                     COURT OF APPEALS OF VIRGINIA


Present: Judges Baker, Bray and Overton
Argued by Teleconference


FRANK BRADFORD TIBBITT, JR.
                                           MEMORANDUM OPINION * BY
v.          Record No. 0168-96-1          JUDGE NELSON T. OVERTON
                                               MARCH 4, 1997
COMMONWEALTH OF VIRGINIA


         FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
                    Robert B. Cromwell, Jr., Judge
            James O. Broccoletti (J. F. Hoen; Zoby &
            Broccoletti, P.C., on brief), for appellant.

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



     Frank Bradford Tibbitt, Jr., was convicted by a jury of

possession of cocaine with the intent to distribute and

conspiracy to possess cocaine with the intent to distribute.    He

appeals, arguing (1) that the evidence was obtained in an illegal

search; (2) that a hearsay statement was improperly admitted; (3)

that the hearsay statement was improperly mentioned in closing

argument; and (4) that the trial judge erroneously refused one of

the defendant's jury instructions.    We disagree on each point,

and affirm Tibbitt's convictions.

     Tibbitt first contends that the search of his person was

illegal.    He claims that, although the police were justified in

stopping his vehicle, they were not justified in arresting him

     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
and searching him incident to that arrest.    Contrary to this

assertion, the police did have probable cause to arrest Tibbitt

after they stopped his vehicle.    "'[P]robable cause exists when

the facts and circumstances within the officer's knowledge, and

of which he has reasonably trustworthy information, alone are

sufficient to warrant a person of reasonable caution to believe

that an offense has been or is being committed.'"     Jones v.

Commonwealth, 18 Va. App. 229, 231, 443 S.E.2d 189, 190 (1994)

(quoting Taylor v. Commonwealth, 222 Va. 816, 820, 284 S.E.2d
833, 836 (1981)).    "To establish probable cause, the Commonwealth

must show 'a probability or substantial chance of criminal

activity, not an actual showing of such activity.'"     Ford v. City

of Newport News, 23 Va. App. 137, 143-44, 474 S.E.2d 848, 851

(1996) (quoting Boyd v. Commonwealth, 12 Va. App. 179, 188-89,

402 S.E.2d 914, 920 (1991)).

        In this case, the police were told by Ignatius Moore that a

man named Frank in a blue Renault would be involved in a drug

deal.    After observing Moore participate in a drug transaction,

the police saw Moore immediately picked up by a blue Renault

driven by Tibbitt.    Upon stopping Tibbitt’s car, the police

arrested Moore, but found that he had already transferred some of

the marked "buy money."    The knowledge and observations of the

police at that time provided probable cause to believe that

Tibbitt was not an innocent bystander, but was an accomplice to

the drug transaction.    The arrest and search of Tibbitt were



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therefore lawful, and the evidence found on Tibbitt was properly

admitted.

     Tibbitt next argues that the statement made by Moore about a

man named Frank in a blue Renault was hearsay and should not have

been admitted at trial.   Moore's statement, however, was an

exception to the hearsay rule as a statement made by a

co-conspirator.   "The admissibility of a co-conspirator's

declarations made in furtherance of the conspiracy, but outside

of the presence of a defendant, is a long established exception

to the hearsay rule in Virginia."     Rabiero v. Commonwealth, 10

Va. App. 61, 63, 389 S.E.2d 731, 732 (1990).    "[A] prima facie

case of conspiracy must be established by evidence independent of

the declarations themselves."   Id.

     The evidence presented by the Commonwealth meets this test.

Tibbitt was waiting across the street from the drug transaction,

even though Moore had changed the location at the last minute.

Once Moore was finished, Tibbitt immediately pulled out to pick

him up without any signal from Moore.    When Tibbitt was searched

shortly thereafter, some of the buy money was found on him,

apparently given to him directly after picking up Moore.     At the

time of his arrest, Tibbitt told the police that he knew that

some of what was sold to the police was soap.    This evidence,

taken as a whole, is sufficient to establish a prima facie case

that an agreement existed between Tibbitt and Moore for the sale

of drugs.   A conspiracy having been established, Moore’s



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statement to the police about a man named Frank in a blue Renault

was admissible.

        By extension, Tibbitt's claim of error as to the closing

argument also fails.    If the statement was properly admitted, the

Commonwealth was free to refer to it as evidence that the jury

could consider.

        Lastly, Tibbitt claims that the trial judge erred in

refusing a jury instruction as to an accessory after the fact.

We find no error.    "An instruction that is not supported by the

evidence . . . is properly refused."     Frye v. Commonwealth, 231

Va. 370, 388, 345 S.E.2d 267, 280 (1986).    More than a "mere

scintilla of evidence" must be present to support the

instruction.     Boone v. Commonwealth, 14 Va. App. 130, 132, 415

S.E.2d 250, 251 (1992).    In order to have been an accessory after

the fact, a felony must have been completed, Tibbitt must have

known that Moore was guilty, and Tibbitt must have received,

relieved, comforted or assisted him.     See Manley v. Commonwealth,

222 Va. 642, 645, 283 S.E.2d 207, 208 (1981).    The evidence

viewed in a light most favorable to the defendant does not

satisfy these requirements.    Tibbitt told the police that he had

no contact with Moore before the transaction and merely gave

Moore a ride without any intention of assisting him with a crime.

This evidence may tend to prove Tibbitt's innocence of any

offense, but it does not support a charge of accessory after the

fact.    The instruction was properly refused.



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Accordingly, we affirm Tibbitt's convictions.

                                        Affirmed.




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