                     COURT OF APPEALS OF VIRGINIA

Present: Judges Bray, Overton and Senior Judge Duff
Argued at Alexandria, Virginia


TERRY JANSEN FORNEY
                                         MEMORANDUM OPINION * BY
v.   Record No. 2107-97-4                 JUDGE CHARLES H. DUFF
                                            DECEMBER 22, 1998
COMMONWEALTH OF VIRGINIA


         FROM THE CIRCUIT COURT OF THE CITY OF WINCHESTER
                    John E. Wetsel, Jr., Judge

          David Rosenblum (Rosenblum & Rosenblum,
          L.L.C., on brief), for appellant.
          Ruth Ann Morken, Assistant Attorney General
          (Mark L. Earley, Attorney General, on brief),
          for appellee.



     Terry Jansen Forney (appellant) was convicted in a jury

trial of conspiracy to distribute marijuana.    He contends that

the evidence was insufficient to support the conviction.    We

agree, reverse and dismiss the conviction.

                                  I.

     Appellant mailed packages of marijuana to Carolyn and

Jeffrey Pinos on numerous occasions between January 1, 1992 and

December 31, 1995.    The packages were delivered by regular mail

and were addressed to Jeffrey Pinos.    The packages, typically

weighing about two pounds, were fourteen to twenty inches in

length, and were one to two feet deep.    Shirley Kerns, the

Pinoses' postal carrier, recalled delivering large packages

addressed to Jeffrey Pinos "every couple of weeks," some of which
     *
      Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
weighed "30 pounds, 25, 30, maybe not that heavy."

        The Pinoses paid appellant for the marijuana in different

ways:    by making large cash payments into two of appellant's

credit card accounts, by sending money directly to appellant, or

by delivering the money to appellant in person.    After receiving

the marijuana, Jeffrey Pinos would weigh and package it for

resale.    The Pinoses sold varying quantities of the marijuana to

several different people.
        On February 22, 1995, Linda Cortez, operator of a

first-class postal business, opened a box addressed to appellant

and discovered a large sum of money rolled and secured with

rubber bands and wrapped in newspaper.    Investigator Thomas

Frazier responded to Cortez's call to the police.    The box, which

contained $7,000 in currency, had been sent to appellant by

Carolyn Pinos.    The Pinoses explained that they sent the money to

pay for a motorcycle.

        The seizure of the $7,000 prompted the execution of a search

warrant at the Pinoses' home, after which Carolyn and Jeffrey

Pinos were arrested.

                                  II.

        When considering the sufficiency of the evidence on appeal

in a criminal case, we view the evidence in the light most

favorable to the Commonwealth, granting to it all reasonable

inferences fairly deducible therefrom.     See Higginbotham v.
Commonwealth, 216 Va. 349, 353, 218 S.E.2d 534, 537 (1975).      In




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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 and all fair inferences.

See Cirios v. Commonwealth, 7 Va. App. 292, 295, 373 S.E.2d 164,

165 (1988).   The credibility of the witnesses, the weight

accorded to testimony, and the inferences to be drawn from the

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 trial court's judgment will not be set aside

unless the judgment is plainly wrong or without evidence to

support it.    See Josephs v. Commonwealth, 10 Va. App. 87, 99, 390

S.E.2d 491, 497 (1990) (en banc).

       A conspiracy is an agreement between two or more persons to

commit an offense by some concerted action.        See Zuniga v.

Commonwealth, 7 Va. App. 523, 527, 375 S.E.2d 381, 384 (1988).

"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. (quoting United States v. Peterson, 524 F.2d

167, 174 (4th Cir. 1975)).    "The agreement is the essence of the

conspiracy offense."    Id.   A single buyer-seller relationship

does not constitute a conspiracy.        See id. at 528, 375 S.E.2d at

385.

       The existence of a conspiracy is proved if "the evidence



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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].'"   Id. at 529,

375 S.E.2d at 385 (quoting Direct Sales Co. v. United States, 319

U.S. 703, 711 (1943)).

     Viewing the evidence in the light most favorable to the

Commonwealth, the evidence failed to meet this two-part test.

First, no direct evidence proved that appellant knew of the

Pinoses' intended illegal use of distributing the marijuana to

third parties after they purchased it from appellant.   The

evidence showed that Carolyn and Jeffrey Pinos bought marijuana

from appellant regularly and that they personally used marijuana

heavily.   When appellant visited them, he would bring marijuana

in his backpack and share it with them.   There was no evidence

that appellant ever saw the Pinoses package the marijuana for

resale, or that appellant saw anything that would indicate that

the Pinoses were reselling the marijuana.
     Assuming, without deciding, that the ongoing relationship

between the parties and the quantity of marijuana shipped would

support an inference that appellant knew, or should have known,

that the Pinoses were not consuming all of the contraband, that

does not end our inquiry.   There was insufficient evidence to

satisfy the second prong of the Zuniga test, that by the sale,

appellant intended to further, promote and cooperate in the

venture.   The evidence showed that appellant sent marijuana to



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the Pinoses, that the Pinoses paid him for the marijuana, and

that occasionally, the Pinoses would "make a payment" when

appellant needed money.    There was no evidence that appellant and

the Pinoses had prearranged that they would distribute marijuana,

or that appellant had any interest in the success of the Pinoses'

resale of the marijuana.

     Apropos to the present issue is the case of Hudak v.

Commonwealth, 19 Va. App. 260, 450 S.E.2d 769 (1994), where we

reversed a conviction of conspiracy to distribute LSD.    Susan

Hudak sold the drug to Scott Short through the mail.   The

relationship continued for more than twelve months.    On one

occasion, 2,000 hits of LSD were sent to Short.   After holding

that expert testimony was necessary to show that the quantity was

beyond that needed for Short's personal use, we noted:
          Neither the ongoing relationship between
          appellant and Short, nor the extension of
          credit from Short to appellant, provided
          sufficient evidence with which the jury could
          have reasonably concluded that a conspiracy
          to distribute existed. The transactions
          between appellant and Short simply lacked
          "the essential element of an agreement
          between the two parties to commit a
          subsequent distribution offense together."
          Feigley [v. Commonwealth], 16 Va. App. [717]
          at 722, 432 S.E.2d [520] at 524 [(1993)].

Hudak, 19 Va. App. at 263, 450 S.E.2d at 771.


     While the evidence in this case provides the basis for

reasonable suspicion, it is not sufficient to establish the

existence of a conspiracy beyond a reasonable doubt.

Accordingly, the conviction is reversed and dismissed.



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        Reversed and dismissed.




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