Opinion
Record No. 0706-93-2
April 5, 1994
FROM THE CIRCUIT COURT OF HANOVER COUNTY RICHARD H. C. TAYLOR, JUDGE
C. Carter Wailes for appellant.
Kathleen B. Martin, Assistant Attorney General (Stephen D. Rosenthal, Attorney General, on brief), for appellee.
Present: Chief Judge Moon, Judges Coleman and Elder
Argued at Richmond, Virginia
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
William Moore was convicted of possession of marijuana with an intent to distribute and conspiracy to distribute marijuana. Moore was sentenced to ten years imprisonment, with all but twelve months suspended, for possessing marijuana with an intent to distribute and ten years, with all suspended, for the conspiracy conviction. We find the evidence insufficient to support the conviction for conspiracy to distribute marijuana. The evidence fails to prove the existence of an agreement to distribute marijuana between the defendant and Milton Williams.
Two police officers stopped Moore's vehicle and discovered marijuana packaged in four plastic bags. After having been given his Miranda rights, Moore stated that he bought the marijuana from Milton A. Williams at the request of Jaffee (a police informant) and that he made $100 profit from the resale. Moore said that he had known Williams for two years and had made three purchases from Williams. Moore said that he contacted Williams by telephone to arrange the sale before meeting him to buy the drugs.
At Moore's trial, Jaffee testified about a telephone conversation that he had with Moore, in which Jaffe asked if Moore "could take care of him, hook him up with some marijuana." During this conversation, Moore said that he and a friend from Powhatan were trying to start a small marijuana distribution business and that he "had a connection." On one occasion before his arrest, Moore had purchased one ounce of marijuana for the informant Jaffee.
I.
In determining whether evidence is sufficient to support a conspiracy conviction, we view the trial court record in the light most favorable to the Commonwealth. Wright v. Commonwealth, 224 Va. 502, 505, 297 S.E.2d 711, 713 (1982). The conviction will not be disturbed on appeal unless it is "plainly wrong or without evidence to support it." Id.
In order to be convicted of conspiracy, the Commonwealth must prove "an agreement between two or more persons by some concerted action to commit an offense." Falden v. Commonwealth, 167 Va. 542, 544, 189 S.E. 326, 327 (1937). The agreement that forms the basis of a conspiracy does not need to be explicit, Wright, 224 Va. at 505, 297 S.E.2d at 713; however, the proof must establish beyond a reasonable doubt the existence of an agreement to commit a criminal act. Reed v. Commonwealth, 213 Va. 593, 594, 194 S.E.2d 746, 747 (1973).
In this case, Moore told Jaffee by telephone that he and a friend from Powhatan were trying to start a small marijuana distribution business and that he "had a connection." This statement, while sufficient to prove an agreement between Moore and an unidentified friend from Powhatan to distribute marijuana, is not sufficient to prove an agreement between Moore and Williams. The evidence showed that Moore purchased the marijuana from Williams in Richmond, not in Powhatan. Nothing suggests that Williams was the person with whom Moore had an agreement. In fact, to the extent that Williams was one of the persons involved in the transaction that Moore had mentioned, the evidence would suggest that he was the "connection," rather than Moore's co-conspirator. Furthermore, the evidence does not show that if Williams was Moore's "connection," he expressly or impliedly agreed to provide him drugs knowing that Moore intended to resell or distribute them.
From the circumstantial evidence, the fact finder could not reasonably infer that Moore and Williams had agreed to distribute marijuana. The proof at trial established only that Moore and Williams had a buyer-seller relationship. The relationship of buyer and seller, standing alone, does not constitute a conspiracy. Zuniga v. Commonwealth, 7 Va. App. 523, 528, 375 S.E.2d 381, 385 (1988). A single buyer-seller relationship can only be a conspiracy if "(1) 'the seller knows the buyer's intended illegal use,' and (2) 'by the sale [the seller] intends to further, promote and cooperate in [the venture].'" Id. at 529, 375 S.E.2d at 385 (quoting Direct Sales Co. v. United States, 319 U.S. 703, 711 (1943)). No evidence proves, either directly or impliedly, that Williams knew Moore's intended use for the drugs. No evidence proves that Williams intended to cooperate or participate in a drug distribution venture between Moore and Moore's partner from Powhatan. The only evidence presented at trial is that Moore bought marijuana from Williams with an intent to distribute, and he stands convicted of that offense.
Accordingly, we find the evidence insufficient to sustain Moore's conviction of conspiracy to distribute marijuana.
Reversed and dismissed.