Criminal – Evidence supported drug distribution conviction

Where the defendant argued the evidence was insufficient to support his conviction for possessing a Schedule I or II controlled substance with the intent to distribute, this argument was rejected. The amount of methamphetamine and how it was stored both supported the conviction.

Background

Richard Dennis Lilly appeals his conviction for possessing a Schedule I or II controlled substance with the intent to distribute.

Sufficiency

Lilly contends that the evidence was insufficient to support his conviction “given the lack of any indicia of distribution.” This court disagrees.

Lilly had 28.78 grams of methamphetamine in his possession, worth approximately $1,800 to $2,200. Captain Mann testified as an expert in the “identification of distribution of narcotics.” He said that the street value of one gram of methamphetamine was $80 to $100 and a user would typically consume a daily amount of “a gram or less” to three grams. Mann explained that someone in possession of methamphetamine for personal use did not typically possess a large quantity.

The methamphetamine was contained within two separate ziplock bags, which appeared to Mann “as if the individual had bought the volume or the weight to break it down and sell it to small users.” The fact that other items suggesting distribution, such as baggies or digital scales, were not found with Lilly does not mean as a matter of law that he had no intent to distribute the methamphetamine in his possession.

Accommodation

Lilly argues that the trial court erred by failing to find that he possessed the methamphetamine as an accommodation for another person. He, therefore, concludes that he “could only be convicted of possession with the intent to distribute a Schedule I or II controlled substance as an accommodation.” This argument is legally flawed.

Lilly mischaracterizes accommodation as an element of the offense of possession with intent to distribute. “Code § 18.2-248(D) allows a reduced sentence if a defendant [possesses drugs with the intent to distribute] ‘only as an accommodation to another individual’” without any intent to profit or encourage the use of drugs. This statutory subsection operates as “a partial affirmative defense to mitigate the punishment for the crime of distribution of a controlled substance. It is not a separate offense requiring that the Commonwealth prove different elements.”

So “[w]hether 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.” As a result, in determining Lilly’s guilt or innocence, the trial court properly declined to consider whether Lilly acted to accommodate another individual.

The trial court also did not err in rejecting Lilly’s claim of accommodation when imposing his sentence. “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.” A “claim of accommodation, at most, raise[s] an issue of fact to be resolved by the fact finder.”

The trial court, sitting as the finder of fact, was free to accept or reject the testimony of the witnesses. The court did not give any weight to Mann’s comment that Lilly’s account that he was simply holding the drugs for the other man seemed plausible because it was “premised” on Lilly’s statement after his arrest. And the court found that Lilly’s statement was not “reliable.” Accordingly, Lilly did not successfully rebut the presumption against his claim of accommodation.

Lilly also contends that the trial court misunderstood the law and erroneously stated that an “accommodation require[d] a completed distribution.” This argument is waived under Rule 5A:18 because Lilly did not object at trial when the court made the statement, nor did he argue below that the court had misconstrued the law.

Rather, defense counsel acknowledged that there had been “no actual transaction” and argued that Lilly did not have the intent to distribute because he was simply “holding” the methamphetamine for someone else. Lilly has not asked this court to invoke either the good-cause or ends-of-justice exception contained in Rule 5A:18, and it will not consider those exceptions on its own. The decision is thus affirmed, but is remanded solely for the correction of the apparent clerical errors.

Affirmed and remanded.

Lilly v. Commonwealth, Record No. 1473-25-2, May 26, 2026. CAV (unpublished opinion) (per curiam). From the Circuit Court of the City of Petersburg (Teefey Jr.). (Steven P. Hanna, on brief), for appellant. (Jason S. Miyares, Attorney General; Matthew J. Beyrau, Senior Assistant Attorney General, on brief), for appellee. VLW 026-7-220. 9 pp.

Full-Text Opinion
VLW 026-7-220