Cosby v. Commonwealth, Record No. 3132-03-2 (VA 4/26/2005), Record No. 3132-03-2.
| Decision Date | 26 April 2005 |
| Docket Number | Record No. 3132-03-2. |
| Court | Virginia Supreme Court |
| Parties | RONALD DOUGLAS COSBY v. COMMONWEALTH OF VIRGINIA. |
Appeal from the Circuit Court of the City of Richmond, Margaret P. Spencer, Judge.
Gregory W. Franklin, Senior Appellate Defender (Office of the Public Defender, on briefs), for appellant.
Donald E. Jeffrey, III, Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.
Present: Judges Bumgardner, Clements and McClanahan.
Ronald Douglas Cosby (appellant) was convicted in a bench trial1 of conspiracy to distribute heroin in violation of Code § 18.2-22. On appeal, appellant contends the evidence was insufficient, as a matter of law, to sustain his conviction because the Commonwealth failed to prove beyond a reasonable doubt that he entered into an agreement to distribute drugs to a third party. Because we find the evidence insufficient, as a matter of law, to support the conviction, we reverse and dismiss.
As the parties are fully conversant with the record in this case, and because this memorandum opinion carries no precedential value, this opinion recites only those facts and incidents of the proceedings as are necessary to the parties' understanding of the disposition of this appeal.
When sufficiency of the evidence is challenged on appeal, the evidence must be viewed in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom. Lea v. Commonwealth, 16 Va. App. 300, 303, 429 S.E.2d 477, 479 (1993); Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975). "`In so doing, we must discard the evidence of the accused in conflict with that of the Commonwealth, and regard as true all the credible evidence favorable to the Commonwealth and all fair inferences that may be drawn therefrom.'" Watkins v. Commonwealth, 26 Va. App. 335, 348, 494 S.E.2d 859, 866 (1998) (quoting Cirios v. Commonwealth, 7 Va. App. 292, 295, 373 S.E.2d 164, 165 (1988)); see also Lea, 16 Va. App. at 303, 429 S.E.2d at 479.
So viewed, the evidence presented at trial established that on March 13, 2003, Detective Frank Misiano and an informant were involved in an undercover narcotics operation in Richmond. They sat in an unmarked vehicle, parked in a gas station parking lot across the street from a fast-food restaurant. Daryl Lewis approached Misiano's vehicle on foot and, after a short conversation, Misiano gave Lewis two "marked" twenty-dollar bills for the purchase of heroin.
Lewis then walked across the street to the restaurant parking lot, directly to a spot sixty feet away where appellant was standing. Lewis and appellant had an "exchange," during which Lewis handed money to appellant, and appellant put a piece of aluminum foil containing heroin in Lewis's hand. Lewis returned to Misiano's vehicle and gave the heroin to Misiano. No more than five other people were in the restaurant parking lot at the time of these events, and Lewis and appellant remained visible to Misiano throughout.
After receiving the heroin from Lewis, Misiano notified other police officers who, less than two minutes after Misiano's call, arrested Lewis and appellant and recovered both marked twenty-dollar bills; appellant had one marked bill in his right front pocket, and Lewis either had possession of the other or it was on the ground near the scene.2 Appellant also had $40 in his left pocket and $442 in his left hand.
Appellant's testimony at trial contradicted the Commonwealth's evidence in several respects. He testified that he knew Lewis and that he walked past him in the parking lot on the day of the offense, but that the two merely struck each other's fists as a greeting. He further testified that Lewis did not give him money and that he did not give Lewis heroin. Appellant also maintained that he never agreed with Lewis to sell heroin and that he was unaware of Lewis's activities. Appellant had been convicted of five prior felony drug offenses.
Appellant was convicted of possession of heroin with intent to distribute and conspiracy to distribute heroin. This appeal of the conspiracy conviction followed.3
On appeal, appellant contends the evidence was insufficient, as a matter of law, to sustain his conviction of conspiracy to distribute heroin because the Commonwealth failed to prove there was an agreement between Lewis and him to distribute drugs to a third party.
"When considering on appeal the sufficiency of the evidence presented below, we `presume the judgment of the trial court to be correct' and reverse only if the trial court's decision is `plainly wrong or without evidence to support it.'" Kelly v. Commonwealth, 41 Va. App. 250, 257, 584 S.E.2d 444, 447 (2003) (en banc) (quoting Davis v. Commonwealth, 39 Va. App. 96, 99, 570 S.E.2d 875, 876-77 (2002)). We will not "substitute our judgment for that of the trier of fact," Wactor v. Commonwealth, 38 Va. App. 375, 380, 564 S.E.2d 160, 162 (2002), but will determine "`whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt,'" Kelly, 41 Va. App. at 257, 584 S.E.2d at 447 (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)).
"`Conspiracy is defined as "an agreement between two or more persons by some concerted action to commit an offense."'" Feigley v. Commonwealth, 16 Va. App. 717, 722, 432 S.E.2d 520, 524 (1993) (quoting Wright v. Commonwealth, 224 Va. 502, 505, 297 S.E.2d 711, 713 (1982) (quoting Falden v. Commonwealth, 167 Va. 542, 544, 189 S.E. 326, 327 (1937))). "`There can be no conspiracy without an agreement, and the Commonwealth must prove beyond a reasonable doubt that an agreement existed.'" Id. (quoting Floyd v. Commonwealth, 219 Va. 575, 580, 249 S.E.2d 171, 174 (1978)). "An agreement requires plurality of intent, a meeting of the minds." Fortune v. Commonwealth, 12 Va. App. 643, 647, 406 S.E.2d 47, 49 (1991). "`It must be shown that the requisite intent existed as to at least two persons,'" id. (quoting W. LaFave & A. Scott, Criminal Law § 461 (1972)), one of whom must be the party charged, see Amato v. Commonwealth, 3 Va. App. 544, 553, 352 S.E.2d 4, 9 (1987); Sands v. Commonwealth, 62 Va. (21 Gratt.) 871, 899-900 (1872). The agreement is the essence of the conspiracy offense. Fortune, 12 Va. App. at 647, 406 S.E.2d at 48.
A conspiracy will not arise solely from appellant's cash-for-heroin transaction with Lewis, since a "`single buyer-seller relationship, standing alone, does not constitute a conspiracy.'" Edwards v. Commonwealth, 18 Va. App. 45, 47, 441 S.E.2d 351, 353 (1994) (quoting Zuniga v. Commonwealth, 7 Va. App. 523, 528, 375 S.E.2d 381, 385 (1988)). Moreover, the mere fact that appellant sold heroin to Lewis that was immediately thereafter distributed to Misiano will not constitute a conspiracy to distribute drugs to Misiano if the initial transaction "lacks the essential element of an agreement . . . to commit [the] subsequent distribution offense together." Feigley, 16 Va. App. at 722, 432 S.E.2d at 524. Conspiracy here must therefore arise—if at all—out of appellant's agreement to the illicit transaction between Lewis and Misiano.
"Proof of an explicit agreement is not required, and the Commonwealth may, and frequently must, rely on circumstantial evidence to establish the conspiracy." Combs v. Commonwealth, 30 Va. App. 778, 787, 520 S.E.2d 388, 392 (1999). "`[A] conspiracy may be inferred from the overt actions of the parties, and a common purpose and plan may be inferred from a development and collocation of circumstances.'" Id. at 787, 520 S.E.2d at 392-93 (alteration in original) (quoting McQuinn v. Commonwealth, 19 Va. App. 418, 425, 451 S.E.2d 704, 708 (1994)). When it is shown by the defendant's conduct that the actors "pursued the same object, one performing one part and [another] performing another part so as to complete it or with a view to its attainment, the [fact finder] will be justified in concluding that they were engaged in a conspiracy to effect that object." Amato, 3 Va. App. at 552, 352 S.E.2d at 9.
A conspiracy to distribute drugs can be shown by a series of drug transactions where one person sells drugs to a buyer who, in turn, resells them to a third party. The fact finder may infer from the seller's knowledge that the drugs are being resold an agreement between the seller and buyer to supply drugs for distribution.
Feigley, 16 Va. App. at 722, 432 S.E.2d at 524 (citations omitted); see also Zuniga, 7 Va. App. at 528-29, 375 S.E.2d at 384-85 ().
We further note that, "when a conviction is based on circumstantial evidence, the evidence `must be consistent with guilt and inconsistent with innocence and must exclude every reasonable hypothesis of innocence.'" Feigley, 16 Va. App. at 724, 432 S.E.2d at 525 (quoting Bishop v. Commonwealth, 227 Va. 164, 169, 313 S.E.2d 390, 393 (1984)); see also Coleman v Commonwealth, 226 Va. 31, 53, 307 S.E.2d 864, 876 (1983). "Although the Commonwealth is not required to disprove every remote possibility of innocence, it must disprove those theories of innocence that `flow from the evidence itself.'" Feigley, 16 Va. App. at 724, 432 S.E.2d at 525 (quoting Black v. Commonwealth, 222 Va. 838, 841, 284 S.E.2d 608, 609 (1981)); see also Hamilton v. Commonwealth, 16 Va. App. 751, 755, 433 S.E.2d 27, 29 (1993) ().
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