Opinion
Record No. 1805-91-2
July 20, 1993
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND ROBERT L. HARRIS, SR., JUDGE.
Susan Ann Kessler (White, Blackburn Conte, on brief), for appellant.
Eugene Murphy, Assistant Attorney General (Mary Sue Terry, Attorney General, on brief), for appellee.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Appellant, Andrew Roane, was convicted of conspiracy to distribute heroin. On appeal, Roane contends that the evidence was insufficient to support his conviction. Finding sufficient evidence of conspiracy, we affirm.
On March 14, 1991, Officer Michael R. Talbot, along with other officers from the Richmond Police Bureau's drug and firearms task force, set up a surveillance near the intersection of Bethel and Deforest Streets in the Whitcomb Court section of Richmond, Virginia. Using high-powered binoculars, Talbot observed Wayne Taylor and Roane enter the back door of an apartment at 2503 Bethel Street at 8:25 a.m. At 8:37 a.m., a man went to the back of 2503 Bethel Street and Roane answered the door. The male handed Roane what appeared to be money, and Roane handed the male a small white object. At 8:40 a.m., Talbot observed Shawn Taylor and Gregory Hill exit 2503 Bethel Street and walk down the street.
At 8:45 a.m., Shawn Taylor and Hill returned, and with Wayne Taylor, who had momentarily come out of the apartment, the three men re-entered 2503 Bethel Street. Just after the three men entered the apartment, a female knocked on the back door of 2503 Bethel Street and Wayne Taylor let her in. A few minutes later, Shawn Taylor left the apartment and walked down the street. A few minutes after that, the woman and Wayne Taylor left the apartment and walked down the street.
At approximately 8:55 a.m., Wayne Taylor and James Walker pulled up in front of 2503 Bethel Street; the car was driven by an unidentified female. Wayne Taylor and Walker got out of the car and went to the back door of 2503 Bethel Street. Roane appeared at the back door and Walker handed him money. After taking the money, Roane pulled a white object out of his sock and handed it to Walker. After the transaction, Walker, Roane, Wayne Taylor and the female stood outside the apartment talking; they were momentarily joined by Shawn Taylor and Hill, who had come outside from the apartment. While the six people were standing outside, an unidentified male approached the group and handed Shawn Taylor some money; Taylor, in return, handed the male a small item. Shawn Taylor and Roane then turned to Hill and handed money to him.
Walker and the female left in the car. Based on his observations, Talbot radioed Officer Harmon Loney to stop Walker's vehicle and search it. Loney discovered a glassine packet filled with heroin under the passenger seat in Walker's vehicle.
At 9:40 a.m., 10:00 a.m., and 10:35 a.m., Talbot observed Shawn Taylor receive money from individuals and give them small objects in return. Immediately following this, a search was conducted on 2503 Bethel Street. During the search, the police recovered three bundles of glassine envelopes, four zip lock bags containing heroin, rolling paper with marijuana, one clear package containing twelve small, clear bags of rock cocaine, a small square marijuana mirror, three razor blades, a box of sandwich baggies, clear plastic sandwich baggies containing plant residue, one small baggy containing white power residue and money. When Roane was searched, $73 in cash was found on him. Roane was convicted of conspiracy to distribute heroin. The jury was unable to reach a verdict on a charge of distribution of heroin.
When considering the sufficiency of the evidence on appeal of a criminal conviction, we must view all the evidence in the light most favorable to the Commonwealth and accord to the evidence all reasonable inferences fairly deducible therefrom. The jury's verdict will not be disturbed on appeal unless it is plainly wrong or without evidence to support it.
Traverso v. Commonwealth, 6 Va. App. 172, 176, 366 S.E.2d 719, 721 (1988) (citations omitted).
"A conspiracy is 'an agreement between two or more persons by some concerted action to commit an offense.'" Bowman v. Commonwealth, 11 Va. App. 259, 265, 397 S.E.2d 886, 889 (1990) (quoting Cartwright v. Commonwealth, 223 Va. 368, 372, 288 S.E.2d 491, 493 (1982)). "Proof of an explicit agreement . . . is not required; the agreement may be proved by circumstantial evidence. In fact, the nature of conspiracy is such that 'it often may be established only by indirect and circumstantial evidence.'" Brown v. Commonwealth, 10 Va. App. 73, 77, 390 S.E.2d 386, 388 (1990) (citations omitted).
As a result of surveillance of an apartment located in an area known for its high degree of drug activity, police officers observed Roane hand a small white object to an unidentified male from the back door of the Bethel Street apartment in exchange for money. Less than twenty minutes later, James Walker was observed at the back door of the apartment handing money to Roane, who had opened the door, in exchange for a small white object that Roane pulled from his sock. Walker got into a car and left, at which time the police stopped him and found a packet of heroin under Walker's seat. The packet of heroin fit the description of the object Talbot saw Roane hand to Walker.
Shortly after the sale to Walker, Roane and Shawn Taylor were observed handing money to Hill. The evidence established that Hill, Shawn Taylor, Wayne Taylor and Roane freely went in and out of the apartment during the surveillance period. When Hill was arrested, he had nine separately-folded packets of money on him, the amounts in the packets ranging from $85 to $10; including three $30 packets of money, a $28 packet, a $20 packet, and a $15 packet. Regarding the sixty-five packages or "eggs" of heroin recovered from the apartment, there was evidence that one package or "egg" normally sold for approximately $30.
"[A] common purpose and plan may be inferred from a development and collocation of circumstances. Where it is shown that the defendants by their acts pursued the same object, one performing one part and the other 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) (citations omitted).
From the evidence, it is clear that there was an ongoing drug enterprise in which Roane would sell heroin to buyers and hand the money over to Hill, who was found to be in possession of separately bundled packages of money. Based on the propinquity of the sales by Roane with the transfer of money to Hill, credible evidence was presented from which the jury could properly infer that a conspiracy existed between Roane and Hill to distribute drugs. See Stultz v. Commonwealth, 6 Va. App. 439, 443, 369 S.E.2d 215, 217 (1988) (finding that a formal agreement need not be shown, the Virginia Supreme Court has noted that "a conspiracy 'can be inferred from the overt conduct of the parties'").
Accordingly, we cannot say that the verdict is plainly wrong or without evidence to support it. For the reasons stated above, we affirm the jury's verdict.
Affirmed.
"[T]he Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." In Re Winship, 397 U.S. 358, 364 (1970).
"Conspiracy is defined as an 'agreement between two or more persons by some concerted action to commit an offense.'" In some circumstances "existence of an unlawful and inherently covert agreement can be inferred from . . . overt conduct." However, the proof must establish the existence of the agreement beyond a reasonable doubt. 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."
Poole v. Commonwealth, 7 Va. App. 510, 513, 375 S.E.2d 371, 372-73 (1988) (citations omitted). A suspicion or probability that an agreement existed is not sufficient to establish the guilt of an accused beyond a reasonable doubt. Cameron v. Commonwealth, 211 Va. 108, 110-11, 175 S.E.2d 275, 276 (1970).
The evidence in this case does not tend to establish that Andrew Leroy Roane acted in accordance with an agreement to commit a criminal offense. The police officer who observed Roane on the porch of the house conversing with a different individual on two separate occasions could not hear the conversation. He could not testify as to the item that was given by Roane. He could only state that the men gave to Roane something that "appeared" to be money and that Roane gave them something that "appeared" to be a small white object.
The evidence does not prove the identity of the item that "appeared" to be a white object. Only by speculating can one conclude that it was drugs rather than a ticket to a sporting event or some other item. The evidence also does not prove the reason why, on one occasion, Roane was seen giving another man money. The evidence does not allow the conclusion that he was not repaying a loan of money. The police officer who observed the transaction testified that he "can't say one hundred percent what they bought were drugs." Indeed, any percentage hypothesis would be a guess. Only by speculating can one conclude that Roane sold anyone drugs or that Roane agreed with anyone to commit a criminal offense.
The evidence proved that Roane was arrested in a house with several other people. In the house, the police found marijuana, cocaine, and heroin. Roane, however, had no drugs on his person when he was arrested. The evidence fails to link him beyond a reasonable doubt either to heroin or a criminal agreement. Speculation and suspicion do not constitute proof sufficient to sustain a criminal conviction. Simmons v. Commonwealth, 208 Va. 778, 783, 160 S.E.2d 569, 573 (1968).
I dissent.