                    COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Willis and Lemons
Argued at Richmond, Virginia


RONALD A. PARRISH
                                         MEMORANDUM OPINION * BY
v.        Record No. 2718-97-2           JUDGE DONALD W. LEMONS
                                             MARCH 16, 1999
COMMONWEALTH OF VIRGINIA


         FROM THE CIRCUIT COURT OF THE CITY OF PETERSBURG
                   James F. D'Alton, Jr., Judge

          Mary Katherine Martin, Senior Assistant
          Public Defender (Office of the Public
          Defender, on brief), for appellant.

          Daniel J. Munroe, Assistant Attorney General
          (Mark L. Earley, Attorney General, on brief),
          for appellee.

     Ronald A. Parrish appeals his conviction for conspiracy to

distribute cocaine, a violation of Code § 18.2-256.    On appeal,

he argues that the evidence was not sufficient to support his

conviction.   Because we hold that the evidence was sufficient to

find that Parrish conspired to distribute cocaine, we affirm his

conviction.
                           I.   BACKGROUND

     On December 5, 1996, Investigator Robert Elkins of the City

of Petersburg Police Department was working in an undercover

narcotics operation.   He parked his vehicle near the center of

the street just before the intersection of Shore and Wilson

Streets and saw Ronald A. Parrish standing near the middle of the
     *
      Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
street.    Parrish approached his vehicle and "asked me what I

needed."   Elkins told Parrish he needed "a dime or a twenty,"

referring to ten or twenty dollars worth of cocaine.   Parrish

then asked him for a ride up the street to "Green Lantern," but

Elkins refused.

     Elkins "crept the car up a little bit" on Shore Street, when

a second vehicle pulled ahead of him.   A passenger, later

identified as Edward A. Hines, Jr., exited the second vehicle and

the car drove away.   Parrish told Elkins "[h]old on a minute,"

and Parrish jogged over to Hines.   Elkins remained seated in the

vehicle.   Parrish "went over to [Hines]" and "stopped and spoke

to [Hines] a minute -- or I observed [Parrish and Elkins]

appearing to be talking."   Parrish and Hines looked over in

Elkins' direction.    Elkins stated that "both [Parrish and Hines]

walked back over to my vehicle where I was stopped in the road."

Parrish "[was] standing less than five inches away from . . .

Hines" and "both stood outside of my half open window together."

Parrish watched Elkins' and Hines' hands as Elkins exchanged

money for "two small chunks of crack cocaine in a cigarette wrap

-- the clear outside packaging of a cigarette wrap" from Hines.

After obtaining the drugs, Elkins left Parrish and Hines standing

together in the street.   Shortly thereafter, a second officer

arrested Hines and Parrish.

     Parrish's version of events was similar; however, Parrish

stated, "I wasn't going to sell him [any drugs]. . . . I was




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going to basically have −− I mean, ask somebody did they have

anything, but I wasn't going to sell him nothing [sic]."       Parrish

admitted to having four or five prior felony convictions.
     Parrish was convicted in a bench trial of distribution of

cocaine, distribution of cocaine within 1,000 feet of school

property, and conspiracy to distribute cocaine.        On appeal, he

argues that the evidence was insufficient to support his

conviction for conspiracy to distribute cocaine.

                 II.     SUFFICIENCY OF THE EVIDENCE

     When the sufficiency of the evidence is an issue on appeal,

an appellate court must view the evidence and all reasonable

inferences fairly deducible therefrom in the light most favorable

to the Commonwealth.     See Cheng v. Commonwealth, 240 Va. 26, 42,

393 S.E.2d 599, 608 (1990).     On appeal, the decision of a trial

court sitting without a jury is afforded the same weight as a

jury's verdict and will not be disturbed unless plainly wrong or

without evidence to support it.     See King v. Commonwealth, 217

Va. 601, 604, 231 S.E.2d 312, 315 (1977).

     A conspiracy is "an agreement between two or more persons by

some concerted action to commit an offense."     Brown v.

Commonwealth, 3 Va. App. 101, 107, 348 S.E.2d 408, 411 (1986)

(citations omitted).     Proof of a conspiracy to distribute

narcotics can be inferred by surrounding facts and circumstances.

See Moore v. Commonwealth, 25 Va. App. 277, 289, 487 S.E.2d 864,

870 (1997).   In fact,




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          [c]ircumstantial evidence is as acceptable to
          prove guilt as direct evidence, and in some
          cases, such as proof of intent or knowledge,
          it is practically the only method of proof.
          [A] common purpose and plan may be inferred
          from a development and collocation of
          circumstances. 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
          with a view to its attainment, the jury will
          be justified in concluding that they were
          engaged in a conspiracy to effect that
          object.

Amato v. Commonwealth, 3 Va. App. 544, 552, 352 S.E.2d 4, 9

(1987) (citations omitted).

     Although, "[e]vidence which merely established aiding or

abetting in the commission of the distribution offense will not

suffice to prove a conspiracy . . . [t]he evidence need not show

that . . . [the defendant] knew the entire scope or details of

the plan of distribution."    Moore, 25 Va. App. at 288, 487 S.E.2d

at 870 (citations omitted).   In Moore, the defendant appealed his

convictions for possession of heroin with intent to distribute

and conspiracy to possess heroin with the intent to distribute.

In part, he claimed that the evidence failed to prove a

conspiracy existed between him and a co-felon.   The evidence

revealed Moore's admission that he knew that the co-felon

intended to distribute heroin and his contradictory statements

about his knowledge of the contents of the bag in his pants.

     We affirmed both of Moore's convictions.    With respect to

the conspiracy conviction, we held, "[a]n agreement between Moore

and [his co-felon] may be inferred from the facts and



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circumstances."   Id. at 289, 487 S.E.2d at 870.   As we have

noted, "determinations of credibility lie within the purview of

the fact finder, who may reject a witness' testimony . . . [and]

the fact finder may conclude that the defendant lied to conceal

his guilt."   Id. at 289, 487 S.E.2d at 870.

     In the case now before us, Parrish argues that the evidence

was not sufficient to support his conviction for conspiracy to

distribute cocaine.   Citing our decision in Feigley v.

Commonwealth, 16 Va. App. 717, 432 S.E.2d 520 (1993), he argues

that the Commonwealth failed to prove the existence of a

conspiracy between him and Hines beyond a reasonable doubt.     In

Feigley, we reversed the defendant's conviction for conspiracy to

distribute narcotics, holding that when "the evidence is equally

susceptible to two constructions, one of which would support

conspiracy and another which would not, the fact finder is not

free to arbitrarily select that theory of conspiracy."     Id. at

724, 432 S.E.2d at 525.   Parrish contends that the evidence, even

when viewed in the light most favorable to the Commonwealth, was

equally subject to interpretations of guilt or innocence.

     In reviewing the evidence in the light most favorable to the

Commonwealth, we hold that the evidence was sufficient to support

the finding that a conspiracy existed between Parrish and Hines

to sell cocaine to Elkins.   We hold that the Commonwealth

excluded all reasonable hypotheses of Parrish's innocence in a

conspiracy to distribute cocaine with Hines.   Parrish asked

Elkins "what he needed," and thereafter he conferred with Hines.


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Hines came to Elkins' car with Parrish and, without any further

conversation, completed the transaction.   The evidence was

sufficient to find beyond a reasonable doubt that an agreement

was formed between Parrish and Hines to distribute crack cocaine

to Elkins.   The conviction is affirmed.

                                                         Affirmed.




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Benton, J., dissenting.

     Ronald Parrish appeals from a conviction of conspiring with

Edward A. Hines, Jr., for the purpose of distributing cocaine.       I

believe the evidence proved only that Parrish aided and abetted

Hines when Hines distributed cocaine to the police officer.

Parrish was convicted of that offense.    In my view, the evidence

was insufficient to prove a conspiracy.

     By long standing definition, a "'[c]onspiracy is an
agreement between two or more persons by some concerted action to

commit an offense.'"   Falden v. Commonwealth, 167 Va. 542, 544,

189 S.E. 326, 327 (1937) (emphasis added) (citation omitted).

"The agreement is the essence of the conspiracy offense."     Zuniga

v. Commonwealth, 7 Va. App. 523, 527-28, 375 S.E.2d 381, 384

(1988).   Thus, it necessarily "follows that if the Commonwealth

has failed to prove an agreement to commit an offense . . . , the

prosecution falls of its own weight."     Falden, 167 Va. at 544,

189 S.E. at 327.   As in every criminal prosecution for

conspiracy, the Commonwealth bears the burden of "'prov[ing]
beyond a reasonable doubt that an agreement existed.'"     Feigley

v. Commonwealth, 16 Va. App. 717, 722, 432 S.E.2d 520, 524

(1993).

     The police officer testified that after he stopped his

vehicle near Parrish, Parrish asked what he needed.    When the

officer said $10 or $20 worth of cocaine, Parrish asked the




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officer to drive him to another location four to five blocks

away.    The officer then described the following events:

             [Parrish] asked for a ride, and I told him
             no. I said, I didn't know him. I wasn't
             going to give him a ride. At that time he
             appeared that since I wouldn't give him a
             ride, there wouldn't have been a transaction
             made.

                I crept the car up a little bit. A second
             vehicle pulled up ahead of me on Shore
             Street. A passenger got out of that vehicle.
             The vehicle left the area. Mr. Parrish said:
             Hold on a minute. He jogged over to the
             second individual . . . .

                I stayed in the vehicle. . . . He went
             over to the second individual, who we later
             identified as Edward Hines. He stopped and
             spoke to him a minute -- or I observed them
             appearing to be talking. Their mouths were
             moving. They looked in my direction.

                Both individuals walked back over to my
             vehicle where I was stopped in the road. Mr.
             Parrish, standing less than five inches away
             from Mr. Hines . . . .

             *      *      *      *      *      *      *

                I observed [Parrish's] eyes looking in
             that direction at a transaction that occurred
             between me and Mr. Hines.

                I exchanged $20 of police department funds
             for two small chunks of crack cocaine in a
             cigarette wrap -- the clear outside packaging
             of a cigarette wrap -- with Mr. Hines. At
             which time after I obtained the drugs, I left
             the area leaving Mr. Hines and Mr. Parrish
             standing in the street together.

        No other evidence proved any further involvement by Parrish.

As in Feigley, "[t]here is no evidence to prove . . . that
[Parrish] and [Hines] had prearranged that they would distribute

drugs or that [Parrish] would 'run' drugs for [Hines]."      16 Va.



                                 - 8 -
App. at 723, 432 S.E.2d at 524.   Indeed, the evidence suggests

that Hines' appearance was fortuitous and that his conversation

with Parrish was unplanned.   In any event, because the evidence

failed to prove the nature of the conversation between Parrish

and Hines, the evidence is consistent with the hypothesis that

Parrish, knowing the officer would not drive five blocks to buy

cocaine from Parrish, informed Hines that a customer was sitting

in the vehicle who wanted to purchase $10 or $20 worth of

cocaine.   Significantly and simply put, the evidence failed to

prove an agreement.

       Where evidence in the record "'is equally susceptible of two

interpretations one of which is consistent with the innocence of

the accused, [the trier of fact] cannot arbitrarily adopt that

interpretation which incriminates [the accused].'"    Corbett v.

Commonwealth, 210 Va. 304, 307, 171 S.E.2d 251, 253 (1969)

(citation omitted).   "On this record, it is equally, if not more,

plausible that . . . [Parrish], who had been approached by [the

officer], simply facilitated a single drug sale between [Hines]

and [the officer]."    Feigley, 16 Va. App. at 723, 432 S.E.2d at

524.   In other words, Parrish "was simply aiding and abetting in

the drug sale."    See id.

       The evidence leads only to speculation, is not wholly

consistent with Parrish's guilt of the conspiracy offense, and

certainly is not wholly inconsistent with innocence of that

offense.    See Bishop v. Commonwealth, 227 Va. 164, 169, 313




                                - 9 -
S.E.2d 390, 393 (1984).   Suspicion that an accused has committed

an offense is insufficient to prove guilt beyond a reasonable

doubt.   Id. at 170, 313 S.E.2d at 393.    Therefore, I would

reverse the conspiracy conviction.     I dissent.




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