                               COURT OF APPEALS OF VIRGINIA


Present: Judges Frank, Humphreys and Haley
Argued at Salem, Virginia


LINDA ANNE BROWN
                                                              MEMORANDUM OPINION * BY
v.     Record No. 3168-06-3                                    JUDGE ROBERT P. FRANK
                                                                   MARCH 11, 2008
COMMONWEALTH OF VIRGINIA


                     FROM THE CIRCUIT COURT OF AUGUSTA COUNTY
                                 Thomas H. Wood, Judge

                 Tate C. Love (Black, Noland & Read, P.L.C., on brief), for
                 appellant.

                 Karen Misbach, Assistant Attorney General II (Robert F.
                 McDonnell, Attorney General, on brief), for appellee.


       Linda Anne Brown, appellant, was convicted, in a bench trial, of conspiring to distribute

methamphetamine, in violation of Code § 18.2-256. On appeal, she contends the trial court erred in

finding the evidence sufficient to convict. For the reasons stated, we affirm.

                                          BACKGROUND

       On April 5, 2004, at around noon, Crystal Claytor arrived at appellant’s home. Claytor was

meeting Holly Sprouse, who had arrived before her and was seated on the floor beside appellant’s

recliner. Claytor noticed that Sprouse was writing on a manila envelope. In the presence of both

Claytor and appellant, Sprouse wrote “two ounces” and “$3500” on the envelope, 1 as well as the

name “Gator.” Appellant saw Sprouse put two ounces of methamphetamine and cash into the


       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
       1
         The manila envelope had the following inscription, “3500 cash and 2 oz. (1) 28.2, (2)
27.8, 943-5047, Gator.”
envelope, then fold and tape it closed. Sprouse handed the envelope to appellant without

explanation. Appellant accepted the envelope, tucked it into the recliner beside her, and said, “This

is in my hands now. Someone will have to kill me first before they get their hands on this. It’s safe

with me.”

       Claytor and Sprouse left with one ounce of methamphetamine and drove to Colonial Mall in

Augusta County. Police, acting on a tip from a confidential informant, stopped Sprouse’s car when

she and Claytor arrived at the mall. A search of the car revealed $363 in U.S. currency and various

“stashes” of methamphetamine located inside the vehicle.

       Deputy Jonathan Sholes of the Augusta County sheriff’s office obtained an arrest warrant

for appellant and, with other officers, went to appellant’s house to execute the warrant that same

evening. Finding appellant at home, Sholes told her he had information regarding the envelope

Sprouse had left with her. Appellant retrieved the envelope from a dresser drawer and gave it to the

deputy, but denied any knowledge of its contents. The envelope contained the two ounces of

methamphetamine 2 and $3,500 as described by Claytor.

       Deputy Sholes testified at trial that the 53.71 grams of methamphetamine found in the

envelope was inconsistent with personal use.

       Appellant testified and denied knowing the contents of the envelope. The trial court found

appellant’s testimony unworthy of belief. The court determined that appellant knew

methamphetamine was in the envelope and found her guilty of conspiracy to distribute.

       This appeal follows.

                                            ANALYSIS

       Appellant’s sufficiency argument has two components: (1) the evidence does not support

the trial court’s finding that appellant was aware that the manila envelope contained


       2
           The drug analysis indicated 53.71 grams of methamphetamine.
                                                -2-
methamphetamine; and (2) no evidence supports a finding that there was an agreement between

appellant and Sprouse to distribute the drugs.

        When faced with a challenge to the sufficiency of the evidence, we “‘presume the

judgment of the trial court to be correct’” and reverse only if the trial court’s decision is “‘plainly

wrong or without evidence’” to support it. Kelly v. Commonwealth, 41 Va. App. 250, 257, 584

S.E.2d 444, 447 (2003) (en banc) (quoting Davis v. Commonwealth, 39 Va. App. 96, 99, 570

S.E.2d 875, 876-77 (2002)). Put another way, a reviewing court does not “‘ask itself whether it

believes that the evidence at the trial established guilt beyond a reasonable doubt.’” Jackson v.

Virginia, 443 U.S. 307, 318-19 (1979) (emphasis in original) (quoting Woodby v. INS, 385 U.S.

276, 282 (1966)). We must instead ask whether “‘any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.’” Kelly, 41 Va. App. at 257, 584

S.E.2d at 447 (emphasis in original) (quoting Jackson, 443 U.S. at 319). “‘This familiar standard

gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony,

to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.’” Id.

at 257-58, 584 S.E.2d at 447 (quoting Jackson, 443 U.S. at 319).

        The evidence clearly supports the trial court’s finding that appellant was aware of the

contents of the envelope. Claytor testified appellant saw Sprouse put the methamphetamine

inside the envelope.

        “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)). The crime is “complete when the parties agree to commit an offense,” and “[n]o overt

act in furtherance of the underlying crime is necessary.” Gray v. Commonwealth, 260 Va. 675,

680, 537 S.E.2d 862, 865 (2000). Although no overt act is necessary to establish a conspiracy,

                                                  -3-
the parties’ “‘overt conduct’” may support a finding of the existence of a conspiracy. Poole v.

Commonwealth, 7 Va. App. 510, 513, 375 S.E.2d 371, 372 (1988) (quoting United States v.

Harris, 433 F.2d 333, 335 (4th Cir. 1970)).

       “In order to establish the existence of a conspiracy, as opposed to mere aiding and

abetting, the Commonwealth must prove ‘the additional element of preconcert and connivance

not necessarily inherent in the mere joint activity common to aiding and abetting.’” Zuniga v.

Commonwealth, 7 Va. App. 523, 527, 375 S.E.2d 381, 384 (1988) (quoting United States v.

Peterson, 524 F.2d 167, 174 (4th Cir. 1975)). While proof of the existence of an agreement is an

essential element to establish the crime of conspiracy, see Fortune v. Commonwealth, 12

Va. App. 643, 647, 406 S.E.2d 47, 48 (1991), proof of an explicit agreement is not required, and

the Commonwealth may, and frequently must, rely on circumstantial evidence to establish the

conspiracy. Stevens v. Commonwealth, 14 Va. App. 238, 241, 415 S.E.2d 881, 883 (1992).

When a conviction is based on circumstantial evidence, the evidence “‘must be consistent with

guilt and inconsistent with innocence and must exclude every reasonable hypothesis of

innocence.’” Feigley, 16 Va. App. at 724, 432 S.E.2d at 525 (quoting Bishop v. Commonwealth,

227 Va. 164, 169, 313 S.E.2d 390, 393 (1984)).

       At oral argument, appellant conceded that there was an agreement between appellant and

Sprouse to safeguard the envelope. However, appellant denies that the agreement involved the

distribution of drugs or that appellant knew the exact contents of the envelope. The only issue

before us, then, is the nature and content of the agreement.

       We find that the evidence, when viewed in the light most favorable to the

Commonwealth, see Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537

(1975), indicates appellant knew the contents of the envelope and that she was safekeeping drugs

and cash for Sprouse. Appellant accepted the envelope without asking any questions about what

                                               -4-
Sprouse expected from her; Sprouse handed the envelope over to appellant without giving her

any instructions. This mutual silence as to the handling of the envelope supports the reasonable

conclusion that appellant already knew what she was expected to do, namely to keep the

envelope safely in her possession for Sprouse. The trial court could infer from appellant’s

remarks that she would guard the envelope and its contents with her life that appellant knew the

significance of her responsibility, as well as the significance and value of the items inside of the

envelope.

       The question then becomes whether the agreement between appellant and Sprouse

included the distribution of methamphetamine. Taking all of the circumstances into account, we

find sufficient evidence in the record for the trial court to have reasonably concluded that

appellant knew Sprouse was intending to distribute the drugs and that appellant and Sprouse

acted together to accomplish that purpose.

       First, we find that the quantity of the drugs entrusted to appellant indicates that the drugs

were not intended for personal use. By virtue of the inscription on the envelope, appellant knew

that Sprouse entrusted her with two ounces of methamphetamine. Deputy Sholes testified that

possession of that amount of methamphetamine was inconsistent with personal use. Hudak v.

Commonwealth, 19 Va. App. 260, 263, 450 S.E.2d 769, 771 (1994) (holding that, in a prosecution

for conspiracy to distribute drugs, expert testimony is necessary to show that drugs were not

intended for personal use). We find that based upon this expert testimony, the trial court was able to

reasonably conclude that appellant knew that Sprouse was intending to distribute the

methamphetamine rather than to use it personally.

       Second, the envelope contained both the methamphetamine and a substantial amount of

cash, $3,500. The mere presence of drugs and a large amount of cash is indicative of a scheme

to distribute drugs. Here, the scheme to distribute drugs to another person was even more

                                                 -5-
explicit. The inscription on the outside of the envelope detailed the quantity of the drugs, the

amount of cash, and included a name and phone number of a third person. From the presence of

the drugs, the large amount of cash and the third party’s contact information, the trial court could

reasonably infer that appellant knew Sprouse intended to transfer the drugs and the cash to

another person. Appellant did not need to know whether that third person was a buyer or a seller

of drugs; it is enough that she was aware that the drugs and cash were “in transit” to another

person and that Sprouse was in the business of exchanging drugs for money.

               “Where it is shown that the defendants by their acts pursued the
               same object, one performing one part and the other performing
               another part so as to complete it or with a view to its attainment,
               the jury will be justified in concluding that they were engaged in a
               conspiracy to effect that object.” 16 Am. Jur. 2d Conspiracy § 42
               (1979). . . . “[L]iability as a conspirator is not dependent on
               knowledge of the entire scope of the conspiracy. Knowledge need
               not extend to all the details of the conspiracy, the identity of the
               other conspirators, the part each member of the conspiracy is to
               play, or how the spoils of the conspiracy are to be divided.” 16
               Am. Jur. 2d Conspiracy § 14 (1979)

Amato v. Commonwealth, 3 Va. App. 544, 552, 352 S.E.2d 4, 9 (1987) (other citation omitted).

       Third, appellant’s silence when she accepted the envelope, and Sprouse’s silence when

she handed the envelope to appellant, signifies a prior agreement between the two with regard to

the envelope and its contents. It is reasonable to conclude that appellant and Sprouse had a prior

agreement about appellant’s role with regard to the envelope, and appellant knew exactly what

was expected of her when she accepted the drugs and cash for safekeeping. From appellant’s

failure to inquire about the details of the transaction, and from appellant’s statements that she

would guard the contents of the envelope with her life, the trial court could reasonably infer that

appellant knew that she was guarding the drugs and the cash as part of a larger and more

significant plan that involved the exchange of drugs for money.




                                                -6-
        Finally, Sprouse packaged the drugs and cash in the envelope in front of appellant.

Sprouse never tried to conceal the contents of the envelope in an effort to shield appellant from

criminal liability or to prevent appellant from becoming a witness against Sprouse. From this, the

trial court was entitled to conclude that appellant was already a willing participant in the criminal

enterprise, was not a stranger to this transaction, and had previously been exposed to Sprouse’s plan

to sell the methamphetamine.

        From all the circumstances, the trial court was entitled to conclude that the agreement

between appellant and Sprouse contemplated the distribution of methamphetamine and that

appellant’s role in this enterprise was to hold the drugs for safekeeping while Sprouse sold the

drugs in smaller quantities. This duty to Sprouse gave appellant a stake in the ongoing criminal

enterprise of distribution of methamphetamine. Appellant acknowledged the significance of her

responsibility by offering to guard the envelope with her life. Accordingly, we find that it was

reasonable for the trial court to conclude, under the facts of this case, that appellant and Sprouse

acted with a mutual understanding as to the unlawful distribution of methamphetamine and that

they cooperated and acted together in the accomplishment of that purpose.

        The judgment of the trial court is affirmed.

                                                                                             Affirmed.




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