                       COURT OF APPEALS OF VIRGINIA


Present:  Chief Judge Fitzpatrick, Judge Annunziata and
          Senior Judge Overton
Argued at Norfolk, Virginia


ROBERT WAYNE DEHAVEN
                                          MEMORANDUM OPINION * BY
v.   Record No. 1886-01-1                 JUDGE NELSON T. OVERTON
                                               JULY 23, 2002
COMMONWEALTH OF VIRGINIA


           FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
                   John C. Morrison, Jr., Judge

           Joseph A. Pennington (Joseph A. Pennington &
           Associates, P.C., on brief), for appellant.

           Jennifer R. Franklin, Assistant Attorney
           General (Jerry W. Kilgore, Attorney General,
           on brief), for appellee.

     Robert Wayne Dehaven, appellant, was convicted of conspiring

to receive stolen goods.    He appeals and contends the evidence was

insufficient to support his conviction, alleging specifically that

(I) there was no evidence that he entered an agreement to perform

an unlawful act and (II) the only evidence of wrongful conduct

involved a two-party transaction which is not a sufficient

predicate for a conspiracy conviction.   For the following reasons,

we affirm appellant's conviction.




     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
                                 Facts

     "On appeal, 'we review the evidence in the light most

favorable to the Commonwealth, granting to it all reasonable

inferences fairly deducible therefrom.'"     Archer v.

Commonwealth, 26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997)

(citation omitted).    "The credibility of the witnesses and the

weight accorded the evidence are matters solely for the fact

finder who has the opportunity to see and hear that evidence as

it is presented."     Sandoval v. Commonwealth, 20 Va. App. 133,

138, 455 S.E.2d 730, 732 (1995).

     So viewed, the evidence proved that Chrystine Kelley stole

goods, such as medicine, DVDs, tools, clothes and Disney movies,

to support her heroin addiction.     Kelley was a "booster," who is

someone who steals merchandise and "fences" the goods.    From

1993 until February 10, 2000, Kelley sold these stolen goods to

appellant at a pawnshop, a flea market, in parking lots, or on

side streets.   From January 1, 1998 until August 8, 2000, the

time period in question, Kelley had approximately 100

transactions with appellant.    The goods she sold appellant at

any one transaction had a retail value of between $2,000 and

$10,000.   She would carry the goods, always in their original

wrappers, in grocery bags to where she met appellant.    Depending

on how much merchandise she was selling appellant in the

transaction, she would either dump it out, count it, and



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appellant would pay her for it, or she would deliver the goods

to appellant with an amount already tallied, appellant would pay

her that amount, and "get back to her" if something was not

right.   Appellant was only one of three "fences" to whom Kelley

sold the stolen goods.    Kelley "boosted" the goods immediately

after stealing them, within an hour if she could "get in touch

with the fence."

     Appellant would request certain items from Kelley, such as

DVDs, specific size bottles of medicine, or computer software,

and suggested to Kelley the stores from which to steal the

specific goods he wanted.   When Kelley was in withdrawal and

"too sick to steal," she would borrow money from appellant for a

"fix."

     Kelley knew of six or seven other people who "boosted" for

appellant, including Eddie Brown.       Brown, also a heroin addict,

met appellant in November 1999.    A friend of Brown's told him

that appellant "buys medicine."    Brown stole medicine from

K-Mart and sold it, in its original packaging, to appellant the

same day.   Brown also sold appellant DVDs, Nintendo cartridges,

hair clippers, and "just about anything."      If Brown sold to

appellant early in the day, appellant encouraged Brown to "go

out and get some more."   Brown stole merchandise and sold it to

appellant in order to support his heroin addiction.




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        Thereafter, Brown worked with the police as a confidential

informant.    Brown introduced appellant to Officer W.L. Brabson,

who was working as an undercover officer.    Brabson sold

appellant a bag containing DVDs.    Brown told appellant that

Lawrence Hill, another officer working on the case, was "the

person to see if he needed more DVD movies."    Two weeks later,

Brabson called appellant's cell phone and arranged to meet and

sell appellant more DVDs.    When they met thirty-five minutes

later in the Big Top lot, appellant drove up and told Brabson to

get in the vehicle "because he did not want to look suspicious."

Brabson sold appellant DVDs, film, and razor blades for cash.

Several months later, Brabson again called appellant's cell

phone and told him he had more DVDs and arranged to meet him at

a 7-Eleven parking lot.    When appellant drove up, Brabson handed

him the bag of DVDs, appellant put the bag into the backseat and

paid Brabson in cash.

        After buying these goods from his "boosters," appellant

would sell the goods to Carl Schumacher one or more times a

week.    Appellant would bring the goods to Schumacher's

warehouse.    Schumacher sold the stolen property from his

warehouse.




                                  -4-
                            Discussion

                                 I.

    At trial, appellant argued that Wharton's Rule barred his

conviction for conspiring to receive stolen goods.   Appellant

never argued to the trial court that the evidence was insufficient

to prove he entered into an unlawful agreement.   "The Court of

Appeals will not consider an argument on appeal which was not

presented to the trial court."    Ohree v. Commonwealth, 26

Va. App. 299, 308, 494 S.E.2d 484, 488 (1998).    See Rule 5A:18.

Accordingly, Rule 5A:18 bars our consideration of whether the

evidence was sufficient to prove appellant entered into an

unlawful agreement.   Moreover, the record does not reflect any

reason to invoke the good cause or ends of justice exceptions to

Rule 5A:18.

                                 II.

     "Wharton's Rule" is defined as "'[w]hen to the idea of an

offense plurality of agents is logically necessary, conspiracy,

which assumes the voluntary accession of a person to a crime of

such a character that it is aggravated by a plurality of agents,

cannot be maintained.'"   Stewart v. Commonwealth, 225 Va. 473,

478, 303 S.E.2d 877, 879 (1983) (quoting 2 F. Wharton, Criminal

Law § 1604, at 1862 (12th ed. 1932)).    "Wharton's Rule,

therefore, will bar conviction for conspiracy to commit a

criminal act where only those parties necessary to the



                                 -5-
commission of the underlying offense are involved in the

conspiracy to commit that offense."    Brown v. Commonwealth, 10

Va. App. 73, 80, 390 S.E.2d 386, 389 (1990).

     The evidence in this case supports more than a mere

buy-sell agreement.   Appellant was the "middle man" between his

"boosters" and Schumacher.   Appellant directed the activities of

his "boosters," Kelley and Brown, by telling them what he

wanted, where they could find the specific goods, and, if it was

early in the day, by directing them to obtain more goods.    In

addition, appellant made loans to Kelley so she could get "a

fix" to feel well enough to steal more goods, giving appellant a

vested interest in Kelley's success.   The fact finder could

reasonably infer that the "boosters" sold stolen goods to

appellant knowing that appellant intended to resell them and

that by following appellant's directives on what to steal and

where to steal the goods, the "boosters" intended to further,

promote, and cooperate in appellant's plan to resell the goods.

Appellant knew what his buyer wanted and, therefore, directed

his "boosters" to get those particular goods.    See Feigley v.

Commonwealth, 16 Va. App. 717, 722-23, 432 S.E.2d 520, 524

(1993) ("A conspiracy to distribute drugs can be shown by a

series of drug transactions where one person sells drugs to a

buyer who, in turn, resells them to a third party.").   More

parties were involved in the conspiracy to receive stolen goods



                                -6-
than were necessary for the underlying offense of receiving

stolen goods; therefore, Wharton's Rule does not bar appellant's

conspiracy conviction.

     The evidence, viewed in the light most favorable to the

Commonwealth, was sufficient to support the finding that a

conspiracy existed between appellant and his "boosters" to get

stolen goods to resell to third parties, one of whom was

Schumacher.   For these reasons, appellant's conviction is

affirmed.

                                                        Affirmed.




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