COURT OF APPEALS OF VIRGINIA 

Present: Judges Baker, Coleman and Elder 

Argued at Richmond, Virginia 

CHARLES NORMAN THOMPSON 

 MEMORANDUM OPINION* BY 

v. Record No. 0475-95-2 JUDGE LARRY G. ELDER 

 FEBRUARY 27, 1996 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY 

John F. Daffron, Jr., Judge 

 Dana L. Gay (Duty, Duty & Gay, on brief), for 

appellant. 

 Patricia L. McKenney, Assistant Attorney 

General (James S. Gilmore, III, Attorney 

General, on brief), for appellee. 

 Charles Norman Thompson (appellant) appeals his conviction 

for attempted distribution of cocaine in violation of Code 

§ 18.2-26, contending that sufficient evidence did not support 

the conviction. We disagree and affirm the conviction. 

 "'It is well established that an attempt is composed of two 

elements: [1] the intention to commit the crime, and [2] the 

doing of some direct acts towards its consummation which is more 

than mere preparation but falls short of execution of the 

ultimate purpose.'" Lewis v. Commonwealth, 15 Va. App. 337, 339, 

423 S.E.2d 371, 373 (1992)(quoting Sizemore v. Commonwealth, 218 

Va. 980, 983, 243 S.E.2d 212, 213 (1978)). Appellant contends 

that the evidence was insufficient to prove either of these 

 

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

designated for publication. 
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elements. We disagree. 

 Familiar standards of appellate review guide our analysis. 

"On appeal, we review the evidence in the light most favorable to 

the Commonwealth, granting to it all reasonable inferences fairly 

deducible therefrom." Martin v. Commonwealth, 4 Va. App. 438, 

443, 358 S.E.2d 415, 418 (1987). "The judgment of a trial court 

. . . will not be set aside unless it appears from the evidence 

that the judgment is plainly wrong or without evidence to support 

it." Josephs v. Commonwealth, 10 Va. App. 87, 99, 390 S.E.2d 

491, 497 (1990)(en banc). The credibility of a witness, the 

weight accorded the testimony, and the inferences to be drawn 

from proven facts are matters solely for the fact finder's 

determination. Long v. Commonwealth, 8 Va. App. 194, 199, 379 

S.E.2d 473, 476 (1989). 

Intent: 

 "Intent may, and most often must, be proven by 

circumstantial evidence[,] and the reasonable inferences to be 

drawn from the proven facts are within the province of the trier 

of fact." Fleming v. Commonwealth, 13 Va. App. 349, 353, 412 

S.E.2d 180, 183 (1991)(citation omitted). "Intent may be shown 

by a person's conduct and by his statements." Long v. 

Commonwealth, 8 Va. App. 194, 198, 379 S.E.2d 473, 476 (1989). 

When the "evidence of intent is wholly circumstantial, 'all 

necessary circumstances proved must be consistent with guilt and 

inconsistent with innocence and exclude every reasonable 
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hypothesis of innocence.'" Dukes v. Commonwealth, 227 Va. 119, 

122, 313 S.E.2d 382, 382 (1984)(citation omitted). 

 We hold that the Commonwealth presented sufficient credible 

evidence to prove beyond a reasonable doubt that appellant 

intended to distribute cocaine to the undercover officers. 

Appellant's conduct and statements provided the trial court with 

only one reasonable inference to be drawn from the facts and 

circumstances. Appellant directed the officers to the back of 

the apartment building; appellant approached the officers and 

asked them what they needed; appellant told the officers, "we got 

some good crack in here;" and appellant took forty dollars from 

Officer Knott for a desired amount of cocaine. Appellant then 

handed Officer Tozko his wrist-watch as "security" before going 

to another part of the building, presumably to retrieve the 

cocaine. Appellant also told the officers, "my man is making it 

right now, and it'll take about two minutes. He makes some 

killer crack with 85 percent cocaine and the rest whatever holds 

it together." 

Acts beyond mere preparation: 

 To prove an attempt, "[t]he evidence must prove 'an overt 

but ineffectual act committed in furtherance of the criminal 

purpose.'" Lewis, 15 Va. App. at 339, 423 S.E.2d at 373 (quoting 

Howard v. Commonwealth, 221 Va. 904, 906, 275 S.E.2d 602, 603 

(1981)). 

 In this case, appellant committed multiple direct acts 
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toward the consummation of distribution of cocaine. As the 

Commonwealth contends, appellant performed all necessary steps to 

complete the offense except for the actual presentation of the 

cocaine. Appellant actively participated in an encounter with 

the undercover officers behind the apartment building; he 

described the cocaine to the officers; he made an offer to the 

officers; he accepted payment for the cocaine; he left his 

wrist-watch as collateral while he went to retrieve the cocaine; 

and he gave assurances that the cocaine would be ready for 

delivery in a few minutes. The trial court reasonably inferred 

from the circumstances that the only reason the last step of the 

transaction was not completed was because a third person 

recognized the officers and privately informed appellant of their 

status. 

 It matters not, as appellant argues, that he did not 

actually possess any cocaine during the series of events. Lewis, 

15 Va. App. at 341, 423 S.E.2d at 374. Appellant's unequivocal 

actions went beyond mere preparation to distribute cocaine; his 

direct actions amounted to a commencement of the consummation of 

the sale of cocaine to the officers. See United States v. 

Mandujano, 449 F.2d 370 (5th Cir. 1974), cert. denied, 419 U.S. 

1114 (1975). 

 Accordingly, we affirm appellant's conviction. 

Affirmed.