COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, O’Brien and Malveaux
UNPUBLISHED
Argued at Richmond, Virginia
BRANDO CLIFTON CARTER, S/K/A
BRANDO SCOTT CARTER
MEMORANDUM OPINION* BY
v. Record No. 1445-15-2 JUDGE MARY BENNETT MALVEAUX
JULY 12, 2016
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF PRINCE GEORGE COUNTY
Nathan C. Lee, Judge
Eric J. Livingston (Livingston and Walsh, PLCC, on brief), for
appellant.
Craig W. Stallard, Assistant Attorney General (Mark. R. Herring,
Attorney General, on brief), for appellee.
Brando Clifton Carter appeals his conviction of conspiracy to possess with intent to
distribute cocaine, in violation of Code §§ 18.2-248 and 18.2-256. He argues the evidence was
insufficient to support his conviction because the Commonwealth failed to prove there was any
agreement, either express or implied, between appellant and any other person to possess cocaine
with intent to distribute it. For the reasons that follow, we agree with appellant’s argument and
reverse his conviction.
I. BACKGROUND
On May 3, 2014, at approximately 1:20 a.m., Officer Shane Richardson of the Prince
George County Police Department observed a Dodge Charger weaving in and out of its traffic
lane. Dejuan Roy was driving the vehicle, appellant was the front seat passenger, and Derrick
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
Williams was in the rear seat behind appellant. When stopped by Officer Richardson, Roy said
his license was suspended and that the Dodge Charger was a “rental car” belonging to the mother
of his child. Richardson placed Roy under arrest for DUI and driving on a suspended license.
Roy told the officer the other passengers were not on the “lease agreement,” and that he was
bringing the car back to his child’s mother.
After arresting Roy, Richardson asked the two passengers to step out of the vehicle so he
could conduct an inventory search prior to having the vehicle towed. The officer asked each
passenger for consent to search, and both agreed. Richardson found nothing “of note” on
appellant. He found $3,792 in Williams’ left and right front pockets. The money was “divided
by denomination,” meaning it was separated and folded over in subsequent denominations. At
first, Williams told Officer Richardson he “found it inside of the vehicle,” but when asked again
about the money he said, “What if I told you it was mine?” Richardson told Williams he would
have to show evidence of where he got the money. At that point, Williams claimed his girlfriend
had given him the money.
Officer Richardson searched the vehicle. Inside a “standard glove compartment door”
with an opaque exterior, he found a semi-automatic handgun and a bag containing four small
baggies of a white powdery substance later identified as 20.54 grams of cocaine.
At trial, Special Agent Jeff Perry of the Virginia State Police was qualified as an expert in
drug distribution. He opined the packaging of the four separate baggies, the amount of cocaine
found, and the presence of a firearm were factors inconsistent with the personal use of illicit
drugs.
Joslin Foster, Williams’ girlfriend, testified at trial that in January, 2014, she had received
a settlement of nearly $30,000 from a car accident. She stated that on May 1, two days before
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the traffic stop, she gave Williams $4,000 to take care of her children while she was out of town
for several weeks for a work trip. No statements by appellant were entered into evidence at trial.
The trial court specifically found, regarding the conspiracy charge,
when you’re reviewing a case and listening to the evidence, often
there’s just not one single piece of evidence that jumps out. When
I look at the totality of it and the circumstances, I do find that they
– that each of them knew the drugs were in the car. And the
conspiracy in my mind, as I said, they’re each playing an element.
And one is the driver, one holding the cash, one in control of the
drugs and the gun . . . .
The trial court found the appellant guilty of possession with intent to distribute a schedule
I or II controlled substance, conspiracy to possess with intent to distribute a schedule I or II
controlled substance, possession of a firearm while in possession of a schedule I or II controlled
substance, and possession of a firearm by a convicted felon. We review appellant’s conspiracy
conviction on appeal to this Court.1
II. ANALYSIS
Appellant challenges the sufficiency of the evidence to support his conviction for
conspiracy to possess with intent to distribute a schedule I or II controlled substance. He argues
the evidence was insufficient to prove there was any express or implied agreement between the
appellant and any other person to possess cocaine with the intent to distribute it. Appellant
contends there was no evidence, direct or circumstantial, from which the trial court could infer
an agreement or meeting of the minds between appellant and his co-defendants.
In our review of the sufficiency of the evidence to support a criminal conviction, we
consider “the evidence in the light most favorable to the Commonwealth.” Kovalaske v.
Commonwealth, 56 Va. App. 224, 226, 692 S.E.2d 641, 643 (2010) (quoting Pryor v.
Commonwealth, 48 Va. App. 1, 4, 628 S.E.2d 47, 48 (2006)). “Viewing the record through this
1
Appellant raised additional assignments of error concerning his other convictions. His
petition for appeal was denied on those assignments of error.
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evidentiary prism requires us to discard the evidence of the accused in conflict with that of the
Commonwealth, and regard as true all the credible evidence favorable to the Commonwealth and
all fair inferences to be drawn therefrom.” Id. (quoting Cooper v. Commonwealth, 54 Va. App.
558, 562, 680 S.E.2d 361, 362 (2009)). The dispositive question this Court must resolve is
“whether any rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.” Anaman v. Commonwealth, 64 Va. App. 379, 394, 768 S.E.2d 700, 708
(2015) (quoting Crowder v. Commonwealth, 41 Va. App. 658, 663, 588 S.E.2d 384, 387 (2003)).
We will affirm the conviction unless the fact finder was “plainly wrong” or the conviction lacked
“evidence to support it.” Kovalaske, 56 Va. App. at 231, 692 S.E.2d at 645 (quoting Bolden v.
Commonwealth, 275 Va. 144, 148, 654 S.E.2d 584, 586 (2008)).
“Conspiracy is defined as ‘an agreement between two or more persons by some
concerted action to commit an offense.’” Cartwright v. Commonwealth, 223 Va. 368, 372, 288
S.E.2d 491, 493 (1982) (quoting Falden v. Commonwealth, 167 Va. 542, 544, 189 S.E. 326, 327
(1937)). “A conspiracy is committed when the agreement to commit the offense is complete[,]
regardless [of] whether any overt act in furtherance of commission of the substantive offense is
initiated.” Ramsey v. Commonwealth, 2 Va. App. 265, 270, 343 S.E.2d 465, 469 (1986).
“There can be no conspiracy without an agreement, and the Commonwealth must prove beyond
a reasonable doubt that an agreement existed.” Feigley v. Commonwealth, 16 Va. App. 717,
722, 432 S.E.2d 520, 524 (1993) (quoting Floyd v. Commonwealth, 219 Va. 575, 580, 249
S.E.2d 171, 174 (1978)). “Nevertheless, a conspiracy may be proved by circumstantial
evidence.” Floyd, 219 Va. at 580, 249 S.E.2d at 174. “Indeed, from the very nature of the
offense, it often may be established only by indirect and circumstantial evidence.” Id. Thus,
“[p]roof of an explicit agreement is not required.” Combs v. Commonwealth, 30 Va. App. 778,
787, 520 S.E.2d 388, 392 (1999). Rather, “conspiracy may be inferred from the overt actions of
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the parties, and a common purpose and plan may be inferred from a development and collocation
of circumstances.” Id. at 787, 520 S.E.2d at 392-93 (quoting McQuinn v. Commonwealth, 19
Va. App. 418, 425, 451 S.E.2d 704, 708 (1994)).
Here, the evidence, in the light most favorable to the Commonwealth, established three
people were in a Dodge Charger that was stopped for suspicion of DUI. The glove box, which
was described as “standard,” contained a firearm and 20.54 grams of cocaine in four baggies.
Williams, the car’s rear passenger, possessed over $3,700 in cash, divided by denominations. He
gave police inconsistent statements about the money’s source, first stating he found it inside the
vehicle and later saying his girlfriend gave it to him. After reviewing the totality of the
circumstances, the trial court found, as a matter of fact, that all three people in the car were
aware of the presence of the cocaine. The trial court then made the inference that, “they’re
playing an element. And one is the driver, one holding the cash, one in control of the drugs and
the gun.”
In Virginia, when “it has been shown that the defendants ‘by their acts pursued the same
object, one performing one part and the others performing another part so as to complete it or
with a view to its attainment, the [fact-finder] will be justified in concluding that they were
engaged in a conspiracy to effect that object.’” Brown v. Commonwealth, 10 Va. App. 73, 78,
390 S.E.2d 386, 388 (1990) (quoting Amato v. Commonwealth, 3 Va. App. 544, 552, 352 S.E.2d
4, 9 (1987)). The trial court relied on this principle in concluding that appellant was conspiring
with at least one other person to possess cocaine with intent to distribute it. Here, however,
appellant was not “performing one part” at all; he was merely the front seat passenger of the
vehicle. He committed no “acts” by which he could have pursued the same object as the other
individuals in the vehicle. Prior cases applying this principle all make clear this distinction; the
actions of the defendant must point to “one performing one part and the other performing
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another part so as to complete it or with a view to its attainment.” See Merritt v.
Commonwealth, 57 Va. App. 542, 558, 704 S.E.2d 158, 166-67 (2011) (en banc) (finding
sufficient evidence of conspiracy to possess where evidence, including defendant’s unusual
actions at a bus station, proved he served as the “muscle” or “lookout” as drugs were transported
for the purpose of further distribution); Charity v. Commonwealth, 49 Va. App. 581, 586-87, 643
S.E.2d 503, 505-06 (2007) (finding sufficient evidence of conspiracy to escape from prison
where, despite no evidence of any conversation, appellant and another inmate ran toward a truck,
and appellant pushed the driver to the ground and jumped into the driver’s seat alongside the
other inmate).
Additionally, prior cases upholding conspiracy convictions contain numerous factors that
are absent here. Roy and Williams did not testify at trial, nor made any statements at the scene
regarding the cocaine or any possible agreement between the parties. See Anderson v.
Commonwealth, 52 Va. App. 501, 509, 664 S.E.2d 514, 518 (2008), aff’d, 278 Va. 419, 683
S.E.2d 536 (2009) (finding sufficient evidence of conspiracy where co-conspirator’s testimony
established an explicit agreement to carry out a larceny). Appellant also did not testify at trial,
nor were any of his statements admitted into evidence. See Edwards v. Commonwealth, 18
Va. App. 45, 48-49, 441 S.E.2d 351, 353-54 (1994) (finding sufficient evidence of conspiracy to
possess a controlled substance with the intent to distribute based on defendant’s statement that he
knew what the other buyer was “going to make off that”). There were no “owe sheets” present
in the vehicle or on any of the individuals’ persons indicating an agreement between them to
distribute the cocaine. See Merritt, 57 Va. App. at 556, 704 S.E.2d at 165 (2011) (finding that
evidence of defendant’s nickname in a “drug notebook” in possession of co-conspirator was a
factor supporting conspiracy conviction). Additionally, appellant’s mere proximity to the
weapon and the drugs is not enough alone to show a shared criminal intent. See, e.g., Jones v.
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Commonwealth, 208 Va. 370, 373-74, 157 S.E.2d 907, 909-10 (1967) (noting, in an analysis
under the “shared criminal intent” standard for aiding and abetting, the principle that a
defendant’s presence and consent during a crime cannot, without more, constitute a commonality
of intent). Nor is the presence of a large sum of cash on one of the occupants sufficient to
impute knowledge of an agreement. “[T]he existence of intent cannot be based upon speculation
or surmise.” Adkins v. Commonwealth, 217 Va. 437, 440, 229 S.E.2d 869, 871 (1976).
The trial court concluded that there was evidence of conspiracy between the occupants of
the vehicle because appellant was “the one in control of the drugs and the gun” in their joint
effort to distribute cocaine. Appellant, as the front seat passenger of the car, was near the
cocaine located in the glove box. However, this proximity alone does not establish that he
actually possessed the cocaine. While proximity is a factor that may be considered in
determining whether the accused possessed illegal drugs, “[m]ere proximity to [a] controlled
substance is not enough to establish possession.” Peterson v. Commonwealth, 5 Va. App. 389,
402, 363 S.E.2d 440, 448 (1987). Appellant’s location in the car, without more, is insufficient to
prove that he possessed the cocaine. His position as the front seat passenger did not establish
that he was “in control” of the cocaine in the glove box; therefore, it also did not support the trial
court’s finding that he had agreed to conspire with the other occupants of the vehicle to possess a
controlled substance with the intent to distribute it.
Here, the evidence, in its totality, fails to demonstrate anything beyond the fact that
appellant was the front seat passenger in a car containing cocaine in the glove box, packaged into
small baggies indicating distribution, with another occupant having over $3,000 in divided
denominations. The record is devoid of any statements or actions to support a finding that there
was an agreement between appellant and any other person. On appeal, this Court considers
cases challenging the sufficiency of the evidence under a standard of review that is difficult to
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satisfy. We presume the judgment of the trial court to be correct and will reverse only if the trial
court’s decision is plainly wrong or without evidence to support it, and will not overturn a
conviction on appeal unless no “rational trier of fact” could have reached that conclusion. With
this standard in mind, there is simply no evidence in the record to support the trial court’s
inference that appellant was “the one in control of the drugs and the gun” in a conspiracy
involving the other persons in the Dodge Charger. Due to a lack of any evidence establishing an
agreement between the occupants of the vehicle, the evidence was insufficient as a matter of law
to establish a conspiracy to possess with the intent to distribute cocaine.
III. CONCLUSION
The evidence at trial was insufficient to prove appellant agreed to distribute cocaine with
any other individual. For this reason, we reverse appellant’s conviction for conspiracy and
dismiss the indictment.
Reversed and dismissed.
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