Williams v. Com., 1484-88-3

• Decision Date: 01 July 1991
• Docket Number: No. 1484-88-3,1484-88-3
• Citation: 407 S.E.2d 319,12 Va.App. 912
• Parties: Ronald E. WILLIAMS v. COMMONWEALTH of Virginia. Record
• Court: Virginia Court of Appeals

Page 319

407 S.E.2d 319

12 Va.App. 912

Ronald E. WILLIAMS v. COMMONWEALTH of Virginia.

Record No. 1484-88-3.

Court of Appeals of Virginia.

July 1, 1991.

[12 Va.App. 913] Burton L. Albert (Kielkopf, Albert and Caldwell, on briefs), for appellant.

John H. McLees, Jr., Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., Richard A. Conway, Asst. Atty. Gen., on brief), for appellee.

Present: KOONTZ, C.J., and BARROW, BENTON, COLEMAN, DUFF, KEENAN, MOON, COLE ^* and WILLIS, JJ.

UPON HEARING EN BANC

KEENAN, Judge.

Ronald E. Williams appeals his jury conviction of seven counts of conspiracy to deliver marijuana to an inmate and one count of attempted delivery of marijuana to an inmate. He raises the following issues on appeal: (1) whether the trial court erred in failing to dismiss six of the seven conspiracy indictments because the evidence proved, at most, a single conspiracy to commit multiple deliveries of marijuana rather than seven separate conspiracies to deliver marijuana; (2) whether the evidence was sufficient to sustain the conviction of attempted delivery of marijuana; and (3) whether the indictments were fatally deficient in that Williams was charged pursuant to Code § 18.2-474.1 rather than Code § 53.1-203(9). Because we find that the evidence adduced at trial was sufficient to support a finding of guilt only with respect to two of the conspiracy indictments and the indictment for the attempted delivery of marijuana, we reverse and dismiss Williams' convictions as to the remaining five conspiracy indictments.

I.

Williams was indicted on seven counts of conspiracy to deliver marijuana to an inmate during the period of May 1, 1987 through July 11, 1987, and one count of attempted delivery on July 17, 1987. Throughout this time, Williams was an inmate at the Smith Mountain Lake Correctional Unit, Camp 24.

The evidence at trial showed that Deborah Locher, the wife of inmate Thomas Locher, agreed to bring marijuana to her husband in Camp 24. She spoke with Williams by phone and he told Deborah to pick up the marijuana at his mother's address. Deborah brought marijuana into the camp on four occasions beginning the first weekend in May. At the end of May, Deborah told her husband that she would no longer bring the marijuana to him. Tammy Barton, the girlfriend of inmate Jackie Smith, began bringing the marijuana in at that time. Deborah took Tammy to Mrs. Williams' home to introduce them. Tammy also spoke with Williams once to get directions to the house. Tammy brought marijuana to the camp between the end of May and July 17, 1987, at which time she was arrested.

Smith testified that he would give the marijuana to Thomas Locher, who in turn gave it to Williams. Smith and Locher jointly received one-quarter of an ounce of marijuana for each ounce brought into the camp. Smith testified that his agreement with Locher was that the women would bring the marijuana in every weekend. Smith also testified that at the beginning of June, Locher and Williams had an argument. As part of the reconciliation, the agreement between Locher and Williams changed so that the amount of marijuana brought in each weekend varied.

II.

Williams' first argument is that the trial court erred in denying his motion to dismiss six of the seven conspiracy indictments on the ground that the evidence proved at most a single on-going conspiracy, not seven individual conspiracies. He argues that the separate indictments subjected him to multiple punishments for the same offense in violation of his fifth amendment rights.

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)). The existence of the agreement is the essence of the conspiracy offense. Amato v. Commonwealth, 3 Va.App. 544, 553, 352 S.E.2d 4, 9 (1987). Thus, " 'the Commonwealth must prove beyond a reasonable doubt that an agreement existed.' " Zuniga v. Commonwealth, 7 Va.App. 523, 527-28, 375 S.E.2d 381, 384 (1988) (quoting Floyd v. Commonwealth, 219 Va. 575, 580, 249 S.E.2d 171, 174 (1978)); see also Poole v. Commonwealth, 7 Va.App. 510, 513, 375 S.E.2d 371, 372 (1988) (citations omitted).

In the case before us, we find that there is sufficient evidence to support the jury's finding that an agreement existed between Williams and at least one other person to distribute marijuana to an inmate between the dates of May 1, 1987 and May 10, 1987. Mrs. Williams testified that Williams called her from Camp 24 and told her that Deborah Locher would be picking up a package left at the house by an individual named John. Deborah testified that Thomas Locher called her from Camp 24 and asked her to bring a package of marijuana into the prison. After he gave her instructions over the phone, Locher put Williams on the phone and he gave Deborah instructions to his mother's home. Deborah picked up a package at Mrs. Williams' home and made the first delivery of marijuana to Thomas Locher at the end of April or the beginning of May 1987. The prison records received in evidence at the trial indicated that Deborah visited Thomas at Camp 24 on May 2, 1987. Thus, we find no error in the jury's verdict that Williams was guilty of conspiracy to deliver marijuana to an inmate during the dates of May 1, 1987 and May 10, 1987.

The next question we must address, however, is whether the Commonwealth presented sufficient evidence for the jury to find the existence of more than one agreement. The question of whether the evidence presented in a single trial establishes the existence of one conspiracy or multiple conspiracies is a factual issue for the jury's determination. See United States v. Lozano, 839 F.2d 1020, 1023 (4th Cir.1988) (citing United States v. Urbanik, 801 F.2d 692, 695 (4th Cir.1986)); see also United States v. Alberti, 727 F.2d 1055, 1059 (11th Cir.), cert. denied, 469 U.S. 862, 105 S.Ct. 199, 83 L.Ed.2d 131 (1984); United States v. Rodriguez, 509 F.2d 1342, 1348 (5th Cir.1975). Thus, the jury's verdict may only be reversed if the evidence, as a matter of law, could not permit the jury to find beyond a reasonable doubt, that several conspiracies existed. See Alberti, 727 F.2d at 1059 (citing United States v. Bell, 678 F.2d 547, 549 (5th Cir. Unit B 1982)). We believe that this is the proper standard to be applied in reviewing the question of whether the evidence is sufficient to sustain multiple conspiracies.

Applying this standard to the case before us, we find that there was sufficient evidence to support the jury's determination that an agreement existed between Williams and at least one other person to distribute marijuana to an inmate on June 6, 1987. Deborah testified that she refused to bring marijuana into the camp after she made a delivery on May 30, 1987. Jackie Smith testified that his girlfriend, Tammy Barton, started bringing the marijuana into the camp. Williams spoke with Tammy to give her directions to his mother's home. Deborah introduced Tammy to Mrs. Williams on June 5, 1987. At that time, Tammy picked up two packages of marijuana at Mrs. Williams' home and brought them to Smith at Camp 24. Smith would give the marijuana to Locher, pursuant to their agreement. On a number of occasions, Smith was present when Locher gave the marijuana to Williams, who in turn gave Locher and Smith their cut.

In addition, Smith testified that sometime in early June, 1987, Thomas Locher and Williams had a fight. As a result, Thomas refused to continue bringing marijuana into the prison. Williams later apologized to Thomas. As part of the apology, Williams told Thomas that instead of the usual two ounces coming in every weekend, that sometimes it would be three. Thomas and Smith would continue to receive one-quarter of the marijuana brought into camp as their collective cut. On this record, we find that the jury's determination that the parties entered into a new agreement in early June is supported by the evidence.

The Commonwealth argues that the testimony of Deborah Locher conclusively establishes that each of the deliveries charged in the remaining indictments was also independent of any other. The testimony relied on by the Commonwealth was given by Deborah Locher, who recounted her conversation with her husband, Thomas. Her testimony was as follows:

We did not make plans, say we're going to do this for the next six weeks. We did it this time and it worked out okay and he said will you go back and do it again. And each weekend he'd say when are you going to pick it up, are you coming Saturday or are you coming Sunday?

Initially, we note that only three of the seven conspiracy indictments pertain to the time period during which Deborah Locher was bringing marijuana into the prison. The indictments alleging conspiracy on June 20, 1987, July 4, 1987 and July 11, 1987 did not involve Deborah Locher but rather Tammy Barton. Thus, Deborah Locher's understanding of her agreement with her husband is not pertinent to the issue of whether Williams was involved in multiple agreements to distribute marijuana to an inmate during the period following May 31, 1987.

We are also not persuaded that the Commonwealth's evidence is sufficient to prove beyond a reasonable doubt that Williams entered into multiple agreements to distribute marijuana to an inmate while Deborah Locher was bringing the marijuana into Camp 24. The Commonwealth's evidence showed that Williams had one conversation with his mother prior to Deborah picking up the marijuana at her home and one conversation with Deborah giving her directions to his mother's house. Deborah testified that she went to Mrs. Williams' home each weekend thereafter, for at least four weeks, and brought the marijuana to Thomas at Camp 24 every weekend except one. She also testified that she told Thomas at the end of May that she would no...