                     COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Clements and Agee
Argued at Richmond, Virginia


TRISHA DAWN ARNOLD
                                         MEMORANDUM OPINION * BY
v.   Record No. 2929-00-2             JUDGE JEAN HARRISON CLEMENTS
                                              MARCH 5, 2002
COMMONWEALTH OF VIRGINIA


       FROM THE CIRCUIT COURT OF THE CITY OF FREDERICKSBURG
                    John W. Scott, Jr., Judge

          Mark A. Murphy (Mark A. Murphy & Associates,
          on brief), for appellant.

          Virginia B. Theisen, Assistant Attorney
          General (Randolph A. Beales, Attorney
          General, on brief), for appellee.


     Trisha Dawn Arnold was convicted in a bench trial of being an

accessory before the fact to possession of cocaine with intent to

distribute, in violation of Code §§ 18.2-248 and 18.2-18 .    On

appeal, she contends (1) the evidence was not sufficient to

sustain the conviction and (2) the trial court erred in admitting

into evidence an unsigned, undated handwritten note found in the

home she shared with the principal, Thomas Payne.   Finding the

evidence insufficient to convict Arnold, we reverse her conviction

and dismiss the indictment.




     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
     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 other incidents

of the proceedings as necessary to the parties' understanding of

the disposition of this appeal.

     When the sufficiency of the evidence is challenged on appeal,

we review the evidence "in the light most favorable to the

Commonwealth, granting to it all reasonable inferences fairly

deducible therefrom."   Bright v. Commonwealth, 4 Va. App. 248,

250, 356 S.E.2d 443, 444 (1997).   We will not disturb a conviction

unless it is plainly wrong or unsupported by the evidence.

Sutphin v Commonwealth, 1 Va. App. 241, 243, 337 S.E.2d 897, 898

(1985).

     Our Supreme Court has consistently defined an "accessory" as

"'one not present at the commission of the offense, but who is in

some way concerned therein, either before or after, as [a]

contriver, instigator or adviser, or as a receiver or protector of

the perpetrator.'"   McGhee v. Commonwealth, 221 Va. 422, 425, 270

S.E.2d 729, 731 (1980) (alteration in original) (quoting Tolley v.

Commonwealth, 216 Va. 341, 348, 218 S.E.2d 550, 555 (1975)).

Thus, for Arnold to be convicted as an accessory before the fact

to possession of cocaine with intent to distribute, the

Commonwealth had to prove beyond a reasonable doubt (1) that the

crime of possession of cocaine with intent to distribute was

committed, (2) that Arnold was absent at the commission of the

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crime, and (3) "that, before the commission of the crime, [Arnold]

was 'in some way concerned therein . . . as [a] contriver,

instigator or advisor.'"    Id. at 425-26, 270 S.E.2d at 731

(quoting Tolley, 216 Va. at 348, 218 S.E.2d at 555).

        The evidence presented in this case established that,

commencing at approximately 8:30 p.m. on June 1, 2000, Detective

Lynch conducted surveillance of the residence of Payne and Arnold.

During the approximately one-and-a-half-hour-long surveillance,

Lynch observed Payne outside the house working on a motorcycle and

"racing it up and down the street."      On three separate occasions,

a vehicle pulled up in front of the house.     Each time, Payne

talked to the occupant of the vehicle, entered the residence,

reemerged a short time later, and exchanged with the occupant of

the vehicle "a small item for another small item."     The driver

then drove off.    Each incident lasted "no more than a minute or

two."    Lynch could not identify the items exchanged by Payne and

the occupants of the vehicles.    At one point during the

surveillance, Lynch saw Arnold standing at the front door of the

residence but could not say whether it was when any of the

exchanges involving Payne occurred.

        Following the surveillance, Lynch and two other detectives

entered the house and executed a search warrant at 10:19 p.m.       The

detectives discovered that Arnold was the only one at home.       The

detectives explained to Arnold that they were there because they

"knew there were drugs being sold out of the home."     Arnold told

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the detectives that she and Payne had been "boyfriend and

girlfriend" for two years and that they had been living in the

house where the search warrant was executed for two months.   She

also volunteered that "Payne kept cocaine in the flour canister in

the kitchen."    The detectives found cocaine in a canister on the

kitchen counter.    They also found two thousand dollars in plain

view on a television stand in the living room, a scale "commonly

used to weigh illegal controlled substances" on the kitchen

counter, plastic sandwich bags in a kitchen cabinet, a bag of

cocaine inside a hole in the wall of a shed attached to the house,

nine hundred fifty-seven dollars in a hole in a lamp in the master

bedroom, a shoulder holster, rifle, and bullets in a downstairs

closet, ammunition for .22 and .25 caliber weapons in the master

bedroom closet, and an unsigned, undated handwritten note in a

dresser drawer in the master bedroom that read, in part, "I hate

the fact that [Thomas] sells . . . ."

     The Commonwealth indicted and tried Arnold for having been in

possession of cocaine on June 1, 2000, with the intent to

distribute it.   However, the trial court, finding that the

evidence was insufficient to convict Arnold of that charge,

convicted her instead of having been an accessory before the fact

to possession of cocaine with intent to distribute.

     The Commonwealth's evidence upon which Arnold's conviction

was based spanned the period of time on June 1, 2000, between the

beginning of Detective Lynch's surveillance and the completion of

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the detectives' execution of the search warrant.   Detective Lynch

saw Arnold in the residence during his surveillance, and the

detectives found Arnold in the residence when they entered the

house and executed the search warrant.   Consequently, we find that

the Commonwealth's evidence, even when viewed in the light most

favorable to the Commonwealth, failed to prove beyond a reasonable

doubt that Arnold was absent during the commission of the crime,

as required to convict her as an accessory before the fact.    Thus,

we hold that the evidence presented at trial was insufficient, as

a matter of law, to sustain Arnold's conviction.

     Accordingly, we reverse Arnold's conviction and dismiss the

indictment. 1

                                         Reversed and dismissed.




     1
       Because we reverse Arnold's conviction on the basis of
insufficient evidence, we do not address her second assignment
of error.

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