Opinion
Record No. 0686-92-2
August 10, 1993
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND THOMAS N. NANCE, JUDGE.
Jody Ann Jacobson, Assistant Public Defender (David J. Johnson, Public Defender, on brief), for appellant.
H. Elizabeth Shaffer, Assistant Attorney General (Stephen D. Rosenthal, Attorney General, on brief), for appellee.
Present: Chief Judge Moon, Judges Benton and Fitzpatrick.
Argued at Richmond, Virginia.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Goldburn A. Balbosa (appellant) was convicted after a bench trial of distribution of cocaine and conspiracy to distribute cocaine in violation of Code § 18.2-256. He appeals only the conspiracy conviction on the basis that the evidence was insufficient as a matter of law to prove a conspiracy. We agree and reverse.
The offenses arose out of a direct sale of cocaine to an undercover police officer. Around midnight on November 13, 1991, Officers Street and Mabry approached Jacqueline Bostic and an unidentified man standing at the rear of an apartment building. Officer Street asked the man, "what's up, was anyone on?" In response, Ms. Bostic walked between two apartments, faced Chamberlayne Avenue and said: "The guy went across the street." Approximately one minute later, appellant appeared across the street and walked directly to Ms. Bostic, who did not wave or call to him. They appeared to have a conversation that Officer Street could not hear. Ms. Bostic pointed to the officers and said they were "looking to." She then said, "let's do it one at a time. I want him to take care of me first."
Appellant and Ms. Bostic went inside one of the apartments for approximately five minutes. When they came back outside, Ms. Bostic told Officer Street that "we have to walk around the corner to get it." She then asked Officer Street what he wanted. He told her he wanted a $20 rock of cocaine. The officers, Ms. Bostic and appellant got into the officers' car and appellant directed them to a house on North Avenue. When they arrived, Ms. Bostic told appellant: "yeah; I didn't know that you were talking about these people. I know these people."
Officer Street gave Ms. Bostic the money, and she walked with appellant into the house. When the two came out of the house, appellant handed Officer Street the cocaine. Shortly thereafter, appellant was arrested. No money or drugs were found on his person.
"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)) (emphasis added); see also Amato v. Commonwealth, 3 Va. App. 544, 551, 352 S.E.2d 4, 8 (1987). In some circumstances, "existence of an unlawful and inherently covert agreement can be inferred from . . . overt conduct."United States v. Harris, 433 F.2d 333, 335 (4th Cir. 1970). However, the proof must establish the existence of the agreement beyond a reasonable doubt. Reed v. Commonwealth, 213 Va. 593, 594, 194 S.E.2d 746, 747 (1973). Without more, mere "proof of overt acts in themselves is not sufficient, for it must be established that the conspiracy or agreement which is charged to have existed and which is the gist of the offense had been formed before and was existing at the time of the commission of [any] overt act or acts." Harms v. United States, 272 F.2d 478, 482 (4th Cir. 1959), cert. denied, 361 U.S. 961 (1960) (citations omitted).
Viewing the evidence in the light most favorable to the Commonwealth, we conclude that it is insufficient to establish a conspiracy to distribute cocaine. The Commonwealth failed to prove the existence of any agreement or pre-connivance between Bostic and appellant. At best, this conduct established a sale in which the appellant was either a principal in the first degree or an accessory to a sale of cocaine, an offense for which he was convicted. The agreement inherent in this drug sale does not necessarily prove a conspiracy.
Accordingly, this case is reversed and dismissed.
Reversed and dismissed.