Timothy Joseph Levi v. Commonwealth ( 1997 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Fitzpatrick and Annunziata
Argued at Richmond, Virginia
TIMOTHY JOSEPH LEVI
MEMORANDUM OPINION * BY
v. Record No. 2640-96-2 JUDGE LARRY G. ELDER
SEPTEMBER 16, 1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
James B. Wilkinson, Judge
Kevin M. Schork (Epperly, Follis & Schork,
P.C., on brief), for appellant.
Robert H. Anderson, III, Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.
Timothy Joseph Levi (appellant) appeals his convictions of
two counts of conspiracy to distribute heroin in violation of
Code § 18.2-256. 1 He contends that the evidence was insufficient
to prove that he entered into an agreement with either Corey
Jones or "Darrell" 2 to distribute heroin. For the reasons that
follow, we affirm.
Under Code § 18.2-256, it is illegal for any person to
conspire to commit any offense defined in either the article of
the criminal code dealing with drug-related crimes or in the Drug
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
1
Appellant was also convicted of two counts of distributing
heroin in violation of Code § 18.2-248. He does not appeal
either of these convictions.
2
The evidence admitted at trial did not establish Darrell's
last name.
Control Act. Although Code § 18.2-256 does not set forth the
meaning of "conspire," its definition is well established. "A
conspiracy is 'an agreement between two or more persons by some
concerted action to commit an offense.'" Hudak v. Commonwealth,
19 Va. App. 260, 262, 450 S.E.2d 769, 771 (1994) (citations
omitted).
The existence of an actual agreement between two or more
persons is an essential element of the crime of conspiracy. See
Fortune v. Commonwealth, 12 Va. App. 643, 647, 406 S.E.2d 47, 48
(1991).
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."
Zuniga v. Commonwealth, 7 Va. App. 523, 527, 375 S.E.2d 381, 384
(1988) (citation omitted). The existence of an agreement between
an accused and another person to commit an offense may be proved
by circumstantial evidence. See Schultz v. Commonwealth, 6 Va.
App. 439, 442-43, 369 S.E.2d 215, 217 (1988) (citing Floyd v.
Commonwealth, 219 Va. 575, 580, 249 S.E.2d 171, 174 (1974)).
"[A] formal agreement need not be shown" and "a conspiracy 'can
be inferred from the overt conduct of the parties.'" Id. at 443,
2
369 S.E.2d at 217 (citation omitted).
When the sufficiency of the evidence to prove conspiracy is
challenged on appeal, "the evidence must be viewed in the light
most favorable to the Commonwealth, granting to it all reasonable
inferences fairly deducible therefrom." Feigley v. Commonwealth,
16 Va. App. 717, 722, 432 S.E.2d 520, 523-24 (1988) (citing
Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534,
537 (1975)). The jury's verdict will not be disturbed unless
plainly wrong or without evidence to support it. See Traverso v.
Commonwealth, 6 Va. App. 172, 176, 366 S.E.2d 719, 721 (1988).
First, we conclude that the evidence was insufficient to
prove the existence of a conspiracy between appellant and Jones.
During both transactions for which appellant was charged with
conspiracy, Jones was working as a confidential informant -- an
agent of the police. Because Jones was not a "bona fide
co-conspirator," there could be no "meeting of the minds" as a
matter of law between him and appellant to distribute heroin to
Detective Foster. See Fortune, 12 Va. App. at 648, 406 S.E.2d at
49.
However, we also conclude that the evidence was sufficient
to support the jury's conclusion that appellant entered into an
agreement with Darrell to distribute heroin. Jones' testimony
regarding the conduct of Darrell and appellant on December 7 and
12 and the tape of the telephone conversation between Darrell and
Jones indicates that Darrell and appellant had previously agreed
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to sell heroin. The integral role played by Darrell in both
transactions and the orchestrated nature of his participation
supports the reasonable inference that he both knew of
appellant's plan to sell heroin to Jones and had earlier formed
the intent to cooperate in the venture. From his initial phone
call to Jones on behalf of appellant to his continuous
chauffeuring of appellant and Jones throughout all of the pivotal
points of both deals, Darrell's coordinated participation
indicates that he and appellant were working together pursuant to
a prior agreement.
Because we cannot say that the jury's conclusion that
appellant entered into an agreement with Darrell to distribute
heroin was either plainly wrong or unsupported by the evidence,
we affirm the convictions of conspiracy to distribute heroin.
Affirmed.
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