COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bray and Senior Judge Baker
Argued at Richmond, Virginia
TONY LAMONT HARRIS
MEMORANDUM OPINION * BY
v. Record No. 0159-98-2 JUDGE JOSEPH E. BAKER
JUNE 8, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF COLONIAL HEIGHTS
John F. Daffron, Jr., Judge
Nathaniel M. Collier, III, for appellant.
Jeffrey S. Shapiro, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Tony Lamont Harris (appellant) appeals from his bench trial
conviction by the Circuit Court of the City of Colonial Heights
(trial court) for conspiracy to distribute cocaine. Appellant
contends that the evidence was insufficient to prove the existence
of a conspiracy. We disagree. Under familiar principles of
appellate review, we examine the evidence in the light most
favorable to the Commonwealth, granting to it all reasonable
inferences fairly deducible therefrom. See Martin v.
Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987).
The judgment of a trial court will be disturbed only if plainly
wrong or without evidence to support it. See id.
*Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
The record discloses that Police Detective Mike Elmore called
a certain pager number and subsequently received a telephone call
back from a man identifying himself as "T." Sometime after the
men concluded their conversation, Elmore called the same pager
number and once again received a call back from "T." Elmore
indicated that he wished to buy two "eight-balls" of crack
cocaine, and the men arranged to meet at a Hardee's restaurant.
"T" told Elmore that he would be wearing dark clothing and a red
cap and would be riding in a green car.
Elmore proceeded to the Hardee's where he saw a green car
occupied by Sheila Jones (Sheila), Tony Jones (Tony), and
appellant. Sheila was driving, Tony was in the front passenger
seat, and appellant was in the back seat. Tony was wearing dark
clothing and a red hat. As Elmore approached the car, he saw Tony
and appellant pointing to a marked police car that was parked at
an adjacent gas station. Sheila, Tony, and appellant then drove
off, aborting the sale.
After Elmore called the pager number, "T" called back and
they arranged to meet at another Hardee's. Elmore testified that
after he arrived at the Hardee's, he saw Sheila drive by the
restaurant twice before stopping and that Sheila, Tony, and
appellant were all "looking around" as they drove by. Upon
arriving at the second Hardee's, Tony exited the car and showed
Elmore the crack cocaine he was proposing to sell. On the pretext
of going to get his money, Elmore went back to his unmarked police
- 2 -
car and radioed for assistance. Tony was subsequently arrested
inside the Hardee's.
Officer Samuel Young responded to Elmore's call and proceeded
to the back of the Hardee's to intercept the green car. Young was
driving a marked police car, and he had his emergency lights
flashing. Sheila evaded Young and drove out of the parking lot.
Appellant was banging on the back of Sheila's seat and yelling
"go, go, go" at Sheila as she drove off. Young and Officer
Steven P. Kolev subsequently apprehended Sheila and appellant a
few blocks from the Hardee's. At the time of his arrest,
appellant had cocaine in his pants pocket. Elmore recovered from
the back seat of Sheila's car a shoe box that contained
twenty-five packages of crack cocaine. He also found a pager, $24
worth of food stamps, and $412 in cash in the car.
Appellant subsequently told Elmore that he had paid Sheila
$10 to drive Tony and him to a mall to get something to eat and
pay some bills. Sheila told Elmore that Tony and appellant gave
her $10 to drive them "to meet somebody." She also told Elmore
that Tony and appellant had discussed making a $500 profit.
"Conspiracy is defined as 'an agreement between two or more
persons by some concerted action to commit an offense.'" Wright
v. Commonwealth, 224 Va. 502, 505, 297 S.E.2d 711, 713 (1982)
(citation omitted). "There can be no conspiracy without an
agreement, and the Commonwealth must prove beyond a reasonable
doubt that an agreement existed." Floyd v. Commonwealth, 219 Va.
- 3 -
575, 580, 249 S.E.2d 171, 174 (1978) (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) (citation omitted).
"Circumstantial evidence is as competent and is entitled to
as much weight as direct evidence, provided it is sufficiently
convincing to exclude every reasonable hypothesis except that of
guilt." Coleman v. Commonwealth, 226 Va. 31, 53, 307 S.E.2d 864,
876 (1983). However, "the Commonwealth need only exclude
reasonable hypotheses of innocence that flow from the evidence not
those that spring from the imagination of the defendant."
Hamilton v. Commonwealth, 16 Va. App. 751, 755, 433 S.E.2d 27, 29
(1993). Whether a hypothesis of innocence is reasonable is a
question of fact. See Cantrell v. Commonwealth, 7 Va. App. 269,
290, 373 S.E.2d 328, 339 (1988).
The credibility of a witness' testimony 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).
When Elmore first approached Tony, Sheila, and appellant to
purchase two "eight-balls" of crack cocaine, Tony and appellant
pointed to a nearby police car and aborted the drug sale.
- 4 -
Appellant paid Sheila $10 to give Tony and him a ride, and he and
Tony discussed making a $500 profit. After police arrested Tony,
as Young attempted to stop Sheila's car, appellant pounded on the
back seat and yelled "go, go, go" to Sheila. Upon being
apprehended, appellant possessed crack cocaine, and police found
twenty-five packets of crack cocaine in a shoebox in the back seat
of Sheila's car, where appellant had been sitting.
From this evidence, the trial court could infer beyond a
reasonable doubt that appellant and Tony conspired to distribute
cocaine to Elmore. See Hancock v. Commonwealth, 12 Va. App. 774,
782, 407 S.E.2d 301, 306 (1991) ("The inferences to be drawn from
proven facts, so long as they are reasonable, are within the
province of the trier of fact."). The trial court's decision was
neither plainly wrong, nor without evidence to support it.
Accordingly, the judgment of the trial court is affirmed.
Affirmed.
- 5 -