COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Humphreys and Senior Judge Overton
Argued at Chesapeake, Virginia
MILLARD J. TAYLOR, S/K/A
MILLARD JEROME TAYLOR
MEMORANDUM OPINION * BY
v. Record No. 1728-00-1 JUDGE NELSON T. OVERTON
JUNE 5, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
Dean W. Sword, Jr., Judge
(Patricia A. Cannon; Cannon, Collins & Plott,
PLC, on brief), for appellant. Appellant
submitting on brief.
Shelly R. James, Assistant Attorney General
(Mark L. Earley, Attorney General; Amy L.
Marshall, Assistant Attorney General, on
brief), for appellee.
Appellant was convicted of distributing cocaine and
conspiring to distribute cocaine. The sole issue on appeal is
whether the evidence was sufficient to prove a pre-offense
agreement between the parties to distribute the cocaine. We hold
that the evidence was sufficient to prove a pre-offense agreement,
and affirm.
BACKGROUND
Detectives Dufreitas, Grover and McAndrew were traveling in
an unmarked police vehicle and saw appellant and Tyrone Freeman
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
standing together. Freeman came into the road and flagged down
the car. Freeman got into the car and asked what the men wanted.
Dufreitas said that he wanted a "twenty piece." Freeman said that
he would take them to get the "twenty piece" and they drove to an
area known for drug trafficking, but no one was there. As
directed by Freeman, Dufreitas drove around the block, returning
to their original location. Freeman said to pull up by appellant.
Freeman was still in the vehicle, when appellant walked over
and asked Freeman, "What do they want?" Freeman replied, "A
twenty piece." Appellant asked Freeman, "Are you sure that
they're not the police?" Freeman said, "No man," and exited the
vehicle. Appellant pulled two baggies from his coat and gave them
to Freeman. Appellant told Freeman to give the baggies to the men
because appellant thought they were the police. Freeman gave the
baggies to Dufreitas, and the detectives announced that they were
the police. Appellant and Freeman fled, but were quickly
apprehended. Freeman told Dufreitas that the stuff was a "rip
off." Laboratory analysis confirmed that the baggies contained
cocaine.
Appellant testified that he was not involved in the drug
transaction and that he was "hanging out" with Freeman when he saw
Freeman get into the vehicle. Appellant also testified that when
Freeman asked for drugs, appellant replied that he did not have
any drugs and did not sell drugs. Appellant denied that he ran
from the detectives.
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ANALYSIS
"Conspiracy is defined as 'an agreement between two or more
persons by some concerted action to commit an offense.'"
Feigley v. Commonwealth, 16 Va. App. 717, 722, 432 S.E.2d 520,
524 (1993) (citation omitted). "Proof of an explicit agreement
to distribute a controlled substance 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). "While '[e]vidence which merely
establishes aiding or abetting in the commission of the
distribution offense will not suffice to prove a conspiracy
. . . [t]he evidence need not show that . . . [the defendant]
knew the entire scope or details of the plan of distribution.'"
Moore v. Commonwealth, 25 Va. App. 277, 288, 487 S.E.2d 864, 870
(1997) (citation omitted). The crime is "committed when the
agreement to commit the offense is complete . . . ." Johnson v.
Commonwealth, 8 Va. App. 34, 38, 377 S.E.2d 636, 638 (1998).
The evidence proved that appellant and Freeman had an
agreement, wherein Freeman flagged down the vehicle, made
inquiries, and determined the kind and quantity of drug desired.
Freeman got into Dufreitas's vehicle and told him to drive down
the street to a known drug area, but no one was around. Freeman
then directed Dufreitas back to their original location and told
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Dufreitas to pull up by appellant. Without prompting from
Freeman, appellant walked over to the vehicle and asked Freeman,
"What do they want?" Freeman told appellant the type and
quantity of drug. Unless there was a prearranged agreement to
sell drugs, there was no reason for appellant to approach
Dufreitas's vehicle and to spontaneously ask Freeman what
Dufreitas wanted. The Commonwealth's evidence was competent,
was not inherently incredible, and was sufficient to prove
beyond a reasonable doubt that appellant and Freeman had a
pre-offense agreement to distribute cocaine and engaged in a
conspiracy to distribute cocaine.
Affirmed.
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