COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Coleman and Bumgardner
Argued at Salem, Virginia
LILLIE ROSENBAUM COMBS, S/K/A
LILLIE MARIE COMBS
OPINION BY
v. Record No. 1846-98-3 CHIEF JUDGE JOHANNA L. FITZPATRICK
OCTOBER 26, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF PITTSYLVANIA COUNTY
B. A. Davis, III, Judge Designate
Jesse W. Meadows, III, for appellant.
Virginia B. Theisen, Assistant Attorney
General (Mark L. Earley, Attorney General,
on brief), for appellee.
Lillie Marie Combs (appellant) was convicted in a joint
bench trial with her husband, Nathan Allan Combs, of
solicitation of money or other thing of value in connection with
a placement or adoption, in violation of Code § 63.1-220.4, and
conspiracy to solicit money or other thing of value in
connection with a placement or adoption, in violation of Code
§§ 18.2-22 and 63.1-220.4. 1 On appeal, she contends the evidence
was insufficient to convict her of the offenses charged. For
the following reasons, we affirm.
1
Appellant was originally indicted for two counts of
solicitation of money or other thing of value in connection with
a placement or adoption under Code § 63.1-220.4 and one count of
conspiracy. However, after trial, at the sentencing hearing,
the trial court granted appellant's motion to set aside one of
the solicitation counts.
I. BACKGROUND
Under familiar principles of appellate review, we examine
the evidence in the light most favorable to the Commonwealth,
the prevailing party below, granting to it all reasonable
inferences fairly deducible therefrom. See Juares v.
Commonwealth, 26 Va. App. 154, 156, 493 S.E.2d 677, 678 (1997).
The judgment of a trial court, sitting without a jury, is
entitled to the same weight as a jury verdict and will not be
set aside unless it appears from the evidence that it is plainly
wrong or without evidence to support it. See Stevens v.
Commonwealth, 14 Va. App. 238, 240, 415 S.E.2d 881, 882-83
(1992).
The evidence established that appellant and Nathan Combs
(Combs) married in January 1996. Their daughter, A.C., was born
October 23, 1996. The family moved to a rented trailer in a
mobile home park in April 1997. By June 1997, appellant and
her husband were experiencing severe financial difficulties.
Neither appellant nor Combs had a steady job, and their public
assistance payments expired. They sold a vehicle, furniture,
and other items to pay for ordinary household necessities.
On June 13, 1997, appellant contacted Bill Devlin at
Catholic Charities, an adoption agency in Roanoke. Devlin met
with appellant and Combs at their home on June 20, 1997 and
discussed with the couple placing A.C. for adoption through the
agency. Appellant and Combs stated they were under a great deal
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of emotional and financial stress. Combs asked if the agency or
the potential adoptive couple could "help out with their
situation." Devlin explained that any exchange of money or
property in return for the child would be a violation of the
law. Devlin agreed to return in a few days with the necessary
legal documents and to take custody of A.C.
Devlin returned to appellant's home as agreed on June 23,
1997, but found no one at the trailer. Devlin saw appellant
later that day, and she advised him that her mother was going to
keep the child. Subsequently, appellant called Devlin and said
she wanted to proceed with the adoption. However, Devlin never
heard from appellant again.
Debbie Farthing (Farthing) testified that in July 1997, one
month after appellant's initial meeting with Devlin, she met
with appellant and Combs at their trailer. Farthing did not
know appellant or Combs but understood that they were to be
evicted from the trailer and that they wanted someone to take
their baby. During the meeting, appellant sat and held the baby
in the same room with Farthing and Combs. Combs said they
wanted someone to take the baby, wanted $1,500 to buy a truck
and wanted to leave town. Appellant offered no objection.
Combs said an adoption agency "was wanting to take the baby" but
that he "wasn't going to do it" because they were going to "make
thousands of dollars off the baby." Combs said he was not going
to "give the baby away free." Farthing took A.C. with her after
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the meeting but returned the baby to appellant and Combs the
same day because Farthing's husband refused to cooperate with
the plan.
Thelma Farrar (Mrs. Farrar) was the owner of the mobile
home park where the Combs lived. She visited appellant's
trailer in late June or early July. At that time, appellant was
in the living room holding her baby. Combs told Mrs. Farrar
that he would give her the baby in exchange for $1,000.
Appellant again offered no objection. Combs also commented, "I
wouldn't be selling her, there's not enough money in the world
to buy my baby."
Combs worked periodically for Bobby Farrar (Mr. Farrar) in
a security business. While working on July 19, 1997, Combs
asked Mr. Farrar if he and his wife had decided whether they
wanted A.C. Combs said he now wanted $2,000 for the child.
Combs indicated he wanted to use the money to catch up on his
rent and buy a cheap car.
On July 23, 1997, Mrs. Farrar confronted Combs outside the
trailer about his overdue rent payments. Combs asked Mrs.
Farrar to "give [him] a little money" and accept A.C. for the
rent he owed. Mrs. Farrar refused the offer.
Mrs. Farrar saw Combs outside his trailer two days later.
Combs said: "[T]hese nice people in the trailer are from Texas
and they're going to take [A.C.]. I just want to see if you
want her, because I would rather you have her than these
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people." Combs told Farrar the Texas couple was going to give
them $3,000 for the baby. Mrs. Farrar responded that she did
not have that kind of money. Appellant left the trailer and
asked Mrs. Farrar to call Molly, Combs's mother, and ask her to
bring A.C.'s birth certificate. Mrs. Farrar saw the Texas
couple put A.C.'s things in their car. The evidence also
established that the Singletons, a couple from Texas, took A.C.
from appellant's home to Texas within twenty-four hours of their
having met Combs and appellant. However, the child was
subsequently returned to Virginia and placed in the custody of
Combs's mother.
Appellant testified that she and her husband pursued an
adoption for A.C. because of their financial situation but that
they did not attempt to receive money in return. The trial
judge accepted the Commonwealth's evidence and rejected
appellant's testimony. Accordingly, appellant was convicted of
solicitation of money or other thing of value in connection with
a placement or adoption, in violation of Code § 63.1-220.4, and
conspiracy to solicit money or other thing of value in
connection with a placement or adoption, in violation of Code
§§ 18.2-22 and 63.1-220.4.
II. SOLICITATION OF MONEY
Code § 63.1-220.4, the statute under which appellant was
convicted, prohibits, inter alia, the solicitation of money or
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any thing of value in connection with the placement or adoption
of a child. Under Code § 63.1-220.4,
[n]o person or child-placing agency shall
charge, pay, give, or agree to give or
accept any money, property, service or other
thing of value in connection with a
placement or adoption or any act undertaken
pursuant to this chapter . . . . No person
shall advertise or solicit to perform any
activity prohibited by this section. Any
person violating the provisions of this
section shall be guilty of a Class 6 felony.
(Emphasis added).
In the instant case, appellant contends the evidence was
insufficient to establish either that she violated the statute
or that she "counseled, enticed or induced" another to violate
Code § 63.1-220.4. Specifically, she argues that "[t]here is
absolutely no evidence whatsoever to prove beyond a reasonable
doubt that [she] committed criminal solicitation." However,
appellant was not charged with criminal solicitation, in
violation of Code § 18.2-29, 2 which requires the Commonwealth to
prove that the defendant intended to induce another to commit a
crime. See Ford v. Commonwealth, 10 Va. App. 224, 227, 391
2
Code § 18.2-29 provides:
Any person who commands, entreats, or
otherwise attempts to persuade another
person to commit a felony, shall be guilty
of a Class 6 felony. Any person age
eighteen or older who commands, entreats, or
otherwise attempts to persuade another
person under age eighteen to commit a
felony, shall be guilty of a Class 5 felony.
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S.E.2d 603, 604 (1990). To the contrary, appellant was charged
with violating Code § 63.1-220.4 by soliciting payment of money
or other thing of value with the placement of A.C. 3
"Generally, the words and phrases used in a statute should
be given their ordinary and usually accepted meaning unless a
different intention is fairly manifest." Woolfolk v.
Commonwealth, 18 Va. App. 840, 847, 447 S.E.2d 530, 534 (1994).
The commonly accepted definitions for the word "solicit"
include: "to make petition to," "entreat, importune," "to
approach with a request or plea (as in selling or begging)."
Webster's Third New International Dictionary 2169 (1993). Code
§ 63.1-220.4 contains a clear prohibition against the request or
plea for payment of money or any other thing of value in
connection with an adoption or the placement of a child.
In the instant case, the Commonwealth's evidence proved
that Combs, in appellant's presence, attempted to obtain money
from Farthing, Mrs. Farrar, and the Singletons in exchange for
3
The amended indictment charged appellant with the
following:
On or about July 18, 1997, through July 25,
1997, in the County of Pittsylvania,
Virginia, Lillie Rosenbaum Combs did
unlawfully and feloniously, in connection
with the placement or adoption of A.M.C.,
born October 23, 1996, solicit payment of
money or other thing of value not
specifically allowed by Code
Section 63.1-220.4, Code of Virginia.
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placing their child, A.C., for adoption. Combs commented that
he was not going to give A.C. away for free because he could
make thousands of dollars for the child. Appellant did not
object to Combs's comment or to his offers to sell the child.
Additionally, it was appellant who first contacted Devlin, only
to learn that an adoption through the agency would not result in
the payment of any money to her and her husband. In fact, when
Devlin saw appellant a few days later, she falsely told him that
she had made arrangements for A.C. to stay with a grandmother.
Finally, while the Singletons were present at the trailer,
appellant tried to obtain the child's birth certificate to
facilitate the adoption.
The trial judge accepted the Commonwealth's evidence and
rejected appellant's testimony that she did not attempt to
receive money in return for the placement or adoption of A.C.
"The credibility of the witnesses and the weight accorded the
evidence are matters solely for the fact finder who has the
opportunity to see and hear that evidence as it is presented."
Sandoval v. Commonwealth, 20 Va. App. 133, 138, 455 S.E.2d 730,
732 (1995). "In its role of judging witness credibility, the
fact finder is entitled to disbelieve the self-serving testimony
of the accused and to conclude that the accused is lying to
conceal his guilt." Marable v. Commonwealth, 27 Va. App. 505,
509-10, 500 S.E.2d 233, 235 (1998).
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Considering the totality of facts and attendant
circumstances, the evidence was sufficient to prove beyond a
reasonable doubt that appellant was guilty of violating Code
§ 63.1-220.4 by soliciting the payment of money in connection
with the placement of her child.
III. CONSPIRACY
Additionally, appellant was convicted of conspiring to
violate Code § 63.1-220.4. On appeal, she contends the evidence
was insufficient to prove a conspiracy because the Commonwealth
failed to prove that appellant and Combs agreed to unlawfully
solicit payment of money or other thing of value in connection
with the placement of A.C. We disagree.
"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 (1982)). Proof of an explicit agreement is
not required, and the Commonwealth may, and frequently must,
rely on circumstantial evidence to establish the conspiracy.
See Stevens v. Commonwealth, 14 Va. App. 238, 241, 415 S.E.2d
881, 883 (1992). "[A] conspiracy may be inferred from the overt
actions of the parties, and a common purpose and plan may be
inferred from a development and collocation of circumstances."
McQuinn v. Commonwealth, 19 Va. App. 418, 425, 451 S.E.2d 704,
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708 (1994) (internal quotations and citations omitted), aff'd en
banc, 20 Va. App. 753, 460 S.E.2d 624 (1995).
Where . . . 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) (citations omitted).
The fact that the perpetrators of a crime are husband and
wife does not, without more, create an inference that they
conspired to commit the offense charged. See Jones v.
Commonwealth, 11 Va. App. 75, 82, 396 S.E.2d 844, 848 (1990). A
conspiracy, even one between husband and wife, requires a
showing of an agreement between the conspirators. See, e.g.,
Stumpf v. Commonwealth, 8 Va. App. 200, 206, 379 S.E.2d 480, 484
(1989); Henry v. Commonwealth, 2 Va. App. 194, 197, 342 S.E.2d
655, 656 (1986).
The evidence demonstrated a concerted plan of action by
appellant and her husband from June 13 to July 25, 1997, to
place their child in return for a financial payment. Appellant
first contacted an adoption agency about the matter. However,
Devlin advised appellant and Combs that they would receive no
remuneration in the arrangement, and they withdrew their
request. While appellant held the child in the same room, Combs
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subsequently negotiated with Farthing to exchange the baby for
$1,500 and offered the baby to Farrar for $1,000. Appellant,
the child's mother, raised no objection and did not intervene.
Combs admitted on July 25, 1997 that they had agreed to give the
baby to the Singletons for $3,000. 4 While the Singletons were
present at the trailer, appellant tried to have A.C.'s birth
certificate delivered.
Where two or more people act to pursue the same object,
such as appellant and Combs, "one performing one part and the
other 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." Amato v. Commonwealth, 3 Va. App. 544, 552, 352 S.E.2d
4, 9 (1987) (quoting 16 Am. Jur. 2d Conspiracy § 42 (1979)).
Considering all of the attendant circumstances, the evidence was
sufficient to prove beyond a reasonable doubt that appellant and
her husband conspired to solicit money in connection with an
adoption and, in fact, did so.
4
We need not address appellant's argument that Combs's
statements may not be attributed to her as a co-conspirator.
Appellant did not object to the statements as being inadmissible
at the time they were offered into evidence, and her claim is
barred on appeal. See Rule 5A:18; Marlowe v Commonwealth, 2 Va.
App. 619, 621, 347 S.E.2d 167, 168 (1986) ("To be timely, an
objection must be made when the occasion arises -- at the time
the evidence is offered or the statement made.").
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For the foregoing reasons, appellant's convictions are
affirmed.
Affirmed.
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