trial court's rejection of his accommodation 

claim was not error. See Winston v. Commonwealth, 16 Va. App. 

901, 905, 434 S.E.2d 4, 6 (1993) (defendant bears the burden to 

prove an accommodation distribution by a preponderance of the 

evidence). 

V. REFERENCE TO CODEFENDANTS' SENTENCES

 Appellant contends the prosecutor committed reversible error 

by referring to the length of the codefendants' sentences during 

appellant's sentencing hearing. Appellant contends this action 

violated the principle that "a defendant has a right to have 

his . . . punishment determined by the evidence against him and 

not by what sentence has been imposed in another criminal 
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prosecution against an accomplice, [or] a co-defendant." See

Ward v. Commonwealth, 205 Va. 564, 138 S.E.2d 293 (1964). See 

also Walker v. Commonwealth, 212 Va. 289, 291, 183 S.E.2d 739, 

741 (1971) (citing Ward, 205 Va. at 573-74, 138 S.E.2d at 298 

(1964)). The situation in Ward is not comparable to the 

situation in the present case. In Ward, the prosecutor's comment 

was made during a unitary jury trial; in this case, the comment 

was made in a bench trial to the trial judge during the 

sentencing phase. A trial judge is given greater latitude than a 

jury in the factors that may be considered in determining an 

appropriate sentence, including a variety of facts that are 

contained in presentence reports. See Code § 19.2-299. The 

presentence report may contain "the history of the accused . . . 

and all other relevant facts to fully advise the court so [it] 

may determine the appropriate sentence to be imposed." Id.

(emphasis added). Thus, even in a jury trial, the judge may 

consider the same factors when supervising a jury verdict and 

considering whether to accept, suspend, or modify the jury's 

recommended sentence. A codefendant's sentence may be considered 

relevant by the trial judge to the ultimate sentence that is 

imposed in either a bench or jury trial and the length of a 

codefendant's sentence is routinely contained in the presentence 

report, even though such information would be inappropriate for a 

jury to consider. See State v. Giebel, 541 N.W.2d 815, 820 (Wis. 

App. 1995); State v. Buck, 314 S.E.2d 406, 410 (W. Va. 1984). In 
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this case, the prosecutor's comment regarding the codefendants' 

sentences was information contained in the presentence report. 
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The trial judge did not err in permitting the prosecutor's 

comment. 

 Accordingly, we affirm the conviction. 

 Affirmed.