Michael Dwayne Carter v. Commonwealth ( 1995 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judge Willis and Senior Judge Hodges
Argued at Alexandria, Virginia
MICHAEL DWAYNE CARTER
v. Record No. 1756-94-4 MEMORANDUM OPINION * BY
JUDGE JERE M. H. WILLIS, JR.
COMMONWEALTH OF VIRGINIA OCTOBER 3, 1995
FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY
Frank A. Hoss, Jr., Judge
Polly B. Knight for appellant.
Eugene Murphy, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
On appeal from his conviction of conspiracy to distribute
cocaine, Michael Dwayne Carter contends that the evidence is
insufficient to support his conviction. We agree and reverse the
judgment of the trial court.
On July 2, 1993, while conducting covert surveillance in the
area of Bird Drive in Manassas, Officer Woolverton saw Mary
Barber, whose identity he knew, talking to a man later identified
as Gerald Davis. Davis asked Ms. Barber whether she could find
him some drugs. He gave her $140. Ms. Barber approached Carter
who was standing nearby. He gave her crack cocaine, which she
gave to Davis, who then walked away. Ms. Barber then gave the
$140 to Carter.
This evidence fails to prove that Carter conspired with Ms.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
Barber to distribute cocaine to Davis. "A conspiracy is 'an
agreement between two or more persons by some concerted action to
commit an offense.'" Brown v. Commonwealth, 3 Va. App. 101, 107,
348 S.E.2d 408, 411 (1986). "Absent an actual agreement between
two or more persons, a bilateral meeting of the minds, Virginia
law precludes a finding that a conspiracy exists." Fortune v.
Commonwealth, 12 Va. App. 643, 650, 406 S.E.2d 47, 50 (1991).
"[T]he Commonwealth must prove beyond a reasonable doubt that an
agreement existed." Floyd v. Commonwealth, 219 Va. 575, 580, 249
S.E.2d 171, 174 (1978).
"A conspiracy to distribute drugs can be shown by a series
of drug transactions where one person sells drugs to a buyer who,
in turn, resells them to a third party." Feigley v.
Commonwealth, 16 Va. App. 717, 722, 432 S.E.2d 520, 524 (1993).
"As a general rule a single buyer-seller relationship, standing
alone, does not constitute a conspiracy." Zuniga v.
Commonwealth, 7 Va. App. 523, 528, 375 S.E.2d 381, 385 (1988).
"Likewise, evidence of a distribution offense absent an agreement
will not suffice to support a conspiracy conviction." Id.
Viewed in the light most favorable to the Commonwealth, the
evidence failed to prove that Carter and Ms. Barber had
prearranged the distribution of drugs. No evidence proved a
prior meeting, a meeting of the minds, or prior transactions
completed in the same manner by Ms. Barber for Carter. The
evidence disclosed only an isolated transaction wherein Ms.
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Barber agreed to act on behalf of Davis to purchase drugs. The
Commonwealth failed to prove a conspiracy between Carter and Ms.
Barber.
The judgment of the trial court is reversed.
Reversed.
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