Note: Decisions of a three-justice panel are not to be considered as precedent before any tribunal.


                                           ENTRY ORDER

                           SUPREME COURT DOCKET NO. 2010-173

                                       JANUARY TERM, 2011

 State of Vermont                                      }    APPEALED FROM:
                                                       }
    v.                                                 }    District Court of Vermont,
                                                       }    Unit No. 2, Rutland Circuit
                                                       }
 Aaron Todd                                            }    DOCKET NO. 1450-9-08 Rdcr

                                                            Trial Judge: Thomas A. Zonay

                          In the above-entitled cause, the Clerk will enter:

       Defendant appeals from his conviction of conspiracy to dispense cocaine. He argues that
there was insufficient evidence to establish his guilt. We conclude that defendant waived this
argument, and we therefore affirm.

         Defendant was charged with conspiracy to dispense cocaine based on allegations that he
received crack cocaine in exchange for allowing several individuals to live with him and sell
cocaine from his residence. See 13 V.S.A. § 1404(a) (“A person is guilty of conspiracy if, with
the purpose that an offense [including sale or distribution of a regulated drug] be committed, that
person agrees with one or more persons to commit or cause the commission of that offense, and
at least two of the co-conspirators are persons who are neither law enforcement officials acting in
official capacity nor persons acting in cooperation with a law enforcement official.”). More
specifically, the information alleged that defendant, with the purpose that the offense of
dispensing regulated drug, sale of cocaine, 18 V.S.A. § 4231(b)(1), be committed, agreed with
one or more persons to cause the commission of dispensing regulated drug, and that defendant
committed the overt act of accepting pieces of crack cocaine as payment for allowing these
individuals to stay at his residence from which these individuals sold cocaine in violation of 13
V.S.A. §§ 1404 and 1409.

        At trial, the State offered testimony from several police officers who conducted a drug
raid at defendant’s trailer. Defendant also provided statements to police identifying the men that
were staying with him, indicating that these individuals were selling crack at the residence, and
that they provided him with one to two rocks of cocaine each day for staying at the residence. At
the close of the State’s case, defendant moved for a judgment of acquittal. The court denied the
motion, finding the evidence sufficient to support the charge. Among other evidence, the court
cited the defendant’s admission that he received crack cocaine for allowing the individuals to
stay with him so that they could sell drugs.

      Defendant presented one witness on his own behalf. He did not renew his motion for
judgment of acquittal at the close of all of the evidence, nor did he file a post-verdict motion for
acquittal within ten days of the jury’s guilty verdict. See V.R.Cr.P. 29(a), (c). By failing to do
so, he waived any argument on appeal regarding the sufficiency of the evidence. See Reporter’s
Notes, V.R.Cr.P. 29 (failure to move for acquittal or to renew motion at close of all evidence
“forecloses appellate consideration of all issues of sufficiency of the evidence”); State v. Norton,
139 Vt. 532, 534 (1981) (reiterating that where defendant fails to challenge sufficiency of the
evidence at the end of the trial by a motion under the rule for judgment of acquittal, issue is not
preserved for appellate review, and “[t]his is true even when the defendant moves for acquittal
after the State’s case, but fails to renew the motion at the end of the defendant’s case”), overruled
on other grounds by State v. Brooks, 163 Vt. 245 (1995).

        Defendant nonetheless asserts that the court committed plain error in failing to move for
acquittal on its own motion. See V.R.Cr.P. 29(a). Specifically, he argues that there was
insufficient evidence to establish an overt act as required under 13 V.S.A. § 1404(b).

        As the court instructed the jury, the essential elements of the charged crime were that: (1)
defendant; (2) willfully agreed to enter into a conspiracy with one or more persons to commit the
offense of dispensing a regulated drug; (3) defendant joined in the conspiracy with the purpose
of committing the offense of dispensing a regulated drug; (4) defendant and at least one other
coconspirator were not law enforcement officials or acting in collaboration with law enforcement
officials; and (5) after defendant joined the conspiracy, either defendant or a conspirator
performed a substantial overt act in furtherance of the conspiracy. The court recognized that the
State did not need to prove that there was an express agreement between the parties, but rather,
the agreement could consist of a mutual understanding that the members would commit some
illegal activity by means of a common plan or a course of action. See, e.g., People v. Longines,
40 Cal.Rptr.2d 356, 358-59 (Cal.App. 1995) (“ [A] conspiracy may be shown by circumstantial
evidence and the agreement may be inferred from the conduct of the defendants mutually
carrying out a common purpose in violation of a penal statute.” (quotation omitted)).

       Title 13 V.S.A. § 1404(b) provides that:

               [n]o person shall be convicted of conspiracy unless a substantial
               overt act in furtherance of the conspiracy is alleged and proved to
               have been done by the defendant or by a co-conspirator, other than
               a law enforcement official acting in an official capacity or a person
               acting in cooperation with a law enforcement official, and
               subsequent to the defendant’s entrance into the conspiracy. Speech
               alone may not constitute an overt act.

According to defendant, his own statement to police was the only evidence showing that he took
the overt step of allowing these individuals to stay with him in exchange for crack cocaine. He
maintains that this evidence is insufficient under the corpus delicti rule, and that his conviction
must therefore be reversed.

        We find no plain error. “The purpose of the corpus delicti rule is to foreclose the
possibility of conviction based on false confession where, in fact, no crime has been committed.”
State v. FitzGerald, 165 Vt. 343, 350 (1996). Where the State’s case is based on a confession,
“the corpus delicti must be corroborated by independent evidence.” Id. Such evidence “need not


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independently prove commission of the crime beyond a reasonable doubt, however; even slight
corroboration may be sufficient.” Id. The question is whether there was adequate corroborating
evidence to show that a crime was committed.

        There was sufficient corroborating evidence here. Aside from defendant’s written and
oral statements about receiving drugs and allowing these individuals to stay with him and sell
drugs from his residence, the record shows that the police found crack cocaine and large amounts
of cash on two of the individuals residing with defendant, including cash from a controlled drug
sale. Crack cocaine was also found in the couch of the residence. The drugs were individually
bagged for sale. Additionally, police found drug paraphernalia, including pipes and spoons, in
defendant’s bedroom. There was also evidence that defendant’s alleged co-conspirators had
travelled to Vermont from out-of-state, defendant allowed these individuals to stay with him,
they were not paying defendant any rent, and they had brought cocaine with them. The evidence
was sufficient to support a logical and reasonable inference that defendant received drugs from
these individuals in exchange for allowing them to stay with him and that the crime of
conspiracy to distribute cocaine was committed. The court did not commit plain error by failing
to sua sponte move for judgment of acquittal on this count based on the corpus delicti rule. See
Norton, 139 Vt. at 534 (“A [trial] court should move for acquittal only when the record reveals
that the evidence is so tenuous that a conviction would be unconscionable”).

       Affirmed.

                                            BY THE COURT:

                                            _______________________________________
                                            Paul L. Reiber, Chief Justice

                                            _______________________________________
                                            Denise R. Johnson, Associate Justice

                                            _______________________________________
                                            Marilyn S. Skoglund, Associate Justice




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