                                             COURT OF APPEALS OF VIRGINIA


              Present: Judges Frank, Humphreys and Huff
UNPUBLISHED


              Argued at Richmond, Virginia


              SHERRIE NORMA FOSTER
                                                                               MEMORANDUM OPINION * BY
              v.     Record No. 2275-11-2                                     JUDGE ROBERT J. HUMPHREYS
                                                                                    OCTOBER 2, 2012
              COMMONWEALTH OF VIRGINIA


                           FROM THE CIRCUIT COURT OF THE CITY OF COLONIAL HEIGHTS
                                             Herbert C. Gill, Jr., Judge

                               John A. Kirkland (Law Offices of David L. Cloninger, on brief), for
                               appellant.

                               Susan M. Harris, Assistant Attorney General (Kenneth T.
                               Cuccinelli, II, Attorney General, on brief), for appellee.


                     Sherrie Norma Foster (“Foster”) was convicted at a bench trial of two counts of

              conspiracy to distribute drugs in violation of Code §§ 18.2-256 and 18.2-248. On appeal, Foster

              argues that there was no evidence that she agreed with Allen to distribute drugs. For the

              following reasons, we affirm Foster’s convictions.

                                                       I. BACKGROUND

                     This Court reviews the evidence in the light most favorable to the prevailing party in the

              trial court. Commonwealth v. Hudson, 265 Va. 505, 514, 578 S.E.2d 781, 786 (2003). This

              Court must “discard the evidence of the accused in conflict with that of the Commonwealth, and

              regard as true all the credible evidence favorable to the Commonwealth and all fair inferences to

              be drawn therefrom.” Parks v. Commonwealth, 221 Va. 492, 498, 270 S.E.2d 755, 759 (1980).

              In this light, the evidence established the following.

                     *
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
       On September 28, 2010, Detective Roger Santini (“Santini”) engineered a controlled

buy-bust operation, the target of which was Robert Allen (“Allen”), the boyfriend of Foster and

the father of her child. A police informant contacted Allen, and the two arranged to meet at Papa

John’s in Colonial Heights. Allen had trouble finding the location and made several calls to the

informant for directions. Allen arrived in the passenger seat of a black Nissan driven by Foster;

Allen’s and Foster’s three-year-old son was in the backseat. Foster parked the Nissan a few

spaces down from the informant’s truck. Allen exited the Nissan, walked to the informant’s

truck, opened the passenger door, and leaned into the truck for about five seconds. Allen gave

the informant crack for cash. Allen then returned to the passenger seat of the Nissan. Foster

backed out of the parking space and drove out onto the Boulevard. Foster did not get out of the

Nissan at any point.

       Santini set up another controlled buy on October 20, 2010, using the same informant and

targeting Allen. The informant contacted Allen via telephone, and they planned to meet at the

same Papa John’s parking lot. This time Foster drove a black Mercedes, with Allen in the

passenger seat and their son in the backseat. Foster backed into a parking space next to the

informant’s truck. Allen got out of the Mercedes, walked around to the passenger side of the

informant’s truck, and gave the informant crack for money. The encounter lasted thirty to

forty-five seconds. Allen then got back into the Mercedes, and Foster drove off. Neither Allen

nor Foster conducted any other business in that parking lot.

       The informant testified that he had known Foster for about four or five years and had

bought drugs in front of her before, and Foster testified that she had seen the informant give

Allen money before. Foster testified that she believed that on both September 28th and October

20th she and Allen were going to meet the informant to pick up Allen’s paycheck. However,

three years had passed since Allen worked for the informant, and the informant always paid

                                               -2-
Allen cash at the end of the day. The informant did not owe Allen any money for labor, and he

had not run his business in a year and a half.

        The trial court found Foster guilty as charged, and this appeal follows.

                                           II. ANALYSIS

        Foster contends that “the Commonwealth’s evidence was not sufficient beyond a

reasonable doubt to support a conviction of conspiracy to distribute a Schedule I or II drug

because there was no evidence that [Foster] had an agreement with another person to distribute a

Schedule I or II drug.”

        When the sufficiency of the evidence is challenged on appeal, this Court must “‘examine

the evidence that supports the conviction and allow the conviction to stand unless it is plainly

wrong or without evidence to support it.’” Commonwealth v. McNeal, 282 Va. 16, 20, 710

S.E.2d 733, 735 (2011) (quoting Vincent v. Commonwealth, 276 Va. 648, 652, 668 S.E.2d 137,

139-40 (2008)). The Court should review the evidence in the light most favorable to the

Commonwealth, as the prevailing party below, and determine whether “‘any rational trier of fact

could have found the essential elements of the crime beyond a reasonable doubt.’” Id. (quoting

Jackson v. Virginia, 443 U.S. 307, 319 (1979)). “Furthermore, we ‘accord the Commonwealth

the benefit of all inferences fairly deducible from the evidence.’” Brooks v. Commonwealth,

282 Va. 90, 95, 712 S.E.2d 464, 466 (2011) (quoting Glenn v. Commonwealth, 275 Va. 123,

130, 654 S.E.2d 910, 923 (2008)). If there is evidence to support the conviction, this Court may

not substitute its judgment, even if its conclusions of fact differ from the conclusions reached by

the fact-finder at trial. Id.

        Code § 18.2-248(A) provides that it is “unlawful for any person to manufacture, sell,

give, distribute, or possess with intent to manufacture, sell, give or distribute a controlled




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substance or an imitation controlled substance.” Code § 18.2-256 prescribes punishment for a

conspiracy to distribute drugs.

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

action to commit an offense.’” Williams v. Commonwealth, 53 Va. App. 50, 59, 669 S.E.2d

354, 358 (2008) (quoting Feigley v. Commonwealth, 16 Va. App. 717, 722, 432 S.E.2d 520, 524

(1993)). “The crime is ‘complete when the parties agree to commit an offense.’” Id. (quoting

Gray v. Commonwealth, 260 Va. 675, 680, 537 S.E.2d 862, 865 (2000)). “‘In order to establish

the existence of a conspiracy, as opposed to mere aiding and abetting, the Commonwealth must

prove the additional element of preconcert and connivance not necessarily inherent in the mere

joint activity common to aiding and abetting.’” Id. at 60, 669 S.E.2d at 358 (quoting Zuniga v.

Commonwealth, 7 Va. App. 523, 527, 375 S.E.2d 381, 384 (1988)). 1 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). However, “a conspiracy may be proved by circumstantial

evidence.” Id. “Indeed, from the very nature of the offense, it often may be established only by

indirect and circumstantial evidence.” Id.

       This Court has interpreted Reed v. Commonwealth, 213 Va. 593, 194 S.E.2d 746 (1973),

to stand for the proposition that “facilitation of a transaction by an individual does not, standing

alone, constitute conspiracy.” 2 Jones v. Commonwealth, 11 Va. App. 75, 83, 396 S.E.2d 844,


       1
          “‘A defendant may wittingly aid a criminal act and be liable as an aider and abettor, but
not be liable for conspiracy, which requires knowledge of and voluntary participation in an
agreement to do an illegal act.’” Zuniga, 7 Va. App. at 527, 375 S.E.2d at 384 (quoting United
States v. Bright, 630 F.2d 804, 813 (5th Cir. 1980)).
       2
         In Reed, the appellant drove an informant to a source to purchase drugs and pointed out
the source for the informant to approach. Where the appellant did not have a conversation with
the source and there was no showing that the appellant benefitted from the transaction, the
evidence was insufficient as a matter of law to prove an agreement between the defendant and
the source. Reed, 213 Va. at 594, 194 S.E.2d at 747.

                                                -4-
848 (1990). Further, this Court has stated that “evidence of a distribution offense absent an

agreement will not suffice to support a conspiracy conviction.” Zuniga, 7 Va. App. at 528, 375

S.E.2d at 385. 3 While an unlawful agreement can be inferred from overt conduct,

               [w]ithout more, mere “proof of overt acts in themselves is not
               sufficient, for it must be established that the conspiracy or
               agreement which is charged to have existed and which is the gist of
               the offense had been formed before and was existing at the time of
               the commission of [any] overt act or acts.”

Poole v. Commonwealth, 7 Va. App. 510, 513, 375 S.E.2d 371, 372-73 (1988) (quoting Harms

v. United States, 272 F.2d 478, 482 (4th Cir. 1959)).

       On the other hand, “[p]roof of an explicit agreement to distribute a controlled substance

is not required.” Brown v. Commonwealth, 10 Va. App. 73, 77, 390 S.E.2d 386, 388 (1990).

“‘A common purpose and plan may be inferred from a development and collocation of

circumstances.’” Id. at 78, 390 S.E.2d at 388 (quoting United States v. Godel, 361 F.2d 21, 23

(4th Cir. 1966)).

               Where . . . it has been shown that the defendants “by their acts
               pursued the same object, one performing one part and the others
               performing another part so as to complete it or with a view to its
               attainment, the jury will be justified in concluding that they were
               engaged in a conspiracy to effect that object.”

Id. (quoting Amato v. Commonwealth, 3 Va. App. 544, 552, 352 S.E.2d 4, 9 (1987)). Whether

the conduct of the accused

               “constituted knowing participation in [a] scheme or merely
               inadvertence . . . [is] for the jury to decide. . . . It is not necessary
               that the Government show the existence of a formal agreement
               between [alleged conspirators]. The existence of an unlawful and
               inherently covert agreement can be inferred from the overt conduct
               of the parties.”

       3
          This Court references Heacock v. Commonwealth, 228 Va. 397, 323 S.E.2d 90 (1984),
for this proposition. In Heacock, the appellant, a drug dealer, supplied free cocaine to guests at a
party. While the appellant committed a distribution offense, there was no proof that the
distribution was the product of an agreement between the appellant and the guests to act in
concert. Id. at 407, 323 S.E.2d at 96.
                                               -5-
Floyd, 219 Va. at 580, 249 S.E.2d at 175 (quoting United States v. Harris, 433 F.2d 333, 335

(4th Cir. 1970)).

       Based on the circumstantial evidence in this case, a reasonable fact-finder could conclude

that Foster and Allen agreed to meet the informant in order to sell him cocaine and that Foster’s

part in the conspiracy was neither innocent nor inadvertent. On two separate occasions Foster

drove Allen to the same parking lot where Allen made a quick transaction with the informant,

who had purchased drugs from Allen in the past. On the second occasion, Foster backed into the

parking space adjacent to the informant’s truck. Foster did not get out of the car on either

occasion, and Allen conducted no other business at the shopping center aside from his brief

business with the informant. Significantly, the informant had purchased drugs from Allen in

Foster’s presence prior to these dates of offense.

       The trial court was allowed to draw reasonable inferences from the evidence presented

that Foster knew she was driving Allen, her boyfriend and the father of her son, to make a drug

transaction, that her role as the driver was to make an efficient exit from the scene of the

transaction, and that she would benefit financially from the transaction. Furthermore, the fact

that Foster drove Allen to a Papa John’s parking lot unfamiliar to them on two isolated occasions

to meet the informant who had purchased drugs in front of Foster in the past, could lead a

reasonable fact-finder to conclude that Foster agreed with Allen to distribute drugs to the

informant.

       The trial court was entitled to disbelieve Foster’s story that she thought Allen was

collecting a paycheck from the informant, as the informant had not run his business in a year and

a half, Allen had not worked for him in about three years, and the informant always paid Allen

for his work at the end of the workday. See Staton v. Commonwealth, 36 Va. App. 282, 289,

549 S.E.2d 627, 630 (2001) (“‘[T]he fact finder is entitled to disbelieve the self-serving

                                                -6-
testimony of the accused and to conclude that the accused is lying to conceal his guilt.’”

(quoting Marable v. Commonwealth, 27 Va. App. 505, 509-10, 500 S.E.2d 233, 235 (1998))).

                                       III. CONCLUSION

       The circumstantial evidence supports Foster’s convictions. Accordingly, we affirm the

judgment of the trial court.

                                                                                         Affirmed.




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