COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Annunziata and Senior Judge Cole
Argued at Richmond, Virginia
CLIFFORD O'NEAL KING
MEMORANDUM OPINION * BY
v. Record No. 1130-96-2 JUDGE ROSEMARIE ANNUNZIATA
JANUARY 28, 1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF HANOVER COUNTY
Richard H. C. Taylor, Judge
Hugh S. Campbell (Campbell, Campbell, Herbert &
Harris, on brief), for appellant.
Daniel J. Munroe, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
Following a bench trial, appellant, Clifford O'Neal King,
was convicted of distribution of cocaine and conspiracy to
distribute cocaine. On appeal, he contends the evidence is
insufficient to support his conviction for conspiracy to
distribute. We agree and reverse.
Lloyd Evans, acting undercover as a Special Agent of the
Virginia State Police, met with appellant and discussed with him
the possibility of purchasing cocaine. Appellant asked Evans for
a quarter, which he used to place a telephone call. Evans
overheard appellant refer to the person he called as "Ben." With
that exception, there is no evidence concerning the content of
the phone conversation. After completing the call, appellant
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
told Evans appellant could obtain drugs from a person named Ben.
Appellant, Evans, Charles Brown (Charles) and another man
drove to the nearby home of Benjamin Harris (Ben). When they
arrived, Evans gave appellant eighty dollars. Appellant took the
money, exited the vehicle, approached the house and was met by
Ben. Evans witnessed appellant and Ben exchange something, but
the record contains no evidence concerning any communication made
between appellant and Ben during the transaction. Following the
transaction, appellant returned to the vehicle and presented
Evans with crack cocaine. Appellant testified that, following
the transaction, Ben walked to the car and spoke to Charles.
"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)
(quoting Falden v. Commonwealth, 167 Va. 542, 544, 189 S.E. 326,
327 (1937)). There is no dispute that the relevant agreement in
this case is the alleged agreement between appellant and Ben to
distribute cocaine; any "agreement" between appellant and Evans
is irrelevant. See Fortune v. Commonwealth, 12 Va. App. 643,
648, 406 S.E.2d 47, 49 (1991) ("agreement" with government agent
insufficient to support conviction for conspiracy).
An agreement requires plurality of
intent, a meeting of the minds. "[I]t must
be shown that the requisite intent existed as
to at least two persons. That is, there must
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be a common design, so that if only one party
to the agreement has the necessary mental
state then even that person may not be
convicted of conspiracy."
Id. at 647, 406 S.E.2d at 49 (citation omitted). "As a general
rule a single buyer-seller relationship, standing alone, does not
constitute a conspiracy." Zuniga v. Commonwealth, 7 Va. App.
523, 528, 375 S.E.2d 381, 385 (1988). Accordingly, in the
present case, the Commonwealth was required to prove an agreement
between appellant and Ben to distribute cocaine to a third party.
Here, the record contains no direct evidence of an agreement
between appellant and Ben to distribute cocaine to a third party.
The evidence of the phone call showed only that appellant spoke
to a man named Ben; the evidence of the transaction showed only
that appellant and Ben exchanged something.
The Commonwealth argues that circumstantial evidence and
inferences to be drawn therefrom, viewed in the light most
favorable to the Commonwealth, supports the trial court's finding
that a conspiracy to distribute existed. We disagree.
"[W]here the Commonwealth's evidence as to an element of an
offense is wholly circumstantial, `all necessary circumstances
proved must be consistent with guilt and inconsistent with
innocence and exclude every reasonable hypothesis of innocence.'"
Moran v. Commonwealth, 4 Va. App. 310, 314, 357 S.E.2d 551, 553
(1987) (citation omitted). The Commonwealth argues that the
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evidence of the phone call and the resulting exchange of money
for drugs led the trial court to the "logical conclusion" that
"Ben indicated he was able to supply cocaine to the others in
exchange for $80." 1
The evidence supports the finding that appellant arranged to
purchase cocaine from Ben and did, in fact, exchange the money
Evans gave him for drugs. However, the evidence fails to exclude
the hypothesis that Ben was aware only of the transaction between
himself and appellant. Accordingly, the Commonwealth failed to
prove the requisite agreement, and appellant's conviction must be
reversed.
Reversed and dismissed.
1
The Commonwealth relied on a similar argument at trial. It
argued to the court that "[appellant] calls [Ben] and says I've
got a buyer, will you sell us drugs."
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