                    COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Annunziata and Senior Judge Cole
Argued at Richmond, Virginia


CLIFFORD O'NEAL KING
                                           MEMORANDUM OPINION * BY
v.         Record No. 1130-96-2          JUDGE ROSEMARIE ANNUNZIATA
                                              JANUARY 28, 1997
COMMONWEALTH OF VIRGINIA


              FROM THE CIRCUIT COURT OF HANOVER COUNTY
                     Richard H. C. Taylor, Judge
          Hugh S. Campbell (Campbell, Campbell, Herbert &
          Harris, on brief), for appellant.

          Daniel J. Munroe, Assistant Attorney General
          (James S. Gilmore, III, Attorney General, on
          brief), for appellee.



     Following a bench trial, appellant, Clifford O'Neal King,

was convicted of distribution of cocaine and conspiracy to

distribute cocaine.    On appeal, he contends the evidence is

insufficient to support his conviction for conspiracy to

distribute.   We agree and reverse.

     Lloyd Evans, acting undercover as a Special Agent of the

Virginia State Police, met with appellant and discussed with him

the possibility of purchasing cocaine.    Appellant asked Evans for

a quarter, which he used to place a telephone call.      Evans

overheard appellant refer to the person he called as "Ben."      With

that exception, there is no evidence concerning the content of

the phone conversation.    After completing the call, appellant

     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
told Evans appellant could obtain drugs from a person named Ben.

       Appellant, Evans, Charles Brown (Charles) and another man

drove to the nearby home of Benjamin Harris (Ben).     When they

arrived, Evans gave appellant eighty dollars.     Appellant took the

money, exited the vehicle, approached the house and was met by

Ben.   Evans witnessed appellant and Ben exchange something, but

the record contains no evidence concerning any communication made

between appellant and Ben during the transaction.     Following the

transaction, appellant returned to the vehicle and presented

Evans with crack cocaine.   Appellant testified that, following

the transaction, Ben walked to the car and spoke to Charles.
       "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)).   There is no dispute that the relevant agreement in

this case is the alleged agreement between appellant and Ben to

distribute cocaine; any "agreement" between appellant and Evans

is irrelevant.    See Fortune v. Commonwealth, 12 Va. App. 643,

648, 406 S.E.2d 47, 49 (1991) ("agreement" with government agent

insufficient to support conviction for conspiracy).

                 An agreement requires plurality of

            intent, a meeting of the minds.   "[I]t must

            be shown that the requisite intent existed as

            to at least two persons.    That is, there must




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          be a common design, so that if only one party

          to the agreement has the necessary mental

          state then even that person may not be

          convicted of conspiracy."

Id. at 647, 406 S.E.2d at 49 (citation omitted).   "As a general

rule a single buyer-seller relationship, standing alone, does not

constitute a conspiracy."    Zuniga v. Commonwealth, 7 Va. App.

523, 528, 375 S.E.2d 381, 385 (1988).   Accordingly, in the

present case, the Commonwealth was required to prove an agreement

between appellant and Ben to distribute cocaine to a third party.
     Here, the record contains no direct evidence of an agreement

between appellant and Ben to distribute cocaine to a third party.

The evidence of the phone call showed only that appellant spoke

to a man named Ben; the evidence of the transaction showed only

that appellant and Ben exchanged something.

     The Commonwealth argues that circumstantial evidence and

inferences to be drawn therefrom, viewed in the light most

favorable to the Commonwealth, supports the trial court's finding

that a conspiracy to distribute existed.   We disagree.

     "[W]here the Commonwealth's evidence as to an element of an

offense is wholly circumstantial, `all necessary circumstances

proved must be consistent with guilt and inconsistent with

innocence and exclude every reasonable hypothesis of innocence.'"

Moran v. Commonwealth, 4 Va. App. 310, 314, 357 S.E.2d 551, 553

(1987) (citation omitted).   The Commonwealth argues that the



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evidence of the phone call and the resulting exchange of money

for drugs led the trial court to the "logical conclusion" that

"Ben indicated he was able to supply cocaine to the others in

exchange for $80." 1

     The evidence supports the finding that appellant arranged to

purchase cocaine from Ben and did, in fact, exchange the money

Evans gave him for drugs.   However, the evidence fails to exclude

the hypothesis that Ben was aware only of the transaction between

himself and appellant.   Accordingly, the Commonwealth failed to

prove the requisite agreement, and appellant's conviction must be

reversed.
                                           Reversed and dismissed.




     1
      The Commonwealth relied on a similar argument at trial. It
argued to the court that "[appellant] calls [Ben] and says I've
got a buyer, will you sell us drugs."



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