                     COURT OF APPEALS OF VIRGINIA


Present:  Chief Judge Fitzpatrick, Judge Annunziata and
          Senior Judge Duff
Argued at Alexandria, Virginia


KEVI COMAS, S/K/A
 KEVI SALVADOR COMAS
                                           MEMORANDUM OPINION * BY
v.   Record No. 1216-99-2         CHIEF JUDGE JOHANNA L. FITZPATRICK
                                                JUNE 6, 2000
COMMONWEALTH OF VIRGINIA


           FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                     James B. Wilkinson, Judge

           Andrea C. Long (David E. Boone; Boone, Beale,
           Cosby & Long, on brief), for appellant.

           Amy L. Marshall, Assistant Attorney General
           (Mark L. Earley, Attorney General, on brief),
           for appellee.


     Kevi Salvador Comas (appellant) was convicted in a bench

trial of distribution of heroin, in violation of Code § 18.2-248,

and conspiracy to distribute heroin, in violation of Code

§ 18.2-22. 1   The sole issue raised on appeal is whether the

evidence was sufficient to convict appellant of the charges.

Finding the evidence insufficient on both charges, we reverse.



     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
     1
       Appellant was also indicted for possession of heroin with
intent to distribute, in violation of Code § 18.2-248.1.
However, the trial court merged the possession charge with the
distribution charge.
                                I.

     Under familiar principles of appellate review, we examine

the evidence in the light most favorable to the Commonwealth,

the prevailing party below, granting to that evidence all

reasonable inferences fairly deducible therefrom.   See Juares v.

Commonwealth, 26 Va. App. 154, 156, 493 S.E.2d 677, 678 (1997).

So viewed, the evidence established that on October 15, 1998,

Detective Mark Dunn (Dunn) arrested Anthony Williams (Williams)

for an outstanding narcotics warrant.   Williams agreed to

cooperate with the police and work as a confidential informant

in the controlled purchase of narcotics from "several Dominican"

males.   He knew the individuals by their nicknames "Bumler" and

"Victor," later identified as Felix Martinez and Daniel

Martinez.   Williams had no contact with appellant, a 23-year-old

taxicab driver from New York, in arranging the controlled

purchase.

     Under the direction of Dunn, Williams paged two numbers

with a New York area code and within five minutes received a

return phone call from the Econo Lodge on Midlothian Turnpike in

Richmond, Virginia.   At that time, Williams arranged to purchase

three ounces of heroin, paying $3,800 for one ounce and the

other two ounces "were going to be received on consignment."

The controlled purchase was going to take place the following

day at a yet to be determined location.


                               - 2 -
     Police set up surveillance at the Econo Lodge on October

15, 1998.   A "green Windstar van with New York tags" was in the

parking lot.   Later that night, Detective Dunn saw three

Dominican males leave Room 205 and go to a Waffle House

restaurant on Midlothian Turnpike.      "They stayed at the Waffle

House for a short period of time and then they returned and went

back into Room 205 at the Econo Lodge."     The room was registered

in appellant's name.

     The following morning, Williams received a page from the

Econo Lodge and made arrangements to meet at a bowling alley on

Belt Boulevard.   At approximately 12:30 p.m., the surveillance

units observed all three men exit Room 205, get into the

Windstar van, and drive to the bowling alley on Belt Boulevard.

Felix Martinez drove the van, Daniel Martinez sat in the front

passenger seat, and appellant sat in the rear bench seat.     After

arriving at the bowling alley, the men waited approximately two

minutes, exited the van, and went inside the bowling alley.

     After Williams arrived, the Martinez brothers "exited the

bowling alley and walked over to the Windstar van."     Appellant

remained inside the bowling alley.      Dunn observed the following:

            After they had hit the buttons to unlock the
            doors Mr. Daniel Martinez walked around to
            the sliding door, which was the door that
            [appellant] had come out, and opened up the
            door and reached in by the bench seat that
            was right directly behind the driver and the
            passenger doors[,] . . . at which time Mr.
            Felix Martinez had opened up the driver's

                                - 3 -
            side door and he had reached into the
            vehicle also. And, then they had both
            turned . . . to [Williams's] vehicle and
            Danny Martinez had walked over to
            [Williams's] passenger side window, at which
            time they had a conversation . . . .

Felix Martinez then exchanged an object, later identified as a

bag with an "Oodles of Noodles box" inside, for $3,800 in marked

bills.   The box contained approximately 54 grams of heroin in

two separate bags.

     After the sale, the Martinez brothers went back into the

bowling alley to meet appellant.   Approximately one-half hour

later, the surveillance team observed appellant, who was not

involved in the parking lot transaction, and the Martinez

brothers leave the bowling alley and return to the Econo Lodge.

The men walked to a nearby Chinese restaurant, where they were

arrested.   In a search of the van, the police found under the

driver's seat the $3,800 in marked bills.   The police also

searched the hotel room, where they found "a pair of scissors

sitting on the table," five grams of heroin in a latex glove

"underneath [a] tissue box," and "a bunch of Oodles of Noodles"

inside the garbage can.   One of the arresting officers searched

appellant and found a wallet containing his identification,

approximately $220 in cash, a pager, a cell phone, and an

electronic organizer.

     At trial, Williams testified that he knew "Bumler" Martinez

and "Victor" Martinez from a previous drug transaction.

                                - 4 -
Williams also stated that he saw appellant "in the car back

during the summertime, but [he] never did get no drugs [sic]

from [appellant]" and could not remember the type of car.

Williams confirmed that appellant was not present in the bowling

alley parking lot on October 16, 1998.   Williams admitted that

he had been convicted of four felonies and that a recent

narcotics charge had been nolle prossed on October 17, 1998.

     On cross-examination, Detective Dunn testified that

appellant did not drive the van at any time while the men were

under police surveillance.   Dunn was unsure what appellant was

doing in the bowling alley during the controlled purchase, but

confirmed that appellant was not present in the parking lot.

Finally, Dunn admitted that appellant's voice did not appear on

any of the telephone calls taped by the police.

     In his defense, appellant testified that he met the

Martinez brothers in New York at a parking lot owned by his

father where appellant attended cars.    The brothers knew

appellant drove a taxicab and they wanted him to accompany them

to Richmond to buy a "Lincoln Town Car" for a taxi business.

Appellant was going to drive the car back to New York and lease

it from the Martinez brothers on a weekly basis.

     Appellant testified that he had never been to Richmond,

Virginia prior to the October 15, 1998 trip.   When the three men

arrived at the Econo Lodge, Felix Martinez handed appellant a


                               - 5 -
fifty-dollar bill and asked him to go rent a room while they

parked the van.   Inside, the hotel clerk asked appellant for

identification, which appellant produced, and the room was

registered in appellant's name.

     Appellant testified that he did not know about the drug

transaction and, although he saw a bag sitting in the van, he

did not know what was in the bag.   He admitted that he was

present in the hotel room while the Martinez brothers made some

phones calls, but he did not overhear their conversations.

Appellant stated that the television was on "most of the time"

and that the men generally talked about what was on the

television and about buying the Lincoln Town Car from an

individual named "Miguel."

     Appellant testified that on October 16, 1998, the men left

the hotel to play pool at a bowling alley.   When they arrived,

they went inside the bowling alley and appellant rented a table

and ordered some food.   Although the Martinez brothers went

outside for a few moments, appellant remained inside the bowling

alley until the three of them left.    Appellant testified that

the pager, cell phone and electronic organizer belonged to

Daniel Martinez and that the police placed all the seized items,

including his wallet and cash, into one bag.




                               - 6 -
     On cross-examination, appellant denied ever seeing drugs or

the Martinez brothers packaging any drugs.    He denied

overhearing any telephone conversations about a drug purchase.

     At the conclusion of the presentation of evidence, the

trial court found appellant guilty of distribution of heroin, in

violation of Code § 18.2-248, and conspiracy to distribute heroin,

in violation of Code § 18.2-22.

                                  II.

     When the sufficiency of the evidence is challenged on

appeal, we determine whether the evidence, viewed in the light

most favorable to the prevailing party, the Commonwealth, and

the reasonable inferences fairly deducible from that evidence

support each and every element of the charged offense.     See

Moore v. Commonwealth, 254 Va. 184, 186, 491 S.E.2d 739, 740

(1997); Derr v. Commonwealth, 242 Va. 413, 424, 410 S.E.2d 662,

668 (1991).   "In so doing, we must 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 that may be drawn therefrom."     Watkins v.

Commonwealth, 26 Va. App. 335, 349, 494 S.E.2d 859, 866 (1998).

"We will not reverse the judgment of the trial court, sitting as

the finder of fact in a bench trial, unless it is plainly wrong

or without evidence to support it."     Reynolds v. Commonwealth,

30 Va. App. 153, 163, 515 S.E.2d 808, 813 (1999) (citing Martin


                               - 7 -
v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418

(1987)).

     On appeal, appellant contends that the circumstantial

evidence was insufficient to prove that he was a principal in

the second degree to distribution of a controlled substance.

Although the motel room was in his name, appellant argues that

no act, statement, conduct or any other evidence established

that "he knew of the presence and character of any heroin or of

any heroin deal."   We agree.

     Proof by circumstantial evidence "'is not sufficient . . .

if it engenders only a suspicion or even a probability of guilt.

Conviction cannot rest upon conjecture.'"   Littlejohn v.

Commonwealth, 24 Va. App. 401, 414, 482 S.E.2d 853, 859 (1997)

(quoting Hyde v. Commonwealth, 217 Va. 950, 955, 234 S.E.2d 74,

78 (1977)).   "'"[A]ll necessary circumstances proved must be

consistent with guilt and inconsistent with innocence and

exclude every reasonable hypothesis of innocence."'"   Betancourt

v. Commonwealth, 26 Va. App. 363, 373, 494 S.E.2d 873, 878

(1998) (quoting Stover v. Commonwealth, 222 Va. 618, 623, 283

S.E.2d 194, 196 (1981) (quoting Inge v. Commonwealth, 217 Va.

360, 366, 228 S.E.2d 563, 567 (1976))).   "When, from the

circumstantial evidence, 'it is just as likely, if not more

likely,' that a 'reasonable hypothesis of innocence' explains

the accused's conduct, the evidence cannot be said to rise to


                                - 8 -
the level of proof beyond a reasonable doubt."    Littlejohn, 24

Va. App. at 414, 482 S.E.2d at 859 (quoting Haywood v.

Commonwealth, 20 Va. App. 562, 567-68, 458 S.E.2d 606, 609

(1995)).    The Commonwealth need not "exclude every possible

theory or surmise," but it must exclude those hypotheses "which

flow from the evidence itself."    Cantrell v. Commonwealth, 7 Va.

App. 269, 289-90, 373 S.E.2d 328, 338-39 (1988) (citations

omitted).

     Because appellant was never directly involved in the drug

transaction in the parking lot at the bowling alley or in

setting up the buy, the Commonwealth proceeded on the theory

that he was a principal in the second degree.    To prove that

appellant was a principal in the second degree to distribution

of heroin, the Commonwealth had to prove beyond a reasonable

doubt that he was present during the offense and aided and

abetted or encouraged the Martinez brothers in the crime.       See

Rollston v. Commonwealth, 11 Va. App. 535, 539, 399 S.E.2d 823,

825 (1991).   Furthermore, appellant must have shared the

criminal intent of the principals in the first degree.      See id.

                 Mere presence when a crime is committed
            is, of course, not sufficient to render one
            guilty as aider or abettor. There must be
            something to show that the person present
            and so charged, in some way procured, or
            incited, or encouraged, the act done by the
            actual perpetrator. But whether a person
            does in fact aid or abet another in the
            commission of a crime is a question which


                                - 9 -
          may be determined by circumstances as well
          as by direct evidence. . . .

                To constitute one an aider and abettor,
          he must be guilty of some overt act, or he
          must share the criminal intent of the
          principal or party who commits the crime.
          . . .

               Notwithstanding these rules as to the
          nonliability of a passive spectator, it is
          certain that proof that a person is present
          at the commission of a crime without
          disapproving or opposing it, is evidence
          from which, in connection with other
          circumstances, it is competent for the jury
          to infer that he assented thereto, lent to
          it his countenance and approval, and was
          thereby aiding and abetting the same.

Foster v. Commonwealth, 179 Va. 96, 99-100, 18 S.E.2d 314, 316

(1942) (citations omitted) (emphasis added).

     Even viewed in the light most favorable to the

Commonwealth, no evidence established that appellant, as a

principal in the second degree, "in some way procured, or

incited, or encouraged" or was present when the Martinez

brothers distributed the heroin.   Id.   The van did not belong to

appellant, and he was never seen driving the van; he was not

present during the actual transaction in the bowling alley

parking lot; he was never seen carrying the drugs or receiving

or handling either the drugs or money; and his testimony that he

knew nothing about the drug transaction was unrebutted.

Significantly, appellant does not appear in the video-taped drug

exchange in the parking lot, and his voice was not identified as



                             - 10 -
being in the audio-taped telephone calls.    Put simply, there is

no evidence linking appellant to the drugs, and any alleged

involvement in the transaction was purely speculative.

"Suspicion, no matter how strong, is not enough.    Convictions

cannot rest upon speculation and conjecture."     Littlejohn, 24

Va. App. at 415, 482 S.E.2d at 860 (citations omitted).

        Nevertheless, the Commonwealth contends that the trial

court could reasonably infer appellant's knowledge of the drug

transaction because approximately five grams of heroin were

found "on the sink in plain view in the motel room."    To the

contrary, there was no evidence that the drugs were in plain

view.    Detective Dunn testified that the five grams of heroin

were found "underneath the tissue box."     (Emphasis added).

Additionally, appellant's mere presence in the hotel room or

proximity to the drugs is not sufficient to prove that he either

possessed or was involved in the distribution of the drugs.

See, e.g., Walton v. Commonwealth, 255 Va. 422, 426, 497 S.E.2d

869, 872 (1998); Haskins v. Commonwealth, 31 Va. App. 145, 152,

521 S.E.2d 777, 780 (1999).    Proof of a mere opportunity to

commit an offense provides only "the suspicion that the

defendant may have been the guilty agent; and suspicion is never

enough to sustain a conviction."     Simmons v. Commonwealth, 208

Va. 778, 783, 160 S.E.2d 569, 573 (1968).    The Commonwealth's

evidence failed to prove that appellant was either directly


                                - 11 -
involved in the drug transaction or that he acted as a principal

in the second degree.    Finding the evidence insufficient, we

reverse the distribution conviction.

     Next, appellant contends that the evidence was insufficient

to prove that he conspired to distribute heroin.   He argues that

"[n]o evidence was presented of any conversation about drugs

which [he] is purported to have had with either of the Martinez

brothers or Williams."   We agree.

     "Conspiracy is defined as an agreement between two or more

persons by some concerted action to commit an offense."     Zuniga

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

(quoting Wright v. Commonwealth, 224 Va. 502, 505, 297 S.E.2d

711, 713 (1982)) (internal quotations and citation omitted).

          [A] defendant may wittingly aid a criminal
          act and be liable as an aider and abettor,
          but not be liable for conspiracy, which
          requires knowledge of and voluntary
          participation in an agreement to do an
          illegal act. 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. The agreement is
          the essence of the conspiracy offense.
          [T]he Commonwealth must prove beyond a
          reasonable doubt that an agreement existed.

Id. at 527-28, 375 S.E.2d at 384 (internal quotations and

citations omitted).




                               - 12 -
     In the instant case, no evidence was presented that an

agreement to distribute heroin existed between appellant and

either the Martinez brothers or Williams.    "[E]vidence of a

distribution offense absent an agreement will not suffice to

support a conspiracy conviction."     Id. at 528, 375 S.E.2d at 385

(citations omitted) (emphasis added).    Here, there was

insufficient evidence to prove that appellant either was a

principal in the second degree to the distribution charge or was

part of a conspiracy to distribute.    For the foregoing reasons,

we reverse and dismiss the convictions.

                                           Reversed and dismissed.




                             - 13 -
