Opinion
Record No. 2122-93-2
Decided: February 21, 1995
FROM THE CIRCUIT COURT OF CHARLES CITY COUNTY, Samuel T. Powell, III, Judge
Clay B. Blanton for appellant.
Linwood T. Wells, Jr., Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.
Present: Chief Judge Moon, Judge Coleman and Senior Judge Hodges
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
The appellant, Glenn Woodley, was convicted in a bench trial of conspiracy to distribute cocaine. He contends the evidence is insufficient to support the conviction. We find the evidence insufficient to prove a conspiracy to distribute cocaine, and we reverse the conviction.
On appeal, the judgment of the trial court will not be set aside unless it appears from the record that it is plainly wrong or without evidence to support it. We examine the evidence in the light most favorable to the Commonwealth, granting to it all reasonable inferences. Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987).
On January 16, 1993, the Charles City County Sheriff's Department and the Virginia State Police executed a search warrant for the mobile home of Edward Darnell Woodley. When they entered the home, they found Glenn Woodley, the appellant, seated across from the entrance. Two other individuals were in the room. The officers searched the home and found cocaine in a bowl on top of the refrigerator, crack cocaine in a prescription bottle located behind the sofa upon which the appellant was sitting, a razor blade and small mirror in an adjoining room, and a "paraphernalia pipe" in a jacket. Glenn Woodley was taken to the sheriff's office.
At trial, Investigator Anderson of the Charles City County Sheriff's Department testified that during questioning, Glenn Woodley stated, "I was helping Darnell Woodley today, January 16, 1993, to sell it." The appellant also admitted that he was the owner of the "paraphernalia pipe."
Conspiracy is "an agreement between two or more persons by some concerted action to commit an offense." Stevens v. Commonwealth, 14 Va. App. 238, 241, 415 S.E.2d 881, 883 (1992). The existence of an agreement is the essence of a conspiracy. Williams v. Commonwealth, 12 Va. App. 912, 915, 407 S.E.2d 319, 321 (1991). The Commonwealth must prove beyond a reasonable doubt that an agreement to commit a crime exists. Reed v. Commonwealth, 213 Va. 593, 594, 194 S.E.2d 746, 747 (1973). The defendant's statement and the constructive possession of cocaine do not prove that an agreement existed. Without an agreement, there can be no conspiracy. The defendant's statement proves only an agreement between them to sell cocaine. "A defendant may wittingly aid a criminal act and be liable as an aider and abettor, but not be liable for conspiracy." Zuniga v. Commonwealth, 7 Va. App. 523, 527, 375 S.E.2d 381, 384 (1988) (quoting United States v. Bright, 630 F.2d 804, 813 (5th Cir. 1980)). The appellant's statement evidence proves that he aided and abetted Edward Woodley but fails to prove a conspiracy between them. See Zuniga, 7 Va. App. at 527, 375 S.E.2d at 384.
The Commonwealth contends that, in addition to the appellant's statement, his constructive possession of the cocaine is overt conduct from which an agreement can be inferred. While certain overt conduct may be sufficient to prove the existence of an agreement, simply proving the act of constructively possessing cocaine and assisting a person to sell it is not sufficient to establish a conspiracy. The evidence must show an agreement between the parties, and that is not shown by proving that one party decides or undertakes to assist the other. Poole v. Commonwealth, 7 Va. App. 510, 513, 375 S.E.2d 371, 372-73 (1988). Proving that a person facilitates a drug sale, Reed, 213 Va. at 554-55, 194 S.E.2d at 747, or distributes a narcotic, Heacock v. Commonwealth, 228 Va. 397, 407, 323 S.E.2d 90, 96 (1984), is not sufficient to prove the existence of a conspiracy.
Neither the amount of drugs, packaging, location, or paraphernalia prove an agreement between the appellant and Edward Woodley to distribute drugs. There is no evidence of profit sharing or that the appellant had a "stake in the venture." Zuniga, 7 Va. App. at 531, 375 S.E.2d at 386 (quoting Direct Sales Co. v. United States, 319 U.S. 703, 711 (1943)). Evidence of possession is insufficient by itself to support a conviction for conspiracy. See Heacock, 228 Va. at 407, 323 S.E.2d at 96.
The Commonwealth has failed to prove that an agreement existed. Therefore, the evidence is insufficient to sustain the appellant's conviction.
We reverse and dismiss.
Reversed and dismissed.