                                             COURT OF APPEALS OF VIRGINIA


              Present: Judges Humphreys, O’Brien and Malveaux
UNPUBLISHED


              Argued at Richmond, Virginia


              BRANDO CLIFTON CARTER, S/K/A
               BRANDO SCOTT CARTER
                                                                           MEMORANDUM OPINION* BY
              v.     Record No. 1445-15-2                               JUDGE MARY BENNETT MALVEAUX
                                                                                 JULY 12, 2016
              COMMONWEALTH OF VIRGINIA


                               FROM THE CIRCUIT COURT OF PRINCE GEORGE COUNTY
                                               Nathan C. Lee, Judge

                               Eric J. Livingston (Livingston and Walsh, PLCC, on brief), for
                               appellant.

                               Craig W. Stallard, Assistant Attorney General (Mark. R. Herring,
                               Attorney General, on brief), for appellee.


                     Brando Clifton Carter appeals his conviction of conspiracy to possess with intent to

              distribute cocaine, in violation of Code §§ 18.2-248 and 18.2-256. He argues the evidence was

              insufficient to support his conviction because the Commonwealth failed to prove there was any

              agreement, either express or implied, between appellant and any other person to possess cocaine

              with intent to distribute it. For the reasons that follow, we agree with appellant’s argument and

              reverse his conviction.

                                                       I. BACKGROUND

                     On May 3, 2014, at approximately 1:20 a.m., Officer Shane Richardson of the Prince

              George County Police Department observed a Dodge Charger weaving in and out of its traffic

              lane. Dejuan Roy was driving the vehicle, appellant was the front seat passenger, and Derrick


                     *
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
Williams was in the rear seat behind appellant. When stopped by Officer Richardson, Roy said

his license was suspended and that the Dodge Charger was a “rental car” belonging to the mother

of his child. Richardson placed Roy under arrest for DUI and driving on a suspended license.

Roy told the officer the other passengers were not on the “lease agreement,” and that he was

bringing the car back to his child’s mother.

         After arresting Roy, Richardson asked the two passengers to step out of the vehicle so he

could conduct an inventory search prior to having the vehicle towed. The officer asked each

passenger for consent to search, and both agreed. Richardson found nothing “of note” on

appellant. He found $3,792 in Williams’ left and right front pockets. The money was “divided

by denomination,” meaning it was separated and folded over in subsequent denominations. At

first, Williams told Officer Richardson he “found it inside of the vehicle,” but when asked again

about the money he said, “What if I told you it was mine?” Richardson told Williams he would

have to show evidence of where he got the money. At that point, Williams claimed his girlfriend

had given him the money.

         Officer Richardson searched the vehicle. Inside a “standard glove compartment door”

with an opaque exterior, he found a semi-automatic handgun and a bag containing four small

baggies of a white powdery substance later identified as 20.54 grams of cocaine.

         At trial, Special Agent Jeff Perry of the Virginia State Police was qualified as an expert in

drug distribution. He opined the packaging of the four separate baggies, the amount of cocaine

found, and the presence of a firearm were factors inconsistent with the personal use of illicit

drugs.

         Joslin Foster, Williams’ girlfriend, testified at trial that in January, 2014, she had received

a settlement of nearly $30,000 from a car accident. She stated that on May 1, two days before




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the traffic stop, she gave Williams $4,000 to take care of her children while she was out of town

for several weeks for a work trip. No statements by appellant were entered into evidence at trial.

       The trial court specifically found, regarding the conspiracy charge,

               when you’re reviewing a case and listening to the evidence, often
               there’s just not one single piece of evidence that jumps out. When
               I look at the totality of it and the circumstances, I do find that they
               – that each of them knew the drugs were in the car. And the
               conspiracy in my mind, as I said, they’re each playing an element.
               And one is the driver, one holding the cash, one in control of the
               drugs and the gun . . . .

       The trial court found the appellant guilty of possession with intent to distribute a schedule

I or II controlled substance, conspiracy to possess with intent to distribute a schedule I or II

controlled substance, possession of a firearm while in possession of a schedule I or II controlled

substance, and possession of a firearm by a convicted felon. We review appellant’s conspiracy

conviction on appeal to this Court.1

                                          II. ANALYSIS

       Appellant challenges the sufficiency of the evidence to support his conviction for

conspiracy to possess with intent to distribute a schedule I or II controlled substance. He argues

the evidence was insufficient to prove there was any express or implied agreement between the

appellant and any other person to possess cocaine with the intent to distribute it. Appellant

contends there was no evidence, direct or circumstantial, from which the trial court could infer

an agreement or meeting of the minds between appellant and his co-defendants.

       In our review of the sufficiency of the evidence to support a criminal conviction, we

consider “the evidence in the light most favorable to the Commonwealth.” Kovalaske v.

Commonwealth, 56 Va. App. 224, 226, 692 S.E.2d 641, 643 (2010) (quoting Pryor v.

Commonwealth, 48 Va. App. 1, 4, 628 S.E.2d 47, 48 (2006)). “Viewing the record through this

       1
          Appellant raised additional assignments of error concerning his other convictions. His
petition for appeal was denied on those assignments of error.
                                               -3-
evidentiary prism requires us to 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.” Id. (quoting Cooper v. Commonwealth, 54 Va. App.

558, 562, 680 S.E.2d 361, 362 (2009)). The dispositive question this Court must resolve is

“whether any rational trier of fact could have found the essential elements of the crime beyond a

reasonable doubt.” Anaman v. Commonwealth, 64 Va. App. 379, 394, 768 S.E.2d 700, 708

(2015) (quoting Crowder v. Commonwealth, 41 Va. App. 658, 663, 588 S.E.2d 384, 387 (2003)).

We will affirm the conviction unless the fact finder was “plainly wrong” or the conviction lacked

“evidence to support it.” Kovalaske, 56 Va. App. at 231, 692 S.E.2d at 645 (quoting Bolden v.

Commonwealth, 275 Va. 144, 148, 654 S.E.2d 584, 586 (2008)).

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

concerted action to commit an offense.’” Cartwright v. Commonwealth, 223 Va. 368, 372, 288

S.E.2d 491, 493 (1982) (quoting Falden v. Commonwealth, 167 Va. 542, 544, 189 S.E. 326, 327

(1937)). “A conspiracy is committed when the agreement to commit the offense is complete[,]

regardless [of] whether any overt act in furtherance of commission of the substantive offense is

initiated.” Ramsey v. Commonwealth, 2 Va. App. 265, 270, 343 S.E.2d 465, 469 (1986).

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

a reasonable doubt that an agreement existed.” Feigley v. Commonwealth, 16 Va. App. 717,

722, 432 S.E.2d 520, 524 (1993) (quoting Floyd v. Commonwealth, 219 Va. 575, 580, 249

S.E.2d 171, 174 (1978)). “Nevertheless, a conspiracy may be proved by circumstantial

evidence.” Floyd, 219 Va. at 580, 249 S.E.2d at 174. “Indeed, from the very nature of the

offense, it often may be established only by indirect and circumstantial evidence.” Id. Thus,

“[p]roof of an explicit agreement is not required.” Combs v. Commonwealth, 30 Va. App. 778,

787, 520 S.E.2d 388, 392 (1999). Rather, “conspiracy may be inferred from the overt actions of

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the parties, and a common purpose and plan may be inferred from a development and collocation

of circumstances.” Id. at 787, 520 S.E.2d at 392-93 (quoting McQuinn v. Commonwealth, 19

Va. App. 418, 425, 451 S.E.2d 704, 708 (1994)).

       Here, the evidence, in the light most favorable to the Commonwealth, established three

people were in a Dodge Charger that was stopped for suspicion of DUI. The glove box, which

was described as “standard,” contained a firearm and 20.54 grams of cocaine in four baggies.

Williams, the car’s rear passenger, possessed over $3,700 in cash, divided by denominations. He

gave police inconsistent statements about the money’s source, first stating he found it inside the

vehicle and later saying his girlfriend gave it to him. After reviewing the totality of the

circumstances, the trial court found, as a matter of fact, that all three people in the car were

aware of the presence of the cocaine. The trial court then made the inference that, “they’re

playing an element. And one is the driver, one holding the cash, one in control of the drugs and

the gun.”

       In Virginia, when “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 [fact-finder] will be justified in concluding that they were

engaged in a conspiracy to effect that object.’” Brown v. Commonwealth, 10 Va. App. 73, 78,

390 S.E.2d 386, 388 (1990) (quoting Amato v. Commonwealth, 3 Va. App. 544, 552, 352 S.E.2d

4, 9 (1987)). The trial court relied on this principle in concluding that appellant was conspiring

with at least one other person to possess cocaine with intent to distribute it. Here, however,

appellant was not “performing one part” at all; he was merely the front seat passenger of the

vehicle. He committed no “acts” by which he could have pursued the same object as the other

individuals in the vehicle. Prior cases applying this principle all make clear this distinction; the

actions of the defendant must point to “one performing one part and the other performing

                                                 -5-
another part so as to complete it or with a view to its attainment.” See Merritt v.

Commonwealth, 57 Va. App. 542, 558, 704 S.E.2d 158, 166-67 (2011) (en banc) (finding

sufficient evidence of conspiracy to possess where evidence, including defendant’s unusual

actions at a bus station, proved he served as the “muscle” or “lookout” as drugs were transported

for the purpose of further distribution); Charity v. Commonwealth, 49 Va. App. 581, 586-87, 643

S.E.2d 503, 505-06 (2007) (finding sufficient evidence of conspiracy to escape from prison

where, despite no evidence of any conversation, appellant and another inmate ran toward a truck,

and appellant pushed the driver to the ground and jumped into the driver’s seat alongside the

other inmate).

       Additionally, prior cases upholding conspiracy convictions contain numerous factors that

are absent here. Roy and Williams did not testify at trial, nor made any statements at the scene

regarding the cocaine or any possible agreement between the parties. See Anderson v.

Commonwealth, 52 Va. App. 501, 509, 664 S.E.2d 514, 518 (2008), aff’d, 278 Va. 419, 683

S.E.2d 536 (2009) (finding sufficient evidence of conspiracy where co-conspirator’s testimony

established an explicit agreement to carry out a larceny). Appellant also did not testify at trial,

nor were any of his statements admitted into evidence. See Edwards v. Commonwealth, 18

Va. App. 45, 48-49, 441 S.E.2d 351, 353-54 (1994) (finding sufficient evidence of conspiracy to

possess a controlled substance with the intent to distribute based on defendant’s statement that he

knew what the other buyer was “going to make off that”). There were no “owe sheets” present

in the vehicle or on any of the individuals’ persons indicating an agreement between them to

distribute the cocaine. See Merritt, 57 Va. App. at 556, 704 S.E.2d at 165 (2011) (finding that

evidence of defendant’s nickname in a “drug notebook” in possession of co-conspirator was a

factor supporting conspiracy conviction). Additionally, appellant’s mere proximity to the

weapon and the drugs is not enough alone to show a shared criminal intent. See, e.g., Jones v.

                                                -6-
Commonwealth, 208 Va. 370, 373-74, 157 S.E.2d 907, 909-10 (1967) (noting, in an analysis

under the “shared criminal intent” standard for aiding and abetting, the principle that a

defendant’s presence and consent during a crime cannot, without more, constitute a commonality

of intent). Nor is the presence of a large sum of cash on one of the occupants sufficient to

impute knowledge of an agreement. “[T]he existence of intent cannot be based upon speculation

or surmise.” Adkins v. Commonwealth, 217 Va. 437, 440, 229 S.E.2d 869, 871 (1976).

       The trial court concluded that there was evidence of conspiracy between the occupants of

the vehicle because appellant was “the one in control of the drugs and the gun” in their joint

effort to distribute cocaine. Appellant, as the front seat passenger of the car, was near the

cocaine located in the glove box. However, this proximity alone does not establish that he

actually possessed the cocaine. While proximity is a factor that may be considered in

determining whether the accused possessed illegal drugs, “[m]ere proximity to [a] controlled

substance is not enough to establish possession.” Peterson v. Commonwealth, 5 Va. App. 389,

402, 363 S.E.2d 440, 448 (1987). Appellant’s location in the car, without more, is insufficient to

prove that he possessed the cocaine. His position as the front seat passenger did not establish

that he was “in control” of the cocaine in the glove box; therefore, it also did not support the trial

court’s finding that he had agreed to conspire with the other occupants of the vehicle to possess a

controlled substance with the intent to distribute it.

       Here, the evidence, in its totality, fails to demonstrate anything beyond the fact that

appellant was the front seat passenger in a car containing cocaine in the glove box, packaged into

small baggies indicating distribution, with another occupant having over $3,000 in divided

denominations. The record is devoid of any statements or actions to support a finding that there

was an agreement between appellant and any other person. On appeal, this Court considers

cases challenging the sufficiency of the evidence under a standard of review that is difficult to

                                                 -7-
satisfy. We presume the judgment of the trial court to be correct and will reverse only if the trial

court’s decision is plainly wrong or without evidence to support it, and will not overturn a

conviction on appeal unless no “rational trier of fact” could have reached that conclusion. With

this standard in mind, there is simply no evidence in the record to support the trial court’s

inference that appellant was “the one in control of the drugs and the gun” in a conspiracy

involving the other persons in the Dodge Charger. Due to a lack of any evidence establishing an

agreement between the occupants of the vehicle, the evidence was insufficient as a matter of law

to establish a conspiracy to possess with the intent to distribute cocaine.

                                        III. CONCLUSION

       The evidence at trial was insufficient to prove appellant agreed to distribute cocaine with

any other individual. For this reason, we reverse appellant’s conviction for conspiracy and

dismiss the indictment.

                                                                              Reversed and dismissed.




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