                    COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Elder and Overton
Argued at Richmond, Virginia


MILTON GAITHER
                                          MEMORANDUM OPINION * BY
v.   Record No. 0610-96-2               JUDGE JAMES W. BENTON, JR.
                                              JUNE 24, 1997
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF THE CITY OF PETERSBURG
                    James F. D'Alton, Jr., Judge
           Mary Katherine Martin, Senior Assistant
           Public Defender, for appellant.

           Daniel J. Munroe, Assistant Attorney General
           (James S. Gilmore, III, Attorney General, on
           brief), for appellee.



      Milton Gaither was convicted on charges of conspiracy to

distribute cocaine, see Code § 18.2-256, and attempted possession

of cocaine with intent to distribute.    See Code § 18.2-248.    He

contends that the evidence was insufficient to sustain the

convictions.   We agree and reverse the convictions.

                                 I.

      The evidence proved that Detective David E. Hamilton

received information on November 18, 1993 about a package that

would be arriving at the Greyhound Bus Station in the City of

Petersburg in the name of Milton Gaither.   After the detective

found a package at the station addressed to Gaither, a dog

trained to detect narcotics "alerted" on the package.     The

      *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
detective then obtained a search warrant, searched the package,

and found men's clothing inside the package.    Inside the pockets

of an item of clothing, the detective found bags containing an

off-white, chunky substance.   The substance was found to be 71

grams of cocaine.

     The detective removed the cocaine, resealed the package, and

returned the package to the bus station.    The detective and other

officers waited for Gaither to arrive for the package.    That same

day, one of the officers saw Gaither in the bus station standing

near the counter where tickets could be purchased and packages

could be retrieved.   Gaither walked away from the counter and

exited the station.
     The next day, Gaither entered the bus station, signed for

the package, and walked out of the station with the package.     As

he was walking away from the station, Gaither gave the package to

a man who was walking with him.   A police officer arrested

Gaither and read him Miranda warnings.     After signing a waiver

form, Gaither wrote the following:
          I met them when I got out of jail. They was
          in my cousin['s] room, so I ask[ed] them who
          they were. He said his name was Junie and
          Steve. We talk[ed], then one day he said he
          would [send] me a package. The first two
          times I pick[ed] it up, I thought nothing of
          it. Then I suspect[ed] it might be drug[s]
          . . . , then it was too late. I call[ed] my
          mother and she told me Sharon Booker took
          them in Blandford somewhere. He called his
          girlfriend Malisa and she told him that the
          package were there. Then he told me to go
          and pick it up.




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     At the close of the Commonwealth's case, Gaither made a

motion to strike and argued that (1) the evidence was

insufficient to prove possession of cocaine because the cocaine

had been removed before Gaither obtained the box, (2) the

evidence was insufficient to prove Gaither knew drugs were inside

the box, and (3) the evidence was insufficient to show a

conspiracy because the Commonwealth failed to prove an agreement

between Gaither and another individual.   The trial judge

sustained, in part, the motion on the possession charge and ruled

that the evidence did not prove an offense greater than an

attempt to possess cocaine with an intent to distribute.    The

judge overruled the other grounds for the motion.   When Gaither

did not present evidence on his own behalf, the trial judge

convicted Gaither of attempted possession of cocaine with intent

to distribute and conspiracy to distribute cocaine.
                               II.

     To prove a conspiracy, the Commonwealth was required to

prove that an agreement existed and that the parties shared an

intent to achieve a certain objective.    See Fortune v.

Commonwealth, 12 Va. App. 643, 647, 406 S.E.2d 47, 48 (1991).

Although the Commonwealth may prove an agreement through

circumstantial evidence, the principle is well established that

when evidence as to an element of an offense is wholly

circumstantial, "all necessary circumstances proved must be

consistent with guilt and inconsistent with innocence and exclude




                              - 3 -
every reasonable hypothesis of innocence."   Inge v. Commonwealth,

217 Va. 360, 366, 228 S.E.2d 563, 567 (1976).

     The Commonwealth's evidence merely showed that Gaither

agreed to pick up the package at the bus station, that he picked

up the package, that he suspected drugs, and that the package

contained a large quantity of cocaine.   No evidence proved that

Gaither agreed to distribute cocaine or that Gaither was aware of

the nature of the contents of the package.   No evidence proved

that Gaither had opened that package or any other package.
     "In order to convict [Gaither] of conspiring . . . to

distribute a controlled drug, the Commonwealth had to prove

beyond a reasonable doubt that an agreement existed . . . between

[Gaither and another] by some concerted action to distribute the

drugs."   Reed v. Commonwealth, 213 Va. 593, 594, 194 S.E.2d 746,

747 (1973).   This evidence fails to meet that standard.   An

agreement between parties is not shown by merely proving that one

person assists another.   Cf. Poole v. Commonwealth, 7 Va. App.

510, 513, 375 S.E.2d 371, 372-73 (1988).   Indeed, a person may

unwittingly aid a criminal act.   At most, this evidence creates

merely a suspicion of guilt.   However, suspicion, alone, is not

enough to sustain a conviction.   See Stover v. Commonwealth, 222

Va. 618, 624, 283 S.E.2d 194, 197 (1981) ("Suspicion, . . . no

matter how strong, is insufficient to sustain a criminal

conviction."); see also Bridgeman v. Commonwealth, 3 Va. App.

523, 528, 351 S.E.2d 598, 601-02 (1986).   Accordingly, we hold



                               - 4 -
that the evidence was insufficient to support the conviction for

conspiracy to distribute cocaine.




                              - 5 -
                                III.

     The only evidence that tended to show that Gaither knew

cocaine was in the package was Gaither's statement that he

"suspected" drugs.   However, to prove possession the Commonwealth

must prove that Gaither was "aware of the presence and character

of the [cocaine] and was intentionally and consciously"

possessing it.   Wright v. Commonwealth, 217 Va. 669, 670, 232

S.E.2d 733, 734 (1977); see also Buono v. Commonwealth, 213 Va.

475, 193 S.E.2d 798 (1973).   "[C]ircumstances of suspicion, no

matter how grave or strong, are not proof of guilt sufficient to

support a verdict of guilty."    Clodfelter v. Commonwealth, 218

Va. 619, 623, 238 S.E.2d 820, 822 (1977); see also Burton v.

Commonwealth, 215 Va. 711, 213 S.E.2d 757 (1975).    Evidence that

Gaither "suspected" that drugs may have been inside the package

fails to prove beyond a reasonable doubt that Gaither

intentionally and consciously possessed the drugs.   Thus, the

evidence was insufficient to support the conviction for attempted

possession of cocaine with intent to distribute.

     Accordingly, the convictions are reversed.
                                                          Reversed.




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