Eric Smith v Commonwealth

COURT OF APPEALS OF VIRGINIA
Present: 	Chief Judge Moon, Senior Judges Cole and Duff
Argued at Richmond, Virginia
ERIC SMITH
v. 	Record No. 2525-94-2 	MEMORANDUM OPINION* BY
CHIEF JUDGE NORMAN K. MOON
COMMONWEALTH OF VIRGINIA 	MARCH 19, 1996
FROM THE CIRCUIT COURT OF CAROLINE COUNTY
J. Peyton Farmer, Judge
Thomas L. Barney (Thomas L. Barney, P.C., on
briefs), for appellant.
Kathleen B. Martin, Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.
Eric Smith challenges the sufficiency of the evidence to
sustain his conviction of distribution of cocaine. 	We hold that
the evidence was sufficient and affirm the conviction.
State Police Special Agent Lloyd Evans testified that on
April 1, 1993, he went to a trailer, in Caroline County,
belonging to Eric Smith. 	The door was answered by a fairly tall
brown skinned female. 	He went inside and saw Eric Smith dressed
in a Chicago Bulls coat, a white cotton shirt, dark trousers, and
sneakers. 	Evans told Smith that he wanted a fifty dollar piece
of crack cocaine. 	Smith went into a back room. 	When he
returned, he placed approximately six pieces of suspected crack
cocaine on a table and told Evans to take his pick. 	Evans took
*Pursuant to Code § 17-116.010 this opinion is not
designated for publication.

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one piece and handed Smith two twenty dollar bills and one ten
dollar bill. 	Evans then left and turned the suspected crack
cocaine over to Special Agent Ray Seal.
Evans testified that he went to the Smith residence at about
9:02 p.m. and left at about 9:04 p.m. 	While there he saw another
young black male, "a light skinned guy," Smith's brother, who
referred to himself as "Coon," and one female who opened the
door.
On cross-examination Evans testified that he returned to
Smith's home one time after the transaction. 	That time Smith
told him that he didn't have anything. 	Several times after that
Evans returned but Eric Smith was not there. 	On one occasion
Evans rode around with Eric Smith's brother, "Coon," looking for
Eric "because his brother said he [Eric] had it, but he just
hadn't gotten there."
State Police Special Agent Raymond A. Seal testified that on
the 1st of April, 1993, he was in the vicinity of Eric Smith's
residence where he and Evans had preplanned to meet after Evans
went to Smith's house. 	At 9:12 p.m. Smith came to his location
and handed him a "block of an off-white solid material." 	Seal
delivered it to the lab which certified that it was cocaine.
The defendant called Leutha Brown who testified that she had
lived with Smith for eight years. 	On May 4, 1994, the date of
the trial, she testified that she remembered April 1, 1993,
because it was April Fool's Day. 	She said that she was home with
Smith and that she never saw Evans come to the house. 	On cross-

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examination she testified that she normally got home about "9:00
p.m., something to 9:00, something after 9:00." 	She didn't
remember what time she got home on April 1. 	She said that
another fellow used to hang out there and that Smith's brother
came to visit.
Smith testified that he had a guy renting from him back on
April 1, 1993, who was renting "maybe two or three days out of
the week and paying $50 a week." 	After Smith was raided by the
police he made the roomer leave. 	Smith said he had never sold
cocaine to Evans. 	He testified that he had never seen Special
Agent Evans "a day in his life."
Elvis "Coon" Smith testified that he was not at his
brother's house on April Fool's Day but was at the shelter in
Fredericksburg. 	He testified he had never seen Evans and never
rode around with Evans looking for Eric Smith. 	On cross-
examination Elvis testified that he was assuming that April 1 was
the day his brother's place was raided by the police. 	He was at
the shelter on the day of the raid. 	Other evidence refuted April
1 as being the date of the raid.
Special Agent Lloyd Evans was called back on rebuttal and
stated that he recognized Elvis Smith as "Coon" Smith, as being a
person who was at the residence on April 1 and as being the
person he rode around with looking for Eric on another day. 	He
particularly remembered that Elvis Smith had a speech impediment.
Evans also testified that Leutha Brown appeared to be the
woman who opened the door for him, but he could not be 100

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percent sure.
Appellant argues that Special Agent Evans should not be
believed because he did not produce for the record careful notes
concerning a description of Smith at the time of the incident on
April 1, 1993.
"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).
Special Agent Evans testified that appellant was the person
who sold cocaine to him. 	The fact finder believed Evans'
testimony and rejected appellant's evidence. 	"The weight which
should be given to evidence and whether the testimony of a
witness is credible are questions which the fact finder must
decide." 	Bridgeman v. Commonwealth, 3 Va. App. 523, 528, 351
S.E.2d 598, 601 (1986). 	Evans' testimony was competent, was not
inherently incredible, and was sufficient to prove that appellant
was the person who sold cocaine to Evans.
Affirmed.