COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judge Elder and Senior Judge Cole
Argued at Richmond, Virginia
ANDREW LEWIS ADAMS
MEMORANDUM OPINION * BY
v. Record No. 1884-95-2 CHIEF JUDGE NORMAN K. MOON
AUGUST 27, 1996
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
James B. Wilkinson, Judge
Patricia P. Nagel, Assistant Public Defender
(David J. Johnson, Public Defender; Office of
the Public Defender, on brief), for
appellant.
John K. Byrum, Jr., Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.
Andrew Lewis Adams appeals from his conviction of conspiracy
to distribute cocaine in violation of Virginia Code § 18.2-256.
He argues that the evidence was insufficient to prove the
existence of an agreement to distribute cocaine between him and
codefendant. We disagree and affirm the conviction.
On March 30, 1995, Officers Eric S. Lee and Leigh Ashtiani
were assigned to an undercover controlled-buy operation in the
City of Richmond. While driving down Southlawn Boulevard in an
unmarked police vehicle they encountered appellant and
codefendant, a female later identified as Yvette Liles. As the
officers drove by, appellant motioned for the officers to pull
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
over. After the officers stopped, appellant approached the
vehicle and engaged in a conversation with Lee, the driver,
through the open passenger side window. At trial, Lee related
the conversation as follows:
The first thing I said once he [appellant]
got to the vehicle was, yo, what's up. At
that point, he [appellant] came over and said
what's up man? I said I am looking. He
[appellant] then said, in a rather distinct
voice, what are you looking for? I said I
need something to set me off. He [appellant]
said what? I then said a rock. He
[appellant] said how much man? And I told
him all I can do is a twenty.
At that point, appellant turned to codefendant who was standing
on the sidewalk and told codefendant to come over to the car.
Codefendant did so, at which point the appellant asked if he and
the codefendant could get into the car. Officer Lee declined and
told appellant that he had the money "right here." Officer Lee
then handed the money to Officer Ashtiani who then passed the
money to codefendant. Codefendant then reached into her pocket
and passed drugs to Ashtiani. Appellant and codefendant then
walked away together and were arrested together shortly
thereafter.
On appeal, we review the evidence in the light most
favorable to the Commonwealth, granting to it all reasonable
inferences fairly deducible therefrom. Higginbotham v.
Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975).
The judgment of the trial court is presumed correct, Daley v.
Commonwealth, 132 Va. 621, 111 S.E. 111 (1922), and in a
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circumstantial case, the inferences drawn by the fact finder will
not be disturbed on appeal as long as they are reasonable and
justified. O'Brien v. Commonwealth, 218 Va. 1045, 1049, 243
S.E.2d 231, 233 (1978).
"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)
(quoting Wright v. Commonwealth, 224 Va. 502, 505, 297 S.E.2d
711, 713 (1992)). "There can be no conspiracy without an
agreement, and the Commonwealth must prove beyond a reasonable
doubt that an agreement existed." Id. (quoting Floyd v.
Commonwealth, 219 Va. 575, 580, 249 S.E.2d 171, 174 (1978)).
However, "[p]roof of an explicit agreement is not required and
oftentimes the prosecution must rely only on circumstantial
evidence to establish the conspiracy." Stevens v. Commonwealth,
14 Va. App. 238, 241, 415 S.E.2d 881, 883 (1992).
In Feigley, we addressed the question of when a multi-party
drug sale would give rise to an agreement to distribute, and
therein held that
the agreement must be that two or more
persons will act in concert to commit a crime
. . . if two or more people agree in advance
to act in concert to sell drugs, where one
serves as the "supplier" and the other as the
"runner," an agreement to distribute drugs
exists and a conspiracy has been proven. It
is proof of the second element, the agreement
to distribute, that "establishes the
necessary preconcert and connivance"
necessary to prove a conspiracy.
16 Va. App. at 722-23, 432 S.E.2d at 524 (quoting Zuniga v.
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Commonwealth, 7 Va. App. 523, 529, 375 S.E.2d 381, 385 (1988)).
Here, the record indicates that appellant and codefendant
had reached an agreement and conspired to distribute drugs.
Trial testimony creates an inference that appellant and
codefendant operated as a team, wherein the appellant flagged
down the vehicle, made inquiries, and having determined the kind
and quantity of drug desired, motioned codefendant to approach
and complete the transaction. The evidence presented at trial
makes certain that appellant realized the nature of the activity.
It was appellant, not codefendant, that solicited the sale and
inquired as to what substance was sought. Likewise, appellant
ascertained the amount to be spent. Codefendant then, on cue,
completed the transaction in progress. Such activity is
sufficient to demonstrate the preconcert and connivance necessary
to prove a conspiracy.
The facts here are distinguishable from those in Feigley, 16
Va. App. 717, 432 S.E.2d 520, upon which appellant relies, where
we considered a multi-party drug deal involving an undercover
police officer, defendant and three other individuals. We found
that there was no evidence to prove Feigley and another had
prearranged that they would distribute drugs or that another
would run drugs for Feigley.
Unlike Feigley, the record in this case contains facts
sufficient to justify the trial court's decision that an
agreement existed. Here, unlike in Feigley, the appellant was
not contacted after the sale was initiated and then asked to
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supply the drugs, thereby leaving it undecided on the record as
to whether there had been a prior agreement to distribute drugs.
Instead, here the evidence presented establishes concerted
actions of appellant and codefendant sufficient to prove an
agreement. Appellant initiated and established the terms of the
deal while codefendant awaited her cue to enter and complete the
sale. When appellant made the initial contact he asked if he and
codefendant could get into the car to complete the transaction.
Both were present for the duration of the transaction and each
performed in accordance with a reasonably inferred plan or system
of operation.
Finding sufficient evidence of an agreement between
appellant and codefendant to distribute cocaine, we affirm.
Affirmed.
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