Barber v. Com.

• Decision Date: 06 October 1987
• Docket Number: No. 0054-86-2,0054-86-2
• Parties: Oscar Marion BARBER v. COMMONWEALTH of Virginia. Record
• Court: Virginia Court of Appeals

Page 888

360 S.E.2d 888

5 Va.App. 172

Oscar Marion BARBER v. COMMONWEALTH of Virginia.

Record No. 0054-86-2.

Court of Appeals of Virginia.

Oct. 6, 1987.

Murray J. Janus (Dennis W. Dohnal, Bremner, Baber & Janus, Richmond, on brief), for appellant.

Eugene Murphy, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellee.

Present: BARROW, DUFF and COLE, JJ.

DUFF, Judge.

Oscar Marion Barber appeals from a conviction of conspiracy to distribute more than five pounds of marijuana in violation of Code §§ 18.2-248.1 and 18.2-256. He contends that the judgment should be reversed because: (1) the evidence was insufficient as a matter of law to support the conspiracy conviction; (2) the trial court erred by admitting irrelevant and prejudicial evidence of drug activities of alleged coconspirators; (3) the trial court erred by admitting evidence of similar acts by him and others that were irrelevant and prejudicial; and (4) the evidence was insufficient to establish venue in Henrico County. We find no reversible error and affirm the conviction.

Under familiar principles of appellate review, we examine the evidence in the light most favorable to the Commonwealth, granting it all reasonable inferences fairly deducible therefrom. Dukes v. Commonwealth, 227 Va. 119, 122, 313 S.E.2d 382, 383 (1984); Crumble v. Commonwealth, 2 Va.App. 231, 233, 343 S.E.2d 359, 361 (1986). A conviction will be affirmed unless it appears from the evidence that it is plainly wrong or without evidence to support it. Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975); Henry v. Commonwealth, 2 Va.App. 194, 197, 342 S.E.2d 655, 656 (1986).

The record reveals that in early June 1983, Barber asked David Broughman about a place where he could store marijuana. In response to this inquiry, Broughman introduced Barber to Ronald Leonituk. Leonituk owned a farm in James City County and had previously stored marijuana for Broughman. Barber and Leonituk agreed that the latter would store marijuana in his basement for $10 a pound. Three weeks later, approximately 800 pounds of marijuana were delivered in a recreational vehicle driven by Robert Brent. The marijuana was packaged in twenty-three bags, each weighing thirty-five to forty pounds. Barber helped unload the bags from the vehicle and then returned a few days later to weigh the marijuana and to give Leonituk a partial payment of $2,000.

In late July 1983, Broughman purchased approximately 500 pounds of marijuana from William Berger and stored it at William Messer's home in Henrico County. Broughman, who was serving a jail sentence on a work release basis, weighed and repackaged the marijuana and subsequently made several trips to pick up various quantities for distribution and sale. On August 4, 1983, Broughman decided to flee the area. He took with him as many bales of marijuana as he could fit into his vehicle and left approximately 150 pounds with Messer, instructing him to sell it.

When Barber learned that Broughman had left, he asked Leonituk to find out who owed Broughman money. Apparently Broughman owed Barber money for drugs that had been delivered on consignment. Leonituk visited various individuals without results; however, he did learn of the 150 pounds that Broughman had left at Messer's residence. He related this information to Barber, who then instructed him to pick up the 150 pounds and store it with the marijuana that was already housed in his basement.

Approximately two days later, Barber and Leonituk became concerned that the police might come to investigate Broughman's flight. Therefore, they decided to move the marijuana to Carl Soles' home in King and Queen County. Soles met Barber and Leonituk the following Saturday evening, and loaded part of the marijuana into the back of Soles' pickup truck, covered it with plywood and a mattress, and transported it to his residence. At this time, Barber gave Leonituk $6,000 and four pounds of marijuana as compensation for the use of his basement. Leonituk also took twenty-three pounds, which he subsequently sold at $600 per pound and then remitted $500 per pound to Barber.

Soles received $10,000 for storing the marijuana for Barber for approximately two or three weeks. During that time, Barber made several trips to retrieve one or two bales until the entire amount was removed from Soles' residence.

Evidence was also presented regarding a prior transaction involving Soles, Barber, and Broughman that occurred in New Kent County in February 1983 (New Kent conspiracy). ¹ The pertinent facts were that Barber arranged for Soles to store and distribute marijuana for $10,000; that Barber removed several bales of marijuana from Soles' garage over a four- to six-week period and delivered them to Broughman; and that Barber and Broughman agreed that the latter would sell marijuana on a consignment basis. Barber objected to this evidence on the ground that it was irrelevant to the Henrico County conspiracy. The trial court overruled the objection, holding that it was relevant to show the nexus between the parties and that it was admissible to prove Barber's intent or common scheme or plan.

I.

Barber contends that the evidence was insufficient as a matter of law to establish that he conspired to distribute 950 pounds of marijuana. Specifically, he argues that the evidence that Leonituk obtained approximately 150 pounds of marijuana from Messer's residence upon his instructions was insufficient to constitute part of the alleged conspiracy.

"Conspiracy is defined as 'an agreement between two or more persons by some concerted action to commit an offense.' " Cartwright v. Commonwealth, 223 Va. 368, 372, 288 S.E.2d 491, 493 (1982) (quoting Falden v. Commonwealth, 167 Va. 542, 544, 189 S.E. 326, 327 (1937)); see Amato v. Commonwealth, 3 Va.App. 544, 551, 352 S.E.2d 4, 8 (1987). A conspiracy is committed when the agreement to commit the offense is complete. The initiation of an overt act in furtherance of the commission of the substantive offense is not required. Ramsey v. Commonwealth, 2 Va.App. 265, 270, 343 S.E.2d 465, 469 (1986).

The elements of a conspiracy may be proved by circumstantial evidence. Wright v. Commonwealth, 224 Va. 502, 505, 297 S.E.2d 711, 713 (1982). "[A] common purpose and plan may be inferred from a development and collocation of circumstances." United States v. Godel, 361 F.2d 21, 23 (4th Cir.), cert. denied, 385 U.S. 838, 87 S.Ct. 87, 17 L.Ed.2d 72 (1966) (quoting Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942)). "Where it is shown that the defendants by their acts pursued the same object, one performing one part and the others performing another part so as to complete it or with a view to its attainment, the jury will be justified in concluding that they were engaged in a conspiracy to effect that object." Amato v. Commonwealth, 3 Va.App. 544, 552, 352 S.E.2d 4, 9 (1987) (quoting 16 Am.Jur.2d Conspiracy § 42 (1979)).

Based upon our review of the record, we find that there is ample evidence from which the jury could conclude that Barber conspired to distribute both the 800 pounds originally stored by Leonituk in James City County and the 150 pounds moved by Leonituk at Barber's direction from Messer's house in Henrico County to Leonituk's residence. The sequence of events supports the inference that Barber acted in concert with Leonituk and others to receive, transport, and store the marijuana with the intent to distribute it.

Barber contends that the two transactions were improperly joined in one conspiracy. In determining whether the prosecution has demonstrated a single conspiracy or multiple conspiracies, the Fourth Circuit has employed a flexible application of the "totality of circumstances" test. In United States v. MacDougall, 790 F.2d 1135 (4th Cir.1986), the court identified the following factors as probative to this determination: (1) time periods in which the activities occurred; (2) the statutory offenses as charged in the indictments; (3) the places where the activities occurred; (4) the persons acting as coconspirators; and (5) the overt acts or any other descriptions of the offenses charged which indicate the nature and scope of the activities to be prosecuted. Id. at 1144.

In applying these factors to the present case, we find that the jury could properly infer from the totality of the circumstances that the Commonwealth demonstrated a single conspiracy. Each transaction involved Barber, Leonituk, and others and occurred at approximately the same time, and resulted in the commingling of the two loads of marijuana. The nature and scope of the activities set forth in the indictment involved the identical offenses of possession and distribution of marijuana. A pattern of mutual cooperation took place among the various parties. Both transactions involved an agreement between Barber and Leonituk in which Leonituk agreed to store marijuana for Barber until Barber distributed it. Accordingly, we find that the evidence was sufficient as a matter of law to establish that the activities relating to the marijuana obtained from the Messer residence were acts in furtherance of a single conspiracy.

II.

Barber contends that the trial court erred in admitting evidence of the drug activities of his alleged coconspirators, Broughman, Berger, Messer, and Leonituk. Specifically, he objects to the testimony regarding Broughman's purchase of 500 pounds of marijuana from Berger, which was stored at Messer's residence in Henrico County and then picked up by Leonituk and placed in his basement. When a conspiracy has been proven, "the acts and declarations of any of the conspirators, in furtherance of the object of the conspiracy, are admissible evidence against each and all of them, though such acts and declarations were not done and said in the presence of all." Amato, 3 Va.App. at 552, 352 S.E.2d at 9 (quoting Sands v. Commonwealth, 62 Va. (21...