                               COURT OF APPEALS OF VIRGINIA


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


FELIPE FRANCO
                                                             MEMORANDUM OPINION* BY
v.     Record No. 0222-03-4                                JUDGE ROSEMARIE ANNUNZIATA
                                                                 FEBRUARY 10, 2004
COMMONWEALTH OF VIRGINIA


                    FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
                              Benjamin N. A. Kendrick, Judge

                 William B. Cummings for appellant.

                 Kathleen B. Martin, Assistant Attorney General (Jerry W. Kilgore,
                 Attorney General, on brief), for appellee.


       Felipe Franco appeals his convictions for distribution of cocaine in violation of Code

§ 18.2-248 and conspiracy to commit a felony (distribution of cocaine) in violation of Code

§ 18.2-256. He contends the Commonwealth’s evidence was insufficient to support the

convictions beyond a reasonable doubt. For the reasons that follow, we affirm.

                                           I. Background

       The evidence, viewed in the light most favorable to the Commonwealth, the party

prevailing below, together with all the reasonable inferences that may be drawn, Garcia v.

Commonwealth, 40 Va. App. 184, 189, 578 S.E.2d 97, 99 (2003), establishes that the instant

charges resulted from cocaine purchases made by undercover officers of the Arlington County

Police Department between September 2000 and May 2001.




       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
        A confidential source introduced Officer Eric Valentine to Giovanni Bonilla and arranged

for Valentine to purchase cocaine from him on October 18, 2000 at a fast-food restaurant in

Arlington. After Valentine purchased one ounce of cocaine for $950, Bonilla agreed to conduct

future deals directly with Valentine. Valentine made subsequent purchases from Bonilla on

November 16, 2000, December 5, 2000, February 2, 2001, February 6, 2001 and March 20,

2001. He arranged the purchases by telephone, and they took place at the same restaurant as did

the first transaction.

        Bonilla was arrested on October 17, 2001 and charged with five counts of distribution of

cocaine. He pled guilty and was awaiting sentencing at the time of Franco’s trial.

        Bonilla testified that he met Franco in 2000 at Manuel’s Chiviata, a gambling house in

Washington, D.C. where drugs were distributed. He testified that he obtained all the cocaine he

sold to Valentine from Franco. Bonilla said he telephoned Franco each time Valentine contacted

him and then met Franco “on the street” in D.C. to pick up the cocaine. Franco charged Bonilla

$750 for one ounce but was not immediately paid for the supply. Bonilla sold the cocaine to

Valentine for “$850, sometimes $900” in order to “make some money.” Within a day or two of

the transaction, Bonilla paid Franco with the proceeds.

        Valentine was introduced to Rubin Arbaisa by the same confidential source that had

arranged for the transaction between Valentine and Bonilla. Between September 2000 and

March 2001, Valentine purchased over seven ounces of cocaine from Arbaisa for approximately

$6,000.

        On May 1, 2001, Valentine telephoned Arbaisa to arrange to buy 125 grams of cocaine

for $3,200. Valentine called Arbaisa on the morning of May 3, 2001 to confirm the deal; the

men arranged to meet later that afternoon at a fast-food restaurant in Rosslyn. Valentine was

dropped off near the restaurant by his partner, Detective Giles. When Arbaisa arrived, he said he

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wanted to conduct it in “his man’s truck,” and pointed to a green Toyota Four-Runner, parked

nearby. Franco was sitting in the driver’s seat of the vehicle. Valentine declined to conduct the

purchase in the truck because he did not know Franco. The transaction therefore occurred in

Valentine’s car. As Valentine walked past the truck, he saw Franco exit the vehicle and stand on

a small retaining wall. Franco remained there, staring in the direction of the transaction, until

Valentine and Arbaisa completed it. A police videotape of the transaction was played for the

jury.

        Bonilla was acquainted with Arbaisa and testified that he saw Arbaisa and Franco near

the gambling house in 2001 on a day that he described as “hot already.” Franco and Arbaisa

were in a blue or green Toyota truck, and Franco related to Bonilla that he was going to Virginia

to “drop off some drugs.”

        Arbaisa was arrested on August 22, 2001 and subsequently pled guilty to three charges of

selling cocaine to Valentine. He initially cooperated with the government and disclosed that

Franco provided him with the cocaine he sold to Valentine. At trial, however, after being housed

in the same unit at the jail as Franco, Arbaisa testified for the defense, stating that he asked his

“friend Felipe” to give him a ride to Arlington on May 3, 2001. Arbaisa explained at trial that he

already had the drugs when he asked Franco for the ride to Virginia and that, although he was

going there to sell drugs to Valentine, he told Franco that the trip was necessary in order to get

some money to pay his child. According to Arbaisa’s trial testimony, his source of the drugs he

sold to Valentine was “a guy in New York.”

        On cross-examination, Arbaisa acknowledged that he signed a statement for the police,

stating that he had obtained cocaine from Franco and that Franco, driving a green Four-Runner,

accompanied him once to Virginia.




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       Three witnesses for the Commonwealth testified to their association with Franco. Lewis

Estrada Fuentes testified that he loaned Franco $2,500. In repayment, Franco gave him 125

grams of cocaine. Fuentes attempted to sell that cocaine, but his purchaser complained about its

poor quality and accepted only half of the 125 grams. Fuentes informed Franco of the problem

and returned to him the remaining 63 grams, which Franco agreed to replace with better quality

cocaine.

       Jeffry Manchester testified that Franco supplied him with cocaine in “user amounts”

worth about $50 and that Franco did not appear to have a job in which he kept regular hours.

       Angel Trejo testified that he met Franco at the Chiviata in the summer of 2000. Trejo

testified that he once saw Franco at the Chiviata empty a gym bag containing 50 small bags of

what appeared to be one-ounce pieces of cocaine. Later, he saw Franco leave the Chiviata with

the empty bag. He also saw Franco at the Chiviata with large amounts of cash ranging from

$5,000 to $10,000 and saw Franco and Arbaisa together there. Trejo also related a conversation

that he had with Franco at the Arlington jail two or three months before Franco’s trial. In that

conversation, Franco said he had gone with Arbaisa “to deliver some stuff” and that he was

“caught in the video.” Franco also stated that he “was going to beat [the charge] because

actually he [was] going to have [Arbaisa] testify that he had nothing to do with it.” Franco told

Trejo that he was not worried about the case because Arbaisa “was still working for him.”

       The Commonwealth also presented evidence of transactions made in a savings account

that Franco maintained at the Chevy Chase Bank in Maryland. The bank records showed he

made numerous deposits and withdrawals and that, on several occasions, he endorsed and

deposited checks and money orders that had been made out to other persons.

       David Crosby, special agent with the federal Drug Enforcement Administration (DEA),

worked with the Arlington police on the case. A Dialed Number Recorder (DNR), placed on the

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telephones of Franco, Arbaisa and Bonilla by the DEA, showed the time, date and duration of

incoming and outgoing calls; the content of the calls, however, was not recorded. Barry Fink, an

intelligence analyst with the DEA, reviewed the DNR reports. Between January 2001 and May

2001, 208 telephone calls were made from Franco’s cell telephone to Bonilla’s telephone, and 27

were made from Bonilla to Franco. The report documented 126 calls from Franco’s number to

Manchester’s number. In March 2001, three calls were made from Fuentes’s cell telephone to

Franco’s telephone. Between September 2000 and May 2001, 201 calls were made from

Franco’s telephone to Arbaisa’s telephone, and 331 calls were made from Arbaisa to Franco

between August 2000 and May 2001. Timelines for the dates Valentine purchased cocaine from

Bonilla and Arbaisa were introduced as Commonwealth’s exhibits.

       After the close of all the evidence, Franco moved to strike the evidence on the ground

that it was insufficient to prove that he distributed cocaine to Valentine on May 3, 2001, as a

principal in the second degree. The motion was denied. The trial court also denied his motion to

strike the evidence as insufficient on the conspiracy count. He was convicted on both counts and

sentenced to seven years incarceration for distribution of cocaine, and twenty years incarceration

for conspiracy to distribute cocaine. This appeal followed. For the following reasons, we affirm

his convictions.

                                           II. Analyisis

                                     A. Standard of Review

       When the sufficiency of the evidence is challenged on appeal, this Court “must view the

evidence and all reasonable inferences fairly deducible therefrom in the light most favorable to

the Commonwealth.” Garcia, 40 Va. App. at 189, 578 S.E.2d at 99. The Court must therefore

“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

                                               -5-
drawn therefrom.” Holsapple v. Commonwealth, 39 Va. App. 522, 528, 574 S.E.2d 756, 758-59

(2003) (en banc) (citations omitted). This Court may not disturb the fact finder’s verdict unless

it is plainly wrong or without evidence to support it. Id. at 538, 574 S.E.2d at 763.

                                    B. Distribution of Cocaine

       To prove that Franco distributed cocaine in violation of Code § 18.2-248, the

Commonwealth was required to prove that he possessed a controlled substance and that he had

the specific intent to distribute the substance while he possessed it. Wilkins v. Commonwealth,

18 Va. App. 293, 298, 443 S.E.2d 440, 444 (1994); Stanley v. Commonwealth, 12 Va. App. 867,

869, 407 S.E.2d 13, 15 (1991). The Commonwealth proceeded on a theory that Franco acted as

a principal in the second degree, aiding and abetting Arbaisa in the cocaine deal on May 3, 2001.

“[E]very principal in the second degree may be indicted, tried, convicted and punished as if a

principal in the first degree.” Allard v. Commonwealth, 24 Va. App. 57, 62, 480 S.E.2d 139,

141 (1997) (citing Code § 18.2-18). In order to prove that a defendant acted as a principal in the

second degree, “‘the Commonwealth must show that the accused was present, aiding and

abetting, and intended his words, gestures, signals or actions to in some way encourage, advise,

urge, or in some way help the person committing the crime to commit it.’” Bass v.

Commonwealth, 31 Va. App. 373, 389, 523 S.E.2d 534, 542 (2000) (quoting McGill v.

Commonwealth, 24 Va. App. 728, 733, 485 S.E.2d 173, 175 (1997)). “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.” Triplett v. Commonwealth, 141 Va. 577, 586, 127

S.E. 486, 489 (1925).

       The evidence in this case established that the defendant aided and abetted Arbaisa in the

distribution of cocaine on May 3, 2001. It shows that the transaction was arranged by telephone

calls made between Officer Valentine and Arbaisa and between Arbaisa and Franco. After the

                                                -6-
purchase of drugs was arranged, Bonilla testifed that he saw Franco on a “hot day” and that

Franco told him he was going to Virginia to “drop off some drugs.” A videotape of the resulting

transaction was played for the jury, from which it could directly evaluate the degree of Franco’s

participation in the deal. “A defendant may be convicted as a principal in the second degree if he

or she is present, ‘keeping watch or guard at some convenient distance.’” Allard, 24 Va. App. at

63, 480 S.E.2d at 142 (quoting Rollston v. Commonwealth, 11 Va. App. 535, 540, 399 S.E.2d

823, 826 (1991)). “‘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, . . .

the jury [may] infer that he assented thereto.’” Pugliese v. Commonwealth, 16 Va. App. 82,

93-94, 428 S.E.2d 16, 25 (1993) (quoting Foster v. Commonwealth, 179 Va. 96, 99-100, 18

S.E.2d 314, 316 (1942)).

       Franco’s involvement with the transaction was further proved by evidence that, when

Arbaisa met Valentine at the pre-arranged location for the transaction, he suggested the deal take

place in “his man’s truck,” and he pointed to Franco’s vehicle, which was parked nearby. After

Valentine declined the invitation, Arbaisa went with Valentine to Valentine’s car to complete the

deal, and Franco got out of his truck and stood on a nearby retaining wall, watching the

transaction. There is no evidence in the record that Franco disapproved or opposed the

transaction between Arbaisa and Valentine, a failure to act that gives rise to the inference that

Franco was aiding and abetting the transaction. See Pugliese, 16 Va. App. at 93-94, 428 S.E.2d

at 25. Although Arbaisa testified that Franco was not involved with the deal, the jury was

entitled to disregard that testimony in favor of: (1) Arbaisa’s admission on cross-examination

that he told police that Franco supplied him with the cocaine for the deal, and (2) the videotape

and Valentine’s testimony that revealed Franco’s role as a lookout. See Carter v. Lambert, 246

Va. 309, 314, 435 S.E.2d 403, 406 (1993) (noting that a jury is entitled to disregard conflicting

                                                -7-
testimony); see also Barker v. Commonwealth, 230 Va. 370, 373, 337 S.E.2d 729, 732 (1985)

(“the credibility of witnesses and the weight to be given their testimony are questions exclusively

within the province of a jury”). Finally, we note that, subsequent to the transaction, Franco told

Trejo he had gone with Arbaisa “to deliver some stuff’ and was “caught in the video.” He also

told Trejo that Arbaisa “was still working for him” and he “was going to beat [the charge]

because actually he [was] going to have [Arbaisa] testify that he had nothing to do with it.”

       In summary, the jury could reasonably infer from all the evidence, viewed in its totality,

that Franco knew Arbaisa was going to sell cocaine to Valentine, that he supplied him with the

drugs, and that he further had participated in the deal by driving Arbaisa to the site and acting as

a lookout. See Barlow v. Commonwealth, 26 Va. App. 421, 430, 494 S.E.2d 901, 905 (1998);

see also Rollston, 11 Va. App. at 548, 399 S.E.2d at 831 (upholding murder conviction on theory

that defendant was a principal in the second degree where evidence proved defendant acted as a

lookout). We find no error in the conviction of Franco for distribution of cocaine.

                               C. Conspiracy to Distribute Cocaine

       We find the evidence was likewise sufficient to convict Franco of conspiracy to distribute

cocaine. To convict Franco of conspiracy to distribute cocaine, the Commonwealth was required

to prove there was an agreement between Franco and one or more persons “by some concerted

action to commit an offense.” Gray v. Commonwealth, 260 Va. 675, 680, 537 S.E.2d 862, 865

(2000). An “agreement is the essence of a conspiracy offense.” Zuniga v. Commonwealth, 7

Va. App. 523, 527-28, 375 S.E.2d 381, 384 (1988). Normally, “a single buyer-seller

relationship, standing alone, does not constitute a conspiracy.” Id. at 528, 375 S.E.2d at 385.

“If, however, the evidence demonstrates: (1) ‘that the seller knows the buyer’s intended illegal

use,’ and (2) ‘that by the sale [the seller] intends to further, promote and cooperate in [the

venture],’ the existence of a conspiracy to distribute between a seller and a buyer, inter se, has

                                                -8-
been proved.” Id. at 529, 375 S.E.2d at 385 (quoting Direct Sales Co. v. United States, 319 U.S.

703, 711 (1943)) (alterations in original).

       The jury reasonably inferred from the evidence presented here that Franco had conspired

with Bonilla and Arbaisa to distribute cocaine. With respect to Bonilla, between October 18,

2000, and March 2001, the evidence showed that Bonilla sold Officer Valentine approximately

eight ounces of cocaine worth a total of $7,450. Bonilla testified that the deals were arranged by

telephone; after Valentine called Bonilla, Bonilla called Franco, and Bonilla then met Franco to

get the cocaine that he sold to Valentine. Bonilla did not pay for the cocaine at the time he

received it from Franco; rather, Bonilla paid Franco for the cocaine only after he completed the

sale and was paid by Valentine. Franco demonstrated a continuing interest in the proceeds;

Bonilla testified that “sometimes [Franco would] call to find out if I already had it or sometimes

I’d call him.” From this evidence establishing that Franco supplied Bonilla with cocaine on

credit over a period of several months, the jury could infer that (1) Franco knew Bonilla was

reselling the cocaine and (2) that Franco “thus facilitated, instigated, and actively stimulated

[Bonilla’s] distribution scheme both by supplying the narcotics and by making the purchase

financially feasible.” Zuniga, 7 Va. App. at 530-31, 375 S.E.2d at 386.

       The evidence further establishes that a conspiracy or agreement to distribute cocaine

existed between Franco and Arbaisa. Telephone records established that Arbaisa contacted

Franco after Valentine arranged to buy drugs from Arbaisa. Franco drove Arbaisa to meet

Valentine on May 3, 2001, and later admitted to Trejo in jail that he had gone “to deliver some

stuff.” He similarly admitted to Bonilla on May 3, 2001, that he had gone to “deliver some

drugs.” Arabaisa asked Valentine to complete the deal in “his man’s truck” where Franco sat in

the driver’s seat. After his arrest, Franco told Trejo he was not worried about the charges

because Arbasia “was still working for him” and was going to testify that Franco had not been

                                                -9-
involved. Under cross-examination, Arbaisa admitted that he told police that Franco provided

him with the drugs he sold to Valentine in Virginia. From this evidence the jury could conclude:

that Franco provided cocaine to Arbaisa; that Arbaisa was “working for him”; that Franco knew

Arbaisa was going to sell the cocaine; and that Franco promoted and cooperated in the venture

by driving Arbaisa to Virginia and by acting as a lookout. In short, the jury could conclude that

there was an agreement between Franco and Arbaisa to “‘commit an offense’” by “‘some

concerted action.’” Edwards v. Commonwealth, 18 Va. App. 45, 48, 441 S.E.2d 351, 353 (1994)

(quoting Cartwright v. Commonwealth, 223 Va. 368, 372, 288 S.E.2d 491, 493 (1982)). The

requisite agreements, therefore, were proved by circumstantial evidence. Gray, 260 Va. at 680,

537 S.E.2d at 865. Indeed, the nature of conspiracy often mandates that the agreements be

proved by indirect or circumstantial evidence. Id. A “common purpose and plan may be

inferred from a development and collocation of circumstances.” Combs v. Commonwealth, 30

Va. App. 778, 787, 520 S.E.2d 388, 392-93 (1999) (citation omitted).

       Franco contends that this Court’s decisions in Hudak v. Commonwealth, 19 Va. App.

260, 450 S.E.2d 769 (1994), and Feigley v. Commonwealth, 16 Va. App. 717, 432 S.E.2d 520

(1993), mandate that his convictions be reversed. We find, however, that these cases are readily

distinguishable.

       In Hudak, the evidence showed several illegal drug transactions between the buyer and

the defendant-seller, but there was no proof the defendant knew the buyer intended to resell the

drugs. Hudak, 19 Va. App. at 262, 450 S.E.2d at 771. Likewise, in Feigley, we noted that no

evidence established that Feigley knew the cocaine he sold to an acquaintance would be

redistributed. Feigley, 16 Va. App. at 723, 432 S.E.2d at 524. Significantly, in both cases we

suggested the outcome may have been different had some evidence showed that the drugs were

sold on credit whereby the seller would have retained a “vested interest” in the resale. Hudak, 19

                                              - 10 -
Va. App. at 263, 450 S.E.2d at 771; Feigley, 16 Va. App. at 723, 432 S.E.2d at 524. As noted

above, unlike the evidence in Hudak and Feigley, the evidence here established that Franco knew

the cocaine he sold to Bonilla was being redistributed and that he retained an interest in the

resale. Furthermore, Franco’s knowledge of the intended redistribution of the drugs he supplied

was proved by other evidence in the case. Manchester, a cocaine user, testified that Franco gave

him “user amounts” of a gram, worth about $50 each. The quantities involved in the deals with

Valentine were for one or two ounces at a cost of approximately $1,000 per ounce. Manchester’s

testimony, therefore, is evidence from which the jury could infer Franco knew the greater

amounts supplied for the transactions with Valentine were for resale. Furthermore, Fuentes

testified about one instance when he returned cocaine to Franco because Fuentes’s purchaser

complained about its quality. In response, Franco agreed to replace the poor quality cocaine with

something better. From this evidence, the jury could conclude that Franco knew the cocaine he

was providing was being redistributed.

                                          III. Conclusion

       In conclusion, we find that sufficient evidence supports the jury’s determination that

Franco was guilty of distribution of cocaine and conspiracy to distribute cocaine. Accordingly,

we affirm Franco’s convictions.

                                                                                         Affirmed.




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