COURT OF APPEALS OF VIRGINIA 

Present: Judges Frank, Humphreys and Agee 

Argued at Chesapeake, Virginia 

GARY L. FOSTER 

 OPINION BY 

v. Record No. 2228-01-2 JUDGE G. STEVEN AGEE 

 AUGUST 6, 2002 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF HALIFAX COUNTY 

William L. Wellons, Judge 

 Charles C. Cosby, Jr. (Boone, Beale, Cosby & 

Long, on brief), for appellant. 

 Virginia B. Theisen, Assistant Attorney 

General (Jerry W. Kilgore, Attorney General, 

on brief), for appellee. 

 Gary L. Foster (Foster) was convicted in the Halifax County 

Circuit Court of distribution of cocaine1 in violation of Code 

§ 18.2-248. He was sentenced to a term of two years 

incarceration. Foster appeals his conviction, contending the 

trial court erred (1) by denying his motion to strike the 

evidence as insufficient to establish he committed the 

distribution offense; (2) by failing to find that he established 

an accommodation defense, and (3) in not allowing his 

 1

 The Court notes that the sentencing order entered by the 

trial court indicates that the appellant was found guilty by the 

jury of possess with intent to distribute a Schedule II 

controlled substance - crack cocaine. Accordingly, this case is 

remanded to the trial court for the sole purpose of amending the 

final order to reflect that the appellant was found guilty of 

distribution of cocaine. 
accommodation defense argument to be presented to the jury. For 

the following reasons, we affirm Foster's conviction. 

I. BACKGROUND 

 Joseph Mitchell (Mitchell) worked in an undercover capacity 

with the Halifax County Sheriff's Department making drug buys. 

In that capacity, and under police supervision, Mitchell drove 

to an apartment complex and approached Foster, a juvenile he had 

met previously. Mitchell told Foster he wanted to buy "a quick 

fifty rock" of cocaine. Foster responded, "I'll see if I can 

hook you up," and walked away. Foster returned a few minutes 

later with two men. Foster gave three rocks of cocaine to 

Mitchell, who gave Foster cash. 

 Foster was subsequently arrested and taken before the 

Halifax County Juvenile and Domestic Relations District Court, 

which properly transferred its jurisdiction over the matter to 

the Halifax County Circuit Court. A pretrial hearing was held 

on the Commonwealth's motion in limine, which sought to prohibit 

Foster from arguing accommodation during the guilt determination 

phase of the trial. The trial court granted the motion, ruling 

that the jury would determine Foster's guilt as to the 

distribution charge. If Foster was found guilty, the trial 

judge would then consider the merits of an accommodation defense 

at the sentencing phase pursuant to Code § 16.1-272(A). 

 At trial, Mitchell testified that Foster had handed him the 

drugs and that he gave Foster the money. On cross-examination, 

- 2 -
Mitchell testified that he was not sure where Foster had 

obtained the drugs. Counsel then asked Mitchell if he recalled 

testifying in the juvenile court hearing that the other men with 

Foster had passed the drugs to Foster before Foster gave him the 

drugs. Mitchell testified that he did not "remember that." 

Counsel played the tape of the juvenile court hearing, and 

Mitchell's recollection was refreshed. Foster presented no 

evidence. The jury found Foster guilty of distribution of 

cocaine. 

 At his sentencing hearing, Foster testified in his own 

behalf. According to Foster, he brought two men to Mitchell's 

car and then "walked off." He denied passing any drugs to 

Mitchell or taking any money from him. 

II. SUFFICIENCY OF THE EVIDENCE TO ESTABLISH 

DISTRIBUTION OFFENSE 

 On appeal, Foster challenges the sufficiency of the 

evidence to establish he distributed the cocaine. Specifically, 

he contends Mitchell's testimony was not credible. For the 

following reasons, we find this issue to be without merit. 

 When considering the sufficiency of the evidence on appeal 

in a criminal case, we view the evidence in the light most 

favorable to the Commonwealth, granting to it all reasonable 

inferences fairly deducible therefrom. See Higginbotham v. 

Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975). On 

review, we do not substitute our own judgment for that of the 

- 3 -
trier of fact. See Cable v. Commonwealth, 243 Va. 236, 239, 415 

S.E.2d 218, 220 (1992). 

 Witness credibility, the weight accorded the testimony and 

the inferences to be drawn from proven facts are matters to be 

determined by the fact finder. See Long v. Commonwealth, 8 

Va. App. 194, 199, 379 S.E.2d 473, 476 (1989). The trial 

court's judgment will not be set aside unless it appears that 

the judgment is plainly wrong or without supporting evidence. 

See Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 

418 (1987). 

 The evidence supports the trial court's judgment. Mitchell 

testified that upon his request for a "fifty rock" of cocaine, 

Foster left but soon returned with two other men. Mitchell then 

testified that only Foster handed him the three rocks of cocaine 

and he handed the money only to Foster. This evidence is 

sufficient to support the trial court's judgment. 

 Foster, however, contends Mitchell's desire to have his 

undercover work help him secure a job in law enforcement 

undermined his credibility. Witness credibility is not for us 

to determine. A witness' credibility and the weight accorded to 

his testimony are matters solely for the fact finder "who has 

the opportunity to see and hear the witness[]." Commonwealth v. 

Taylor, 256 Va. 514, 518, 506 S.E.2d 312, 314 (1998). 

 Therefore, the trial court did not err in finding the 

evidence sufficient to support a determination of guilt. 

- 4 -
III. THE TRIAL COURT'S DETERMINATION OF 

THE ACCOMMODATION DEFENSE 

 Foster also argues the trial judge erred in ruling that he, 

and not the jury, was to make the decision as to whether or not 

Foster acted to accommodate Mitchell as opposed to distributing 

the cocaine for personal gain. He contends the jury as the fact 

finder at trial should have considered this issue and not the 

trial judge at sentencing. He further argues that the trial 

judge's actions amount to the denial of equal protection. For 

the following reasons, we affirm the trial court. 

 First, we note that Foster's claim of an equal protection 

violation is an argument he makes for the first time on appeal. 

Pursuant to Rule 5A:18, we will not consider this argument. 

"The Court of Appeals will not consider an argument on appeal 

which was not presented to the trial court." Ohree v. 

Commonwealth, 26 Va. App. 299, 308, 494 S.E.2d 484, 488 (1998).2

 Foster also contends that his accommodation defense was a 

factual determination to be made by the jury. We disagree. 

 An accommodation defense is a defense that pertains only to 

the penalty imposed on one found guilty of drug distribution. 

See Code § 18.2-248(D); Stillwell v. Commonwealth, 219 Va. 214, 

223, 247 S.E.2d 360, 365 (1978) (an accommodation defense "is 

relevant to the determination of the proper degree of 

 2

 Foster made no argument that the "ends of justice" 

exception to Rule 5A:18 should apply, and we see no basis for 

its application in this case. 

- 5 -
punishment, but only after guilt has been established"); Barlow 

v. Commonwealth, 26 Va. App. 421, 430, 494 S.E.2d 901, 905 

(1998) (the code section "provides for mitigation of punishment 

where one convicted of possession with intent to distribute is 

found not 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'" (quoting Stillwell, 

219 Va. at 219-20, 247 S.E.2d at 364)). Whether a defendant 

acted only to accommodate another is a determination to be made 

after guilt has been decided and in contemplation of the penalty 

to be imposed. 

 While Foster was entitled to have a jury determine whether 

or not he was guilty of committing narcotics distribution, the 

determination of a penalty was required to be made by the trial 

judge without a recommendation by the jury.3 Code § 16.1-272(A) 

 3

 Foster, in his brief, recognizes these principles, yet 

argues a different process should have been applied in which the 

jury determined whether he established an accommodation defense. 

He does not provide any legal support for this proposition; he 

simply cites Brown v. Commonwealth, 215 Va. 753, 213 S.E.2d 764 

(1975), in his argument. That case, however, in which the 

Supreme Court of Virginia noted that the issue of accommodation 

is one within the province of the jury to determine, did not 

involve a transferred juvenile and did not involve a bifurcated 

trial procedure. Further, in Stillwell, 219 Va. 214, 247 S.E.2d 

360, the Supreme Court explained that an accommodation defense 

is a matter to be considered during the sentencing phase of a 

trial and not the guilt determination phase: 

While there are dicta in our opinions in 

Jefferson [v. Commonwealth, 214 Va. 432, 201 

S.E.2d 749 (1974),] . . . and Brown . . . 

that could lead to a contrary interpretation 

- 6 -
is manifestly clear that "the court shall fix the sentence 

without the intervention of a jury" in a juvenile case. While 

Foster apparently makes an argument of first impression 

regarding juvenile sentencing in the context of the 

accommodation defense, his argument is clearly negated by the 

plain language of Code § 16.1-272(A). Thus, the trial judge, 

the fact finder at the penalty phase of the juvenile's trial, 

was required to make the factual determinations regarding the 

punishment to be imposed on Foster, which included the 

 

. . . [t]he provisions of § 18.2-248(a), 

which deal with the reduced penalty 

contingent upon proof of an accommodation 

gift, distribution or possession of 

marijuana operate only to mitigate the 

degree of criminality or punishment . . . . 

* * * * * * * 

The statutory scheme behind Code § 18.2-248 

provides that once the guilt of the 

defendant has been established (a 

determination completely independent of the 

profit-accommodation distinction), a second 

determination of the proper punishment is to 

be made. This statute and § 18.2-263 place 

the burden of proving the existence of an 

accommodation distribution (and the right to 

the lesser penalty) to the trier of fact on 

the shoulders of the defendant. In other 

words, the statute contains a presumption 

against an accommodation distribution to the 

extent that it is relevant to the 

determination of the proper degree of 

punishment, but only after guilt has been 

established. 

Id. at 222-23, 247 S.E.2d at 365. 

- 7 -
determination of whether Foster established an accommodation 

defense. 

 Therefore, we find the trial judge was correct in ruling 

the issue of accommodation was to be considered by him alone at 

sentencing and not by the jury during the guilt determination 

phase of the proceedings. 

IV. SUFFICIENCY OF THE ACCOMMODATION DEFENSE 

Foster also challenges the trial court's determination that 

he did not establish an accommodation defense permitting the 

mitigation of the sentence for his distribution conviction. He 

contends the evidence supports an accommodation defense because 

it showed that he neither received nor expected to receive any 

of the purchase money. We disagree. 

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

where one convicted of distribution is found not to be a drug 

dealer, "but by an individual citizen . . . motivated by a 

desire to accommodate a friend, without any intent to profit or 

to induce or to encourage the use of drugs." Stillwell, 219 Va. 

at 219, 247 S.E.2d at 364. Code § 18.2-248(D) establishes a 

presumption against an accommodation distribution and requires 

the defendant to prove accommodation by a preponderance of the 

evidence. See id. at 219, 225, 247 S.E.2d at 364, 367. Foster 

did not meet this burden. 

 Foster testified that he did not know Mitchell personally, 

but they had been acquainted. According to Foster, Mitchell 

- 8 -
asked him for the cocaine and he merely arranged for others to 

make the sale to Mitchell. He testified that he had no contact 

with the drugs or the money that was exchanged. This testimony 

was in direct conflict with Mitchell's. Foster's claim of 

accommodation, at most, raised an issue of fact to be resolved 

by the fact finder. The trial judge, as fact finder in the 

sentencing phase, chose not to believe Foster's testimony. We 

cannot say this was error, as a witness' credibility and the 

weight accorded to his testimony are matters solely for the fact 

finder. Mitchell's testimony was not inherently incredible as 

to render it unworthy of belief as a matter of law. See

Lockhart v. Commonwealth, 34 Va. App. 329, 343, 542 S.E.2d 1, 

7-8 (2001). 

 Accordingly, we affirm the decisions of the trial court. 

Affirmed. 

- 9 -