                              COURT OF APPEALS OF VIRGINIA


Present: Judges Humphreys, Petty and Alston
Argued at Richmond, Virginia


ERIC LAMONT CAMERON
                                                            MEMORANDUM OPINION* BY
v.     Record No. 1033-08-2                                 JUDGE ROSSIE D. ALSTON, JR.
                                                                SEPTEMBER 8, 2009
COMMONWEALTH OF VIRGINIA


                     FROM THE CIRCUIT COURT OF HALIFAX COUNTY
                                 Leslie M. Osborn, Judge

                Buddy A. Ward, Public Defender (Office of the Public Defender, on
                brief), for appellant.

                Erin M. Kulpa, Assistant Attorney General (William C. Mims,
                Attorney General, on brief), for appellee.


       Eric Lamont Cameron (appellant) was convicted in a jury trial of conspiring to possess

with intent to distribute more than one-half ounce, but not more than five pounds of marijuana, in

violation of Code §§ 18.2-256 1 and 18.2-248.1(a)(2). 2 On appeal, appellant raises three issues:



       * Pursuant to Code § 17.1-413, this opinion is not designated for publication.
       1
           Code § 18.2-256 provides:

                Any person who conspires to commit any offense defined in this
                article or in the Drug Control Act (§ 54.1-3400 et seq.) is
                punishable by imprisonment or fine or both which may not be less
                than the minimum punishment nor exceed the maximum
                punishment prescribed for the offense, the commission of which
                was the object of the conspiracy.
       2
          Code § 18.2-248.1 states in pertinent part that “it shall be unlawful for any person to
sell, give, distribute or possess with intent to sell, give or distribute marijuana,” and “[a]ny
person who violates this section with respect to . . . [m]ore than one-half ounce but not more than
five pounds of marijuana is guilty of a Class 5 felony . . . .”
(1) whether the trial court erred by finding the evidence sufficient to establish that an agreement

existed between appellant and another person to possess marijuana with the intent to distribute;

(2) whether the trial court erred by instructing the jury on a charge of possessing marijuana with

the intent to distribute, but by way of the jury verdict form, asking the jury to determine if

appellant was guilty of conspiracy to possess marijuana with intent to distribute; and (3) whether

the trial court erred by denying appellant’s motion to set aside the jury’s verdict. 3 For the

reasons that follow, we affirm appellant’s conviction.

                                        I. BACKGROUND

       As the parties are fully conversant with the record in this case, and because this

memorandum opinion carries no precedential value, this opinion recites only those facts and

incidents of the proceedings as are necessary to the parties’ understanding of this appeal. “On

appeal, we construe the evidence in the light most favorable to the Commonwealth, granting to it

all reasonable inferences fairly deducible therefrom.” Zoretic v. Commonwealth, 13 Va. App.

241, 242, 409 S.E.2d 832, 833 (1991) (citing Higginbotham v. Commonwealth, 216 Va. 349,

352, 218 S.E.2d 534, 537 (1975)). Viewed by that standard, the evidence demonstrates that in

February 2004, appellant began “fronting” Maurice Cousins marijuana. Under the terms of this

arrangement, appellant gave Cousins marijuana (he “fronted” the contraband in advance of the

sale), and after Cousins sold the marijuana, he repaid appellant from his profits. Appellant gave

Cousins approximately one-quarter pound marijuana every other week. Cousins divided the

marijuana into seven-gram quantities, which he sold for $25 a piece.




       3
         This Court granted the appeal of a fourth issue: “Whether the Court should consider the
above questions presented under the ends of justice exception if the Court determines that the
issues were not sufficiently raised to the trial judge?” In his brief, appellant chose to address this
question in the analyses of the other issues. We shall do the same.

                                                -2-
       On several occasions, Cousins saw a man named “Darrell” bring marijuana to the

appellant, in quantities ranging from three pounds to twelve pounds. Brian Clinhans testified at

trial that Darrel Smith supplied Clinhans twenty pounds of marijuana per month. Clinhans

divided the twenty-pound quantity into one-pound quantities, which he sold for approximately

$800 to $900.

       Ramone Perkins purchased marijuana from Cousins for personal use. Additionally,

appellant “fronted” powder cocaine to Perkins. Appellant instructed Perkins that he wanted to

receive $40 for every gram Perkins sold to other buyers.

       A grand jury indicted appellant for being a principal of a continuing criminal enterprise

that sold or possessed with the intent to sell at least five kilograms of cocaine in violation of

§ 18.2-248(H)(2) and conspiracy to manufacture, sell, give, distribute, or possess with the

intention to manufacture, sell, give, or distribute more than one-half ounce of marijuana in

violation of §§ 18.2-256 and 18.2-248.1(a)(2).

       A two-day jury trial took place March 29-30, 2007. The trial court admitted into

evidence a number of items recovered during a police raid of a house in Halifax County.

Testimony at trial indicated that the house was a “crack house”; both drug dealers and drug

purchasers visited it regularly. Appellant frequented this house, and various pieces of mail

addressed to appellant and bearing the Halifax County house’s address were among the evidence

admitted at trial. Bills and pay stubs bearing appellant’s name were also found at the home and

admitted into evidence. Plastic bags containing marijuana residue were also recovered during

the police raid and admitted into evidence by the Commonwealth.

       At the close of the Commonwealth’s evidence, appellant moved to strike the continuing

criminal enterprise charge. He renewed this motion at the close of the evidence. The trial court




                                                 -3-
overruled both of these motions. Notably, appellant did not challenge the sufficiency of the

evidence as to the charge of conspiracy to possess marijuana with the intent to distribute.

       Subsequently, the trial court reviewed the proposed jury instructions with counsel outside

the presence of the jury. The trial court read Instruction 10 silently, then asked for responses

from counsel: “[T]he defendant is charged with the crime of possession with intent to distribute

more than one-half ounce, but less than five pounds of marijuana. The Commonwealth must

prove beyond a reasonable doubt. Any problem with that one?” Defense counsel responded,

“That’s correct. No problem.”

       The trial court charged the jury as follows:

                The defendant is charged with the crime of possession with intent
                to distribute more than one-half ounce, but not more than five
                pounds of marijuana. The Commonwealth must prove beyond a
                reasonable doubt that the defendant possessed more than one-half
                ounce, but not more than five pounds of marijuana with intent to
                distribute.

                If you find from the evidence that the Commonwealth has proved
                beyond a reasonable doubt that the defendant possessed more than
                one-half ounce, but not more than five pounds of marijuana with
                intent to distribute[,] then you shall find the defendant guilty, but
                you shall not fix the punishment until the verdict has been returned
                and further evidence has been heard by you. If you find that the
                Commonwealth has failed to prove beyond a reasonable doubt that
                the defendant distributed marijuana[,] then you shall find the
                defendant not guilty.

       In closing argument, appellant maintained that the Commonwealth had not presented

sufficient evidence to prove a conspiracy to distribute marijuana. 4 In contrast, during closing



       4
           Appellant’s counsel argued:

                        We got another charge here today, . . . [c]onspiracy to
                distribute or—it’s conspiracy regarding the marijuana charge.
                Well, I don’t—that’s again for you to decide. Basically, I don’t
                believe any of those analyses that you have or any of the testimony
                that you got from the man from the laboratory indicates that there
                                                -4-
argument the Commonwealth referenced the testimony of Cousins, and argued that conspiracy

“simply consists of an agreement to distribute marijuana. Once the agreement is made[,] the

crime is committed. . . . The Commonwealth has over proven that conspiracy charge.”

       Before the jury retired to deliberate, the trial judge informed the jury that they would be

given two verdict forms to consider during their deliberations, one of which was for possession

with the intent to distribute one-half ounce, but not more than five pounds of marijuana. The

Commonwealth noted that the charge was for conspiracy to possess marijuana. The trial judge,

without objection by the defendant, corrected the verdict form by amending the word

“possession” to “conspiracy to possess” directly on the verdict form. After the correction, the

verdict form read: “We the jury find the defendant guilty of conspiracy to possess with the intent

to distribute more than one-half ounce but not more than five pounds of marijuana.”

       The jury found the defendant guilty of conspiracy to possess marijuana with intent to

distribute. 5 Appellant moved to set aside the verdict as being contrary to the law and the

evidence. He stated no other grounds for his motion, and the trial court overruled it. Appellant

later moved to set aside the jury’s verdict on the grounds that one of the witnesses committed




                 was anything more than trace amounts of marijuana that were
                 found anywhere.

                         And with regard to any kind of conspiracy to do so, your
                 memory is better than mine. I sure didn’t hear anything from that
                 standpoint. So as far as that’s concerned, I didn’t . . . even address
                 that issue much because of the fact I heard nothing that really dealt
                 with it. We were talking about this [continuing criminal enterprise
                 charge] the whole time, and that’s what this—basically the
                 evidence was. And we had this other charge. Maybe [the
                 Commonwealth] forgot about it. But ladies, and gentlemen, I’d
                 venture to say that as far as that’s concerned, that charge[,] we
                 have no evidence on that at all.
       5
           The jury found appellant not guilty of leading a continuing criminal enterprise.
                                                 -5-
perjury. He did not challenge the jury instructions or the sufficiency of the evidence as to the

conspiracy charge. This appeal followed.

                                           II. ANALYSIS

       Preliminarily, we will address appellant’s second question, which relates to the erroneous

jury instruction, because we find it to have the most merit, and to be somewhat determinative in

our answer to his challenge of the sufficiency of the evidence. Then, we will address appellant’s

challenge to the sufficiency of the evidence. Finally, we will address his question relating to the

trial court’s denial of appellant’s motion to set aside the verdict.

                                  A. THE JURY INSTRUCTION

       Needless to say, the factual circumstances of this case are vexing. The Commonwealth

concedes that the trial court erred by failing to provide the jury with instructions relating to the

charge of which appellant was indicted and convicted. A proper jury instruction on conspiracy

to possess marijuana with the intent to distribute would have stated in pertinent part:

               The Commonwealth must prove beyond a reasonable doubt each
               of the following elements . . .:
               (1) That the defendant entered into an agreement with one or more
                    other persons; and
               (2) That the agreement was that they were to commit the crime of
                    possessing marijuana with the intent to distribute; and
               (3) That both defendant and the other party to the agreement
                    intended to commit the crime of possessing marijuana with the
                    intent to distribute.

See Virginia Model Jury Instruction G14.100. However, the Commonwealth asserts that

appellant is barred from challenging the instruction on appeal by Rule 5A:18. Pursuant to

Rule 5A:18,

               [n]o ruling of the trial court . . . will be considered as a basis for
               reversal unless the objection was stated together with the grounds
               therefor at the time of the ruling, except for good cause shown or
               to enable the Court of Appeals to attain the ends of justice.



                                                 -6-
                The laudatory purpose behind Rule 5A:18, . . . frequently referred
                to as the contemporaneous objection rules, is to require that
                objections be promptly brought to the attention of the trial court
                with sufficient specificity that the alleged error can be dealt with
                and timely addressed and corrected when necessary.

Brown v. Commonwealth, 8 Va. App. 126, 131, 280 S.E.2d 8, 10 (1989). Thus, the

contemporaneous objection rule ‘“protect[s] the trial court from appeals based upon undisclosed

grounds, . . . prevent[s] the setting of traps on appeal, . . . enable[s] the trial judge to rule

intelligently, and . . . avoid[s] unnecessary reversals and mistrials.’” Jimenez v. Commonwealth,

241 Va. 244, 248-49, 402 S.E.2d 678, 680 (1991) (quoting Fisher v. Commonwealth, 236 Va.

403, 414, 374 S.E.2d 46, 52 (1988)).

         Appellant does not dispute his failure to raise an objection to the jury instruction either at

trial or during his post-trial motion to set aside the verdict. Rather, he asks that we address this

issue because it falls within the “ends of justice” exception to Rule 5A:18.

         ‘“The ends of justice exception is narrow and is to be used sparingly.’” Redman v.

Commonwealth, 25 Va. App. 215, 220, 487 S.E.2d 269, 272 (1997) (quoting Brown, 8 Va. App.

at 132, 280 S.E.2d at 11). “In order to invoke the ends of justice exception, we must review the

record to determine whether a miscarriage of justice has occurred.” Redman, 25 Va. App. at

218, 487 S.E.2d at 271 (citing Johnson v. Commonwealth, 5 Va. App. 529, 532, 365 S.E.2d 237,

239 (1988)). “In order to avail oneself of the exception, [an appellant] must affirmatively show

that a miscarriage of justice has occurred, not that a miscarriage might have occurred.” Id. at

221, 487 S.E.2d at 272 (citing Mounce v. Commonwealth, 4 Va. App. 433, 436, 357 S.E.2d 742,

744 (1987)). This Court has held that a miscarriage of justice has occurred when the record

contains an error that is “clear, substantial, and material.” Brown, 8 Va. App. at 132, 380 S.E.2d

at 11.




                                                   -7-
       “[T]he ‘ends of justice’ exception applies to permit review when a ‘granted instruction

omitted some essential elements of the offense’ and ‘no evidence was produced relating to those

elements.’” Bazemore v. Commonwealth, 42 Va. App. 203, 219, 590 S.E.2d 602, 610 (2004)

(quoting Jimenez, 241 Va. at 251, 402 S.E.2d at 681-82). Furthermore, “neither the Supreme

Court of Virginia, nor this Court, has held that we must always apply the ends of justice

exception in cases involving faulty jury instructions to which no objection was noted below—

even where such faulty instructions improperly stated the elements of an offense.” Id. (citing

Phoung v. Commonwealth, 15 Va. App. 457, 464-65, 424 S.E.2d 712, 716 (1992) (refusing to

consider, for the first time on appeal, defendant’s contention that the trial court improperly

instructed the jury on the elements of a burglary charge)).

       The rules of law stated above are in obvious tension with the Court’s duty to “see that the

law has been clearly stated and that the instructions cover all issues which the evidence fairly

raises.” Swisher v. Swisher, 223 Va. 499, 503, 290 S.E.2d 856, 858 (1982) (citing E. I. DuPont

v. Snead’s Adm’r, 124 Va. 177, 97 S.E. 812 (1919)). Correspondingly, it is the trial court’s

responsibility “‘to instruct the jury on all principles of law applicable to the pleadings and the

evidence.’” Dowdy v. Commonwealth, 220 Va. 114, 116, 255 S.E.2d 506, 508 (1979) (quoting

Taylor v. Commonwealth, 186 Va. 587, 592, 43 S.E.2d 906, 909 (1947)). Additionally, “a

correct statement of the law applicable to the case, when the law is stated, . . . [is one of the]

essentials of a fair trial.” Id. (quoting Limbaugh v. Commonwealth, 149 Va. 383, 400, 140 S.E.

133, 138 (1927)) (emphasis added). In a criminal trial, if the elements of a crime are not defined

by the jury instructions, the jury “cannot properly determine whether the Commonwealth has

carried its burden,” id., of proving ‘“every essential element of the offense beyond a reasonable

doubt,’” id. (quoting Powers v. Commonwealth, 211 Va. 386, 388, 177 S.E.2d 628, 629 (1970)).




                                                 -8-
       In this context, the record in this case does not support the application of the “ends of

justice” exception to Rule 5A:18. Attaining the “ends of justice” requires the correction of the

instruction, if the instruction allowed the jury to convict appellant without proof of an element of

the crime of conspiracy to possess marijuana with the intent to distribute. See Campbell v.

Commonwealth, 14 Va. App. 988, 994-95, 421 S.E.2d 652, 656 (1992). Appellant correctly

argues that the trial court neglected to instruct the jury on one of the required elements of the

offense: as a matter of law, what constituted a conspiracy. However, despite the trial court’s

failure to instruct the jury regarding the elements of conspiracy, argument was presented to the

fact finder on this very issue, and more importantly, there was sufficient and competent evidence

in the record that appellant participated in a conspiracy to possess drugs with the intent to

distribute said drugs to bar the invocation of the “ends of justice” exception to Rule 5A:18.

       “Conspiracy is defined as ‘an agreement between two or more persons by some concerted

action to commit an offense.’” Zuniga v. Commonwealth, 7 Va. App. 523, 527, 375 S.E.2d 381,

384 (1988) (quoting Wright v. Commonwealth, 224 Va. 502, 505, 297 S.E.2d 711, 713 (1982)).

“There can be no conspiracy without an agreement, and the Commonwealth must prove beyond

a reasonable doubt that an agreement existed.” Floyd v. Commonwealth, 219 Va. 575, 580, 249

S.E.2d 171, 174 (1978) (citations omitted). “Proof of an explicit agreement is not required and

oftentimes the prosecution must rely only on circumstantial evidence to establish the

conspiracy.” Stevens v. Commonwealth, 14 Va. App. 238, 241, 415 S.E.2d 881, 883 (1992)

(citing Stultz v. Commonwealth, 6 Va. App. 439, 442-43, 369 S.E.2d 215, 217 (1988); Wright,

224 Va. at 505, 297 S.E.2d at 713). “Liability as a conspirator is not dependent upon knowledge

of the details and the scope of the conspiracy or the identity and role of each co-conspirator.”

Barber v. Commonwealth, 5 Va. App. 172, 179, 360 S.E.2d 888, 891 (1987).




                                                -9-
       In Virginia, the case law is fairly clear regarding the elements of the crime of possession

with intent to distribute. “As a general rule a single buyer-seller relationship, standing alone,

does not constitute a conspiracy [to distribute a controlled substance].” Zuniga, 7 Va. App. at

528, 375 S.E.2d at 385 (citing United States v. Walls, 582 F. Supp. 1266 (N.D. W. Va. 1984);

Reed v. Commonwealth, 213 Va. 593, 594, 194 S.E.2d 746, 747 (1973)). However, “the fact

finder may infer from the seller’s knowledge that the drugs are being resold an agreement

between the seller and buyer to supply drugs for distribution.” Feigley v. Commonwealth, 16

Va. App. 717, 722, 432 S.E.2d 520, 524 (1993) (citing Zuniga, 7 Va. App. at 528-29, 375 S.E.2d

at 385). Thus, if “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

been proved.” Zuniga, 7 Va. App. at 529, 375 S.E.2d at 385.

       The case law regarding the crime of possession with the intent to distribute is instructive

in our analysis of whether the record contains evidence that appellant committed the crime of

conspiracy to possess with the intent to distribute. The record shows that police recovered

plastic bags containing marijuana residue from a residence where appellant received mail and

that he frequented. Far more importantly, appellant received large quantities of marijuana,

ranging from three pounds to twelve pounds, from a known marijuana supplier, i.e., Smith.

Appellant separated these large deliveries into smaller quantities, which he gave to Cousins on

credit. Appellant employed a similar method to supply Perkins with cocaine, and he specifically

dictated the amount of money he wished to be reimbursed from the resale of the cocaine. From

appellant’s similar arrangement with Perkins, the jury reasonably could infer that appellant

intended for Cousins to pay appellant from the profits of the marijuana sales. Waller v.

Commonwealth, 27 Va. App. 71, 75, 497 S.E.2d 508, 510 (1998) (holding that the finder of fact

                                                - 10 -
“may draw reasonable inferences from the evidence, and [the appellate court is] required to

respect the [fact finder’s] reasonable inferences on appeal” (citing Martin v. Commonwealth, 4

Va. App. 438, 443, 358 S.E.2d 415, 418 (1987))). Furthermore, the credit arrangement with

Cousins allowed appellant to maintain a stake in the venture. See Zuniga, 7 Va. App. at 532, 375

S.E.2d at 387 (holding that a seller retains an interest in and maintains a continuing participation

in the sale of drugs when he advances the drugs to a buyer on credit). At various times during

their venture, either appellant or Cousins possessed marijuana, with the intent that it would

eventually be sold to a third party. Because appellant supplied Cousins with marijuana on credit,

knowing that Cousins would resell the drugs, the Commonwealth presented sufficient evidence

of an agreement between and concert of action by the parties to prove conspiracy beyond a

reasonable doubt. See, e.g., id.; Davis v. United States, 279 F.2d 576, 578 (4th Cir. 1960).

       In the present case, it is clear that the trial court erred by omitting a jury instruction

regarding the conspiracy element of the offense charged in the indictment. Because the

erroneous instruction related to the elements of the crime charged, the error was also substantial.

However, because there is uncontradicted evidence that appellant indeed participated in a

conspiracy to possess marijuana with the intent to distribute, and the appellant presented his

defense to this very charge to the jury, the effect on the outcome of the trial is not material. See

Phoung, 15 Va. App. at 465-66, 424 S.E.2d at 717. Accordingly, although the factual

circumstances forming the predicate for this issue are somewhat unusual, because appellant

cannot show that a miscarriage of justice occurred, Rule 5A:18 bars this Court from considering

the merits of appellant’s argument on appeal.

                            B. SUFFICIENCY OF THE EVIDENCE

       Appellant also contends on appeal that the evidence was insufficient to prove that an

agreement existed between appellant and another individual to possess marijuana with the intent

                                                - 11 -
to distribute; however, because appellant failed to move to strike the evidence or to set aside the

verdict on this ground, 6 Rule 5A:18 bars our consideration of his insufficient evidence claim.

Again, the circumstances presented to the Court do not merit the invocation of the “ends of

justice” exception to Rule 5A:18.

       As discussed above, an appellant must show that a miscarriage of justice occurred to

warrant the invocation of the “ends of justice” exception. Redman, 25 Va. App. at 221, 487

S.E.2d at 272 (citing Mounce, 4 Va. App. at 436, 357 S.E.2d at 744). When sufficiency of the

evidence is raised for the first time on appeal, “the appellant must demonstrate that he or she was

convicted for conduct that was not a criminal offense or the record must affirmatively prove that

an element of the offense did not occur.” Id. at 222, 487 S.E.2d at 273. In this case, appellant is

not able to affirmatively show that he did not enter into an agreement with one or more persons

to commit the crime of possessing marijuana with the intent to distribute. In fact, as discussed

above, we find that the Commonwealth provided evidence that addressed every element of the

charged offense. Accordingly, because no miscarriage of justice occurred, we will not consider

appellant’s claim that the evidence was insufficient.

                         C. MOTION TO SET ASIDE THE VERDICT

       Lastly, appellant contends that it was error for the trial court to deny appellant’s motion

to set aside the jury’s verdict because the evidence did not prove beyond a reasonable doubt that

the appellant entered into a conspiracy, and/or because the trial court erred by incorrectly

instructing the jury on the law. Because appellant essentially restates the positions argued in

respect to the first two questions presented, we decline to address this question.




       6
         Appellant moved to strike the evidence in regard to the continuing criminal enterprise
charge, but did not move to strike the evidence regarding the conspiracy charge.
                                              - 12 -
                               III. CONCLUSION

For these reasons, we affirm appellant’s conviction.

                                                       Affirmed.




                                      - 13 -
