                     COURT OF APPEALS OF VIRGINIA


Present:   Chief Judge Fitzpatrick, Judges Bray and Annunziata


ARMANDO GONZALES-LOYA
                                           MEMORANDUM OPINION * BY
v.   Record No. 1670-99-4                   JUDGE RICHARD S. BRAY
                                                JUNE 20, 2000
COMMONWEALTH OF VIRGINIA


              FROM THE CIRCUIT COURT OF SHENANDOAH COUNTY
                   H. Selwyn Smith, Judge Designate

           (Barry D. Murphy, on brief), for appellant.
           Appellant submitting on brief.

           (Mark L. Earley, Attorney General;
           Virginia B. Theisen, Assistant Attorney
           General, on brief), for appellee. Appellee
           submitting on brief.


     Armando Gonzales-Loya (defendant) was convicted in a bench

trial of conspiracy to distribute cocaine in violation of Code

§ 18.2-256.    On appeal, he challenges the sufficiency of the

evidence to support the conviction.    Finding the evidence

sufficient, we affirm the trial court.

     The parties are fully conversant with the record, and this

memorandum opinion recites only those facts necessary to a

disposition of the appeal.




     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
                                   I.

     In reviewing the sufficiency of the evidence, we consider

the record "'in the light most favorable to the Commonwealth,

giving it all reasonable inferences fairly deducible therefrom.

In so doing, we 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 . . . .'"

Watkins v. Commonwealth, 26 Va. App. 335, 348, 404 S.E.2d 856,

866 (1998) (citation omitted).     The credibility of the

witnesses, the weight accorded testimony, and the inferences to

be drawn from proven facts are matters to be determined by the

fact finder.   See Long v. Commonwealth, 8 Va. App. 194, 199, 379

S.E.2d 473, 476 (1989).   The judgment of the trial court will

not be set aside unless plainly wrong or unsupported by the

evidence.   See Code § 8.01-680.

     Viewed accordingly, the instant record discloses that, in

early December, 1998, Amy Sue Burker accompanied her sister,

Tammy Turner, to the "Blue Ridge Motel" in Shenandoah County.

Upon arrival, Turner, then in possession of $1,100 in cash,

entered a room at the motel.   Turner soon exited, advised Burker

"it was okay to come in," and the sisters joined defendant,

"Lolo," in the room.   Burker was unacquainted with Lolo, but

knew this "was not [Turner's] first meeting" with him.

     Following undisclosed discussion among the three, "a

telephone call was made" by defendant and, "half an hour" later,

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an unidentified "gentleman" arrived at the room.   Turner and the

man immediately "went into the bathroom," "had conversation"

during which "the money was exchanged," and returned after "five

minutes, tops."   Turner and defendant then discussed "drugs

. . . she had given" defendant, and related money he was "to

give to her, to give to this other gentleman."   After defendant

assured Turner "he had taken care of it," the sisters departed

the motel, with Turner in possession of a "plastic baggie"

containing "a rock of a white powder substance," and no money.

     Later in December, Burker and Turner returned to the motel.

On this occasion, Burker remained "outside" while Turner

"dropped off" an undisclosed amount of money and "[g]ot more of

the white powder substance in the baggie." 1

     On December 7, 1998, Burker contacted Deputy Sheriff

Alfred J. Buynar to discuss her "sister and drugs."   Buynar

contacted law enforcement officers involved with the "Northwest

Regional Drug Task Force" and arranged a joint meeting with

Burker.   The officers suggested Burker "wear [a] wire" and

deliver $1,400 "marked money" to defendant at the motel room to

"pay off [her] sister's debt" "for something that had already

been fronted."    Burker agreed, was provided the necessary

equipment and cash, and proceeded to the Blue Ridge Motel to

contact defendant.


     1
       Burker identified the "substance" repeatedly referenced in
the record as "coke," "a drug," an "illegal substance."

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     When Burker entered the motel room, defendant was present,

together with a man identified only as "Valbosa" or

"Villalobos," unable to "speak English."     Burker asked defendant

"how much [her] sister owed."   When defendant purportedly

"translate[d]" Burker's comments for the other man, the man

"picked up" "some kind of electronic device," spoke "back and

forth" with defendant, and defendant reported to Burker that her

sister "owed $1,700."   Burker then paid defendant the police

funds and requested that he "front" some "[c]oke" to her.     In

response, defendant explained, "they didn't have none.     That

they were waiting on [Turner's] money."     However, he instructed

Burker to "call the next day, at twelve o'clock, and [she] could

arrange a time for the next night, to come over and get the

powder substance."

     As a result of Burker's undercover activity, a search

warrant was obtained and executed at the motel room, still

occupied by defendant and the man.      During the attendant search,

the officers seized "a little digital scale," with cocaine

residue, from beneath a bed, "a box of sandwich bags," "a two

hundred-gram weight," a notepad containing a "list of . . .

numbers," and "two twenty dollar phone cards," items which

Investigator David Paul Mason of the drug task force described,

without objection, as common to "drug dealers."     The "marked"

currency was found under a refrigerator.



                                - 4 -
     During the search, Mason answered the telephone on five

occasions, with each caller asking to speak with "Tony or Lolo."

Responding in a voice disguised "to sound like a Mexican," Mason

advised, "they were not [here], that they would be back in an

hour" and "ask them if they were looking."   The callers "would

say yes or no, or whatever," and several indicated "that they

would come to the hotel room."    "[A] total of six people came to

the room that night and early morning while [they] were doing

the search warrant," including Courtland Lee Polk, III, and

James Robert Clark, III.

     Polk and Clark testified that they came to the motel in the

early morning of December 8, 1998, after first telephoning,

intending to purchase "[t]hree and a half grams of cocaine" for

$200 from defendant.   The two men had engaged in a like

transaction with defendant during the previous week, also at the

motel.   Each acknowledged the powder gave them a "buzz," and

Clark, an admitted user of cocaine for "about four years,"

recalled that the "powder" previously purchased from defendant

produced "the same results" as "coke."

                                  II.

     "A conspiracy is 'an agreement between two or more persons

by some concerted action to commit an offense.'"    Smith v.

Commonwealth, 19 Va. App. 594, 598, 453 S.E.2d 572, 575 (1995)

(citations omitted).   "There can be no conspiracy without an

agreement, and the Commonwealth must prove beyond a reasonable

                                 - 5 -
doubt that an agreement existed."        Floyd v. Commonwealth, 219

Va. 575, 580, 249 S.E.2d 171, 174 (1978) (citation omitted).

Thus, "[i]n 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.'"     Zuniga v. Commonwealth, 7 Va. App. 523, 527,

375 S.E.2d 381, 384 (1988) (citation omitted).       However,

"[p]roof of an explicit agreement is not required" but "may, and

frequently must, rely on circumstantial evidence," inferences

drawn from "'overt actions'" and a "'collocation of

circumstances,'" which evince agreement upon a "'common purpose

and plan.'"     Combs v. Commonwealth, 30 Va. App. 778, 787, 520

S.E.2d 388, 392 (1999) (citation omitted).

     "As a general rule a single buyer-seller relationship,

standing alone, does not constitute a conspiracy."        Zuniga, 7

Va. App. at 528, 375 S.E.2d at 385.       "If, however, 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."     Id. at 529, 375 S.E.2d at 385 (citation

omitted).   Or, "if two or more people agree in advance to act in

concert to sell drugs, where [for example] one serves as the

supplier and the other as the 'runner,' an agreement to

                                 - 6 -
distribute drugs exists and a conspiracy has been proven."

Feigley v. Commonwealth, 16 Va. App. 717, 723, 432 S.E.2d 520,

524 (1993).

     Here, the evidence sufficiently established a conspiracy

between sellers to distribute cocaine to Turner, Burker and

others.   The initial encounter between the sisters and

defendant, during which defendant summoned an unidentified man

to the room to facilitate a sale of cocaine to Turner, together

with related conversation, clearly established an agreement

between the two men to distribute the drug.    Burker's final

contact with defendant, coordinated with police, provided

further proof that defendant and another shared an interest in

Turner's debt for cocaine previously purchased from defendant.

Moreover, when Burker asked defendant to "front her" cocaine,

his response that "they didn't have none" because "they were

waiting on Turner's money" to re-supply clearly reflected

agreement, preconcert and connivance with others.   (Emphasis

added.)   Such circumstances, aided by the presence of

paraphernalia usual in drug trade and the numerous contacts at

the motel room by persons seeking to purchase cocaine,

sufficiently supports the finding of a conspiracy between

defendant and another to distribute the drug.

     Accordingly, we affirm the trial court.

                                                    Affirmed.



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