COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Elder and Clements
Argued at Richmond, Virginia
KEVIN LEE GREEN
MEMORANDUM OPINION * BY
v. Record No. 2263-00-2 CHIEF JUDGE JOHANNA L. FITZPATRICK
OCTOBER 23, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
Buford M. Parsons, Jr., Judge Designate
Linwood T. Wells, III, for appellant.
Kathleen B. Martin, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Kevin Lee Green (appellant) was convicted in a jury trial of
conspiracy to possess with intent to distribute more than five
pounds of marijuana in violation of Code §§ 18.2-248.1 and
18.2-256. 1 On appeal he contends (1) that the trial court erred
in accepting the jury verdict finding appellant guilty of
conspiracy with intent to distribute more than five pounds of
marijuana as a principal in the "second degree" and (2) the
evidence was insufficient to convict appellant as a principal in
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
1
Appellant was also charged with possession with intent to
distribute more than five pounds of marijuana and transporting
more than five pounds of marijuana into the Commonwealth.
Appellant was found not guilty of both charges.
the second degree to conspiracy. For the following reasons, we
affirm the judgment of the trial court.
I. BACKGROUND
Under familiar principles of appellate review, we examine the
evidence in the light most favorable to the Commonwealth, the
prevailing party below, granting to it all reasonable inferences
fairly deducible therefrom. See Juares v. Commonwealth, 26 Va.
App. 154, 156, 493 S.E.2d 677, 678 (1997).
A. OFFENSE
So viewed, the evidence established that on January 7, 1999,
a person using the name of Tricia Williams shipped two large boxes
from La Mesa, California via Federal Express to Box 233 at Mail
Boxes Etc. (the store), 12750 Jeff Davis Highway in Chesterfield
County, Virginia. The box was jointly registered to appellant and
Ross Robinson (Robinson) under the name "Green Film Editors," an
inactive business. Robinson and appellant had previously been
involved together in the drug trade. The police intercepted the
packages, determined that they contained fifty pounds of
marijuana, and set up a controlled delivery with an officer
working undercover at the store.
Five days later on January 12, 1999, appellant, in response
to a page from Robinson, agreed to pick up the packages from the
store. Robinson told him that "Jay" had tried earlier to pick up
the package but was unable to do so because he was not an
authorized signatory on the account. Appellant knew that Jay was
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Robinson's connection for obtaining drugs. Appellant agreed to
meet Jay at Denny's. At the meeting Jay asked appellant to get
the package and give it to him. Appellant followed Jay to the
shopping complex where Mail Boxes Etc. was located. Jay pulled
into a nearby McDonald's while appellant went to the store, signed
for and picked up the packages. The undercover officer helped
appellant place the packages in his vehicle. When appellant
started to drive away, the police stopped and arrested him.
After receiving Miranda warnings, appellant told the police
that when he saw the size of the packages he knew there were
"probably drugs in the boxes." He described his meeting with Jay
but refused to divulge what they talked about before he went into
the store.
At trial, appellant testified that he had not been expecting
such large boxes and "had no idea" of their contents. He claimed
he signed for the packages without examining them and denied
telling the police he thought the boxes probably contained drugs.
B. JURY VERDICT
The trial court gave Instruction 6 without objection. It
stated:
A principal in the first degree is the person
who actually commits the crime. A principal
in the second degree is a person who is
present, aiding and abetting, by helping in
some way in the commission of the crime.
Presence and consent alone is not sufficient
to constitute aiding and abetting. It must
be shown that the defendant intended his
words, gestures, signals or actions to in
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some way encourage, advise, or urge, or in
some way to help the person committing the
crime to commit it.
A principal in the second degree is
liable for the same punishment as the person
who actually committed the crime.
During deliberations, the jury asked the trial court whether
this instruction applied to all three charges. Without objection
from appellant, the trial judge responded, "It goes to all three
charges." The jury asked the judge a follow-up question, "So any
one of the three we can apply this to, it doesn't have to be to
all three?" The trial judge responded "that's within your
discretion."
When reading the verdict on the conspiracy charge the
following colloquy took place between the court and the foreperson
of the jury:
THE COURT: On the charge, we the jury -- the
remaining charge -- we the jury, find the
defendant guilty of the crime of conspiracy
to possess with intent to distribute more
than five pounds of marijuana as charged in
the indictment. They have added "second
degree," and it is signed by Mr. Simmons as
the foreperson of the jury.
I will have to ask members of the jury,
I think I know what you mean by second
degree, but whether he be a principal in the
first degree or second degree doesn't matter
as to the finding.
Do you want to tell me anything? What
do you mean by second degree? There's a
principal in the second degree, is that what
the jury --
THE FOREPERSON: Right, the principal in the
second degree. Actually, I believe, Your
Honor, we were under the assumption that a
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second degree would be lesser of whatever
sentence there may be than a first degree.
THE COURT: Well, the instruction told you
exactly the opposite. It may go as to how
you handle that in the sentencing aspect of
the case.
(Emphasis added.)
The trial court asked appellant if he had any objection to
asking the foreperson to strike the second degree. Appellant
noted an objection to striking the "second degree" and argued that
the jury had in fact found him not guilty. The judge declared to
counsel, "[t]hey found him guilty." The trial court then polled
the jury with each member answering affirmatively that they
concurred in the verdict. The case was continued until the next
morning for sentencing.
When the court reconvened the following morning, appellant
requested a mistrial on the ground that the jury had ignored the
instruction given to them regarding principals in the second
degree and also argued that the evidence was insufficient as a
matter of law to convict. 2 The trial court overruled appellant's
motion. At the penalty phase appellant was sentenced to five
years incarceration and ordered to pay a fine of $500. The final
2
Although the Commonwealth contends that appellant failed
to object to the court's suggestion that the jury strike "second
degree" from the verdict form when they returned from
deliberations and, thus, appellant's claim is barred by Rule
5A:18, we find that appellant's objection followed by his
continued objection the following morning was sufficiently
timely in this case to avoid a Rule 5A:18 bar.
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sentencing order simply finds appellant guilty of "conspiracy to
possess marijuana with the intent to distribute." Appellant
appeals from this conviction.
II. ANALYSIS
Appellant contends (1) that the jury erred by failing to
follow the instructions given by the trial judge when they added
the words "second degree" to the verdict form and (2) that the
evidence was insufficient to convict him as a principal in the
second degree to the crime of conspiracy to possess marijuana with
the intent to distribute.
A. JURY VERDICT
"In determining the validity of a jury's verdict, it is
necessary to discern the true intent of the jury." Spear v.
Commonwealth, 221 Va. 450, 454, 270 S.E.2d 737, 740 (1980). The
reviewing court will "disregard technical irregularities in a
verdict where the jury's finding is otherwise clear." Id.
Further, the court will "'go far in the disregard of defects in
verdicts which have been accepted by the trial courts, but from
which, notwithstanding such defects, the real finding of the jury
may be determined, though it may not be accurately couched in the
technical language of the law.'" Id. (quoting Williams v.
Commonwealth, 153 Va. 987, 994, 151 S.E. 151, 153 (1930)).
In the instant case, the record reflects that the trial court
accurately ascertained that the jury intended to convict appellant
of the underlying conspiracy charged, but erroneously added the
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"second degree" language in an attempt to impose a lesser
sentence. The trial court correctly informed the jury that this
was a sentencing concern and could be addressed in the separate
penalty phase. After this clarification, the trial judge polled
the jury and each jury member affirmed that it was his or her
verdict. Any confusion on the part of the jury was cured by the
judge's instructing the jury about the meaning of "second degree"
before the sentencing phase. The jury imposed the minimum
statutory penalty which was consistent with their finding of guilt
on the underlying conspiracy charge and their interest in
mitigating punishment. Thus, we find no error.
B. SUFFICIENCY OF THE EVIDENCE
Appellant next contends that the evidence was insufficient
to convict him as a principal in the second degree. However,
because we hold that the verdict reflected a finding of guilt as
a principal conspirator, we address the sufficiency of the
evidence as a whole.
In assessing sufficiency of the evidence:
[W]e examine the evidence in the light most
favorable to the Commonwealth. See Martin
v. Commonwealth, 4 Va. App. 438, 443, 358
S.E.2d 415, 418 (1987). The credibility of
a witness and the inferences to be drawn
from proven facts are matters solely for the
fact finder's determination. See Long v.
Commonwealth, 8 Va. App. 194, 199, 379
S.E.2d 473, 476 (1989). In its role of
judging witness credibility, the fact finder
is entitled to disbelieve the self-serving
testimony of the accused and to conclude
that the accused is lying to conceal his
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guilt. See Speight v. Commonwealth, 4 Va.
App. 83, 88, 354 S.E.2d 95, 98 (1987) (en
banc).
Marable v. Commonwealth, 27 Va. App. 505, 509-10, 500 S.E.2d
233, 235 (1998). "The jury's verdict may not be disturbed
unless it is plainly wrong or without evidence to support it."
Hills v. Commonwealth, 33 Va. App. 442, 456, 534 S.E.2d 337, 344
(2000).
A conspiracy is "'an agreement between two or more persons by
some concerted action to commit an offense.'" Ramsey v.
Commonwealth, 2 Va. App. 265, 270, 343 S.E.2d 465, 469 (1986)
(quoting Falden v. Commonwealth, 167 Va. 542, 544, 189 S.E. 326,
327 (1937)). "In Virginia, the crime of conspiracy is complete
when the parties agree to commit an offense. No overt act in
furtherance of the underlying crime is necessary." Gray v.
Commonwealth, 260 Va. 675, 680, 537 S.E.2d 862, 865 (2000).
"Liability as a conspirator is not dependent upon knowledge of the
details and the scope of the conspiracy or the identity and role
of each co-conspirator." Barber v. Commonwealth, 5 Va. App. 172,
179, 360 S.E.2d 888, 891 (1987).
In the instant case the evidence was sufficient to
establish that appellant conspired with others to possess and
distribute the fifty pounds of marijuana. A number of
individuals were involved in the conspiracy. This includes
Robinson, who called appellant and requested the pickup, Jay,
who met with appellant and followed him to the store, and the
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source who shipped the drugs. Appellant had previously sold
cocaine with Robinson and knew that Robinson was selling
marijuana. He followed Robinson's instructions and picked up
the packages to bring them to Robinson's house. Before he
retrieved the boxes from Mail Boxes Etc., appellant met with
Jay, a person he knew as Robinson's connection for obtaining
drugs. The evidence establishes appellant as an active
participant in the conspiracy to pick up the marijuana.
Additionally, the jury was entitled to reject appellant's
testimony that he had "no idea" what was in the two large boxes
and conclude that he was lying to conceal his guilt. See
Speight, 4 Va. App. at 88, 354 S.E.2d at 98. Sufficient
evidence supports appellant's conviction of conspiracy to
possess marijuana with intent to distribute.
Affirmed.
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