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                                                                  Tuesday19th

                      December, 1995.



Bobbie L. Cotter, s/k/a
Bobby L. Cotter,                                                                     Appellant,

against       Record No. 0367-93-2
                      Circuit Court Nos. F212-92 and F213-92

Commonwealth of Virginia,                                                     Appellee.


                      Upon a Rehearing En Banc

       Before Chief Judge Moon, Judges Baker, Benton, Coleman,
      Willis, Elder, Bray, Fitzpatrick, Annunziata and Overton


                      H. Otis Brown for appellant.

                      Leah A. Darron, Assistant Attorney General
                      (James S. Gilmore, III, Attorney General;
                      Robert B. Beasley, Jr., Assistant Attorney
                      General, on brief), for appellee.


         On December 13, 1994, a panel of this Court affirmed
appellant's conviction for conspiracy to distribute cocaine and
reversed his conviction for distribution of cocaine.  Cotter v.
Commonwealth, 19 Va. App. 382, 452 S.E.2d 20 (1994).  A rehearing en
banc was granted by this Court and heard on November 16, 1995.  This
case is controlled by McQuinn v. Commonwealth, 20 Va. App. 753, 460
S.E.2d 624 (1995)(en banc), which was decided subsequent to the panel
decision.  Here, as in McQuinn, appellant moved to strike the evidence
at the conclusion of the Commonwealth's case but failed to do so at
the conclusion of all the evidence.  Appellants in both cases moved to
set aside the jury's verdict.  In McQuinn the only reason given for
the motion to set aside the verdict was that the verdict was "contrary
to the law and the evidence."  In the case before us, the court's
order stated that the motion to set aside the verdict was made "for
the reasons stated to the record."  The record, however, contains no
"reasons" for the motion and at oral argument counsel conceded that
the reason given was that the verdict was contrary to the law and the
evidence.
         For the foregoing reasons and the reasons stated in McQuinn,
the opinion previously rendered by a panel of this Court is withdrawn,
the mandate entered on that date is vacated and the judgment of the
trial court is affirmed.  The appellant shall pay to the Commonwealth
thirty dollars damages.
____________________
Benton, J., dissenting.


         I do not agree that McQuinn v. Commonwealth, 20 Va. App.
753, 460 S.E.2d 624 (1995)(en banc), compels the result that the
majority reaches in this case.  That decision addressed the following
procedural circumstance:
               At the conclusion of the presentation of
            the Commonwealth's evidence, McQuinn moved
            the trial court to strike the evidence on
            the ground that it was insufficient to prove
            the charges against him.  The trial court
            denied that motion and McQuinn presented
            evidence.  He did not renew his motion to
            strike at the conclusion of all the
            evidence.

Id. at 755, 460 S.E.2d at 625.  In McQuinn, we held "that by
presenting evidence, McQuinn waived his motion to strike the evidence
and that by failing to present the sufficiency issue to the trial
court in the context of all the evidence, he failed to preserve that
issue for appeal."  Id.
         Nothing in this Court's en banc opinion, or in the panel
opinion that it overturned, see McQuinn v. Commonwealth, 19 Va. App.
418, 451 S.E.2d 704 (1994), indicated that McQuinn's counsel made a
motion to set aside the verdict.  Indeed, the panel's opinion was
clearly based upon the premise that "[a]lthough the defendant did not
move to strike the prosecution's evidence at the conclusion of his own
evidence, he did make such a motion at the conclusion of the
prosecution's evidence."  Id. at 420, 451 S.E.2d at 705.  Solely upon
that procedural posture, the panel's majority ruled that "the
defendant's motion at the conclusion of the Commonwealth's evidence
was sufficient to preserve the question for review on appeal."  Id.
Furthermore, the opinion dissenting from the panel's decision did not
refer to a motion to set aside the verdict.  The dissent also was
premised upon "the case in which the defendant did not make a motion
to strike at the conclusion of all the evidence or did not make a
motion to set aside the verdict."  19 Va. App. at 431, 451 S.E.2d at
711.
         Although this Court's en banc decision in McQuinn reversed
the panel's decision, this Court did not preclude review when the
sufficiency of the evidence was challenged in a motion to set aside
the verdict.  It stated the following rule:
            A motion to strike, made at the conclusion
            of the Commonwealth's evidence, addresses
            the sufficiency of proof within the context
            of that evidence.  If the accused elects not
            to stand on his motion and presents
            evidence, he thereby creates a new context
            in which the court, if called upon to do so,
            must judge the sufficiency of the evidence.
            Thus, the original motion to strike is no
            longer applicable because it addresses a
            superseded context.  If the accused intends
            to present the issue of sufficiency to the
            trial court at the conclusion of all the
            evidence, he must do so by new or renewed
            motion, made in the context of all the
            evidence.

                McQuinn failed to present the sufficiency
            issue to the trial court in a context upon
            which it could rule and thereby failed to
            preserve that issue for appeal.

20 Va. App. at 757, 460 S.E.2d at 626.
         The principle is well established in Virginia that a motion
to set aside a verdict is adequate to challenge the sufficiency of the
evidence.
            While a motion to strike is an appropriate
            way of testing the sufficiency of relevant
            evidence to sustain an adverse verdict, it
            is not the only way.  It has long been the
            practice in this jurisdiction to test the
            sufficiency of such evidence by a motion to
            set aside the verdict.

Gabbard v. Knight, 202 Va. 40, 43, 116 S.E.2d 73, 75 (1960).
         The record establishes that at the conclusion of the
Commonwealth's case, Cotter's counsel made motions to strike both the
conspiracy charge and the distribution charge.  After the jury
returned its verdict, Cotter's counsel again challenged the
sufficiency of the evidence when he "moved to set aside the jury's
verdict for the reasons stated to the record."  The trial judge
overruled the motion.  Thus, this record clearly establishes that the
issue of the sufficiency of the evidence was renewed for the reasons
previously stated, was ruled upon by the trial judge, and was
appropriately preserved for appeal.
         For the reasons set forth in the previous panel decision of
this case, see Cotter v. Commonwealth, 19 Va. App. 382, 452 S.E.2d 20
(1994), I would hold that the issues of sufficiency of the evidence
were properly preserved for appeal, that the evidence supports the
conviction for conspiring to distribute cocaine, and that the evidence
did not prove beyond a reasonable doubt that Cotter distributed
cocaine.
____________________

         The trial court shall allow court-appointed counsel for the
appellant a total fee of $600 for services rendered the appellant on
this appeal, in addition to counsel's costs and necessary direct out-
of-pocket expenses.
         The Commonwealth shall recover of the appellant the amount
paid court-appointed counsel to represent him in this proceeding,
counsel's costs and necessary direct out-of-pocket expenses, and the
fees and costs to be assessed by the clerk of this Court and the clerk
of the trial court.
         This order shall be published and certified to the trial
court.
Costs due the Commonwealth
by appellant in Court of
Appeals of Virginia:

    Attorney's fee     $600.00     plus costs and expenses
    Filing fee           25.00


                     A Copy,

                          Teste:

                                    Cynthia L. McCoy, Acting Clerk

                          By:

                                    Deputy Clerk
          

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