                    COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Bray and Fitzpatrick
Argued at Salem, Virginia


MARTY JAGADE JACKSON
                                            MEMORANDUM OPINION * BY
v.        Record No. 0680-96-3               JUDGE LARRY G. ELDER
                                                APRIL 22, 1997
COMMONWEALTH OF VIRGINIA


         FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE
                     James F. Ingram, Judge

          W. Clarke Whitfield, Jr. (Turner, Haskins &
          Whitfield, PLC, on brief), for appellant.

          H. Elizabeth Shaffer, Assistant Attorney
          General (James S. Gilmore, III, Attorney
          General, on brief), for appellee.



     Marty Jagade Jackson (appellant) appeals his conviction of

two counts of aiding and abetting the sale of cocaine.      He

contends that the trial court erred when it admitted two hearsay

statements into evidence under the "co-conspirator" exception to

the hearsay rule.   For the reasons that follow, we affirm.

                                  I.

                                 FACTS

     Appellant was arrested and charged with two counts of aiding

and abetting the sale of cocaine.      At trial, Ralph Anthony Moore,

an undercover drug investigator, testified for the Commonwealth

that he made two purchases of crack cocaine in March, 1995 that

     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
involved appellant.    The first transaction was between Mr. Moore

and Timothy Griffin on March 13, and the other was between Mr.

Moore and Antonio Vantas Davis on March 24.

     During his testimony, Mr. Moore testified that Mr. Griffin

told him during the transaction on March 13, "you could get these

three for a $100.00.    We only have fifties, but you can get these

three for $100.00."    Mr. Moore later testified that Mr. Davis

told him during the transaction on March 24 that "[appellant] was

going to look out for me [Mr. Moore] from the last time."

Appellant's counsel objected to the admission of both of these

statements on the ground that they were hearsay.    The trial court

overruled both objections on the ground that each statement "was

made by a co-conspirator during the course of the enterprise."
At the conclusion of the evidence, the trial court convicted

appellant of both counts of aiding and abetting the sale of

cocaine.

                                  II.
                ADMISSIBILITY OF THE HEARSAY STATEMENTS

                     OF MR. GRIFFIN AND MR. DAVIS

     Appellant contends that the trial court erred when it

concluded that the hearsay statements of Mr. Griffin and Mr.

Davis were admissible under the co-conspirator exception to the

hearsay rule.    Appellant argues that the co-conspirator exception

does not apply to these statements because the evidence at trial

did not establish that appellant was involved in a conspiracy to

sell cocaine with Mr. Griffin on March 13 or with Mr. Davis on



                                  -2-
March 24.    We disagree.

        Hearsay evidence that is a declaration of a defendant's

co-conspirator made in furtherance of the conspiracy is

admissible under the co-conspirator exception to the hearsay

rule.     See Rabeiro v. Commonwealth, 10 Va. App. 61, 63, 389

S.E.2d 731, 732 (1990).     "Such declarations are admissible even

though a conspiracy is not charged where the evidence establishes

a prima facie case of conspiracy."      Anderson v. Commonwealth, 215

Va. 21, 24, 205 S.E.2d 393, 395 (1974).     A prima facie case
consists of "evidence which on its first appearance is sufficient

to raise a presumption of fact or establish the fact in question

unless rebutted."     Babbit v. Miller, 192 Va. 372, 379, 64 S.E.2d

718, 722 (1951).    The prima facie case of conspiracy must be

established by evidence independent of the hearsay declarations.

 See Rabeiro, 10 Va. App. at 63, 389 S.E.2d at 732.     In addition,

evidence establishing the prima facie case of conspiracy need not

be admitted prior to the admission of the hearsay statement.      See
Floyd v. Commonwealth, 219 Va. 575, 582, 249 S.E.2d 171, 175

(1978) (stating that the co-conspirator's hearsay statement may

be "conditionally admitted subject to being 'connected up' by

subsequent independent proof of concert of action" (citation

omitted)).

        "In reviewing whether evidence was sufficient to establish

the existence of a conspiracy, we consider the evidence in the

light most favorable to the Commonwealth, granting to it all




                                  -3-
reasonable inferences fairly deducible therefrom."      Rabeiro, 10

Va. App. at 64, 389 S.E.2d at 732-33 (citations omitted).     A

trial court's factual determination regarding the necessary

predicates to rulings on the admissibility of evidence will not

be disturbed on appeal unless plainly wrong or without evidence

to support it.   See id. at 64, 389 S.E.2d at 733 (citing Martin

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

(1987)).
                                A.

       HEARSAY STATEMENT OF MR. GRIFFIN ON MARCH 13, 1995

     We hold that Mr. Griffin's statement falls under the

co-conspirator exception to the hearsay rule because the evidence

established a prima facie case of conspiracy between appellant

and Mr. Griffin to sell cocaine.     "Conspiracy is defined as 'an

agreement between two or more persons by some concerted action to

commit an offense.'"   Wright v. Commonwealth, 224 Va. 502, 505,

297 S.E.2d 711, 713 (1982) (quoting Falden v. Commonwealth, 167

Va. 542, 544, 189 S.E. 326, 327 (1937)).      "A conspiracy may be

proved by circumstantial evidence."     Id.

     Mr. Moore's testimony regarding Mr. Griffin's and

appellant's actions on March 13 supports the trial court's

conclusion that an agreement existed between the two to sell

cocaine.   Mr. Moore testified that in response to his request to

purchase a "hundred rock" of crack cocaine, appellant told him to

"give me two minutes" and then disappeared behind his house.




                                -4-
Shortly thereafter, Mr. Griffin appeared from appellant's house

and approached Mr. Moore in his car.   After recognizing Mr. Moore

as his "little man from the pool hall," Mr. Griffin shook his

hand and told him that "its all good."   Mr. Griffin then returned

to speak with appellant, made an exchange with him, and returned

to Mr. Moore's car with three packages of crack cocaine.     After

Mr. Moore paid Mr. Griffin for the drugs, Mr. Griffin returned to

appellant and appeared to make another exchange with him.    Mr.

Griffin's statement to Mr. Moore that "its all good" in

combination with his exchanges with appellant supports the

reasonable inference that he and appellant were engaged in a

conspiracy to sell crack cocaine.
                                B.

        HEARSAY STATEMENT OF MR. DAVIS ON MARCH 24, 1995

     We also hold that Mr. Davis' statement was admissible under

the co-conspirator exception because the evidence established the

existence of a conspiracy between Mr. Davis and appellant.    Mr.

Davis testified that he occasionally sold cocaine and that he

previously obtained his supply for this purpose from appellant.

He testified that he accompanied Mr. Moore to appellant's house

on March 24 to facilitate the sale of crack cocaine between

appellant and Mr. Moore.   He testified that he spoke with

appellant about selling drugs to Mr. Moore and that appellant

indicated that he was suspicious of Mr. Moore.   Appellant then

told Mr. Davis "to serve the dude" and gave him "three twenties"




                                -5-
of crack cocaine to sell to Mr. Moore.   Mr. Moore's testimony

corroborated Mr. Davis' account of the transaction on March 24.

Mr. Moore testified that after giving Mr. Davis $100, Mr. Davis

walked over to appellant and made an exchange.   Mr. Davis then

returned to Mr. Moore's car and gave him three foil-wrapped

packages of crack cocaine.   The evidence of Mr. Davis' prior

dealings with appellant and their actions on March 24 supports

the reasonable inference that appellant and Mr. Davis were

working in concert to sell crack cocaine at the time the

statement at issue was made by Mr. Davis.
     For the foregoing reasons, we affirm the conviction of two

counts of aiding and abetting the sale of cocaine.

                                                           Affirmed.




                                -6-
