Milton Gaither v. Commonwealth ( 1997 )

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
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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
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that the evidence was insufficient to support the conviction for
conspiracy to distribute cocaine.
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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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