Rebecca Jones Richard v. Commonwealth of Virginia ( 2020 )


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  •                                           COURT OF APPEALS OF VIRGINIA
    Present: Judges Humphreys, Petty and Huff
    Argued by videoconference
    PUBLISHED
    REBECCA JONES RICHARD
    OPINION BY
    v.     Record No. 1722-19-3                                   JUDGE ROBERT J. HUMPHREYS
    DECEMBER 8, 2020
    COMMONWEALTH OF VIRGINIA
    FROM THE CIRCUIT COURT OF FLOYD COUNTY
    Marcus H. Long, Jr., Judge
    Gary M. Bowman (Gary M. Bowman, Attorney at Law, on briefs),
    for appellant.
    Virginia B. Theisen, Senior Assistant Attorney General (Mark R.
    Herring, Attorney General, on brief), for appellee.
    On October 2, 2018, a grand jury for the Circuit Court of Floyd County (“circuit court”)
    indicted appellant Rebecca Jones Richard (“Richard”) on one count of: conspiracy to distribute a
    controlled substance, in violation of Code §§ 18.2-248 and 18.2-256; and possession with intent
    to distribute a controlled substance, in violation of Code § 18.2-248(C).
    On appeal, Richard assigns error to the circuit court’s denial of her motion to strike the
    conspiracy charge because, she argues, “the evidence proved only that a single buyer-seller
    transaction occurred.” Similarly, she assigns error to the circuit court’s refusal to instruct the
    jury “that a single buyer-seller transaction may not constitute a conspiracy.”
    I. BACKGROUND
    On June 14, 2018, Matthew Harris (“Harris”), an acquaintance of Richard’s, arranged
    through text messages with “Mike from Willis” to trade a total of four “8-balls” of
    methamphetamine, which is approximately half an ounce, for a Pontiac automobile.
    Unbeknownst to him, “Mike from Willis” was actually Investigator Michael Wade (“Investigator
    Wade”) of the Floyd County Sheriff’s Office. Investigator Wade began texting Harris using that
    alias two months prior. Although Investigator Wade did not actually have a car to trade, he was
    trying to get Harris to meet up with him to effectuate a sting operation because “Harris was
    wanted on some other charges” and the sheriff’s office “had received information that he was
    actively avoiding law enforcement.” Harris and Investigator Wade agreed to meet the next day,
    June 15, 2018, at a Dollar General to make the exchange.
    On June 15, 2018, Harris and Investigator Wade negotiated the “price” of the car again
    through text messages and settled on three 8-balls instead of four. At the time, one 8-ball sold
    for about $250 to $350. The same day, Harris contacted Richard “about purchasing some dope.”
    Richard told him that she did not have any methamphetamine for him to buy because the police
    raided her home several weeks earlier and “all of the dope was seized.” Harris let Richard know
    that he had a car available for her to buy. Harris told her that the owner of the car wanted “dope
    in return.” Because Richard did not have any methamphetamine, Harris was going to “front” her
    the drugs to trade for the car, and as she got money from selling her personal items on Facebook
    and her social security disability income, she would pay him back in cash. Until she paid him
    back, Harris would “own half the car.” Harris bought the methamphetamine from another dealer
    and then went to Richard’s house.
    At Richard’s house, Harris showed her the text messages from Investigator Wade.
    Richard and Harris then developed a plan for making the trade. Richard only had $250 in cash,
    so she and Harris agreed that she would pay Harris the $250 as a down payment unless the owner
    of the car was not satisfied with the three 8-balls. If the owner of the car wanted more for it,
    Richard would contribute the $250 to the purchase “price.” Typically, Harris would transport
    drugs to a deal by storing them in the hood of his car. This time, however, he asked Richard to
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    hold on to them and she agreed. Furthermore, Richard would drive to the deal because Harris
    did not have a valid driver’s license. She and Harris agreed that if the person they were meeting
    up with tried to rob Harris, Richard “was to drive away and pick Harris up later.” After
    developing this plan, Richard, Harris, and Richard’s friend Jeffrey Lee (“Lee”) rode together to
    the Dollar General. Richard asked Lee to come and check out the car because she did not “know
    a lot about mechanics.”
    When the three of them arrived at the Dollar General, Investigator Wade was surprised
    because he expected Harris to come alone. Immediately, Investigator Wade recognized Harris.
    Investigator Wade was waiting across the street in an unmarked car and texted Harris that he was
    “five minutes out.” Right after Investigator Wade sent the text, Harris looked down at his phone.
    A few minutes later, Investigator Wade and two other deputies arrested Richard, Harris, and Lee.
    After being placed under arrest and informed of her Miranda rights, Richard “pretty
    quickly” told the deputies that she had “like a quarter [ounce] and then another ball” of
    methamphetamine in her bra “to purchase a vehicle.” The weight of the methamphetamine on
    Richard’s person was consistent with three 8-balls. Richard told Investigator Wade, in detail,
    about her agreement with Harris earlier to trade the methamphetamine for the car. Prior to that
    day, Investigator Wade had never spoken with Richard or negotiated any price with her.
    On July 9, 2019, the circuit court held a jury trial. At the trial, Investigator Wade
    testified to his agreement with Harris to trade the methamphetamine for the car. He also testified
    about what Richard told him regarding her plan with Harris to make the exchange. At the close
    of the Commonwealth’s evidence, Richard moved to strike the conspiracy charge because, she
    argued, the Commonwealth’s evidence only established a single narcotics transaction, which was
    insufficient to sustain a conspiracy to distribute the methamphetamine. The circuit court denied
    the motion. Specifically, the circuit court held,
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    Richard wanted a car. Harris knew she wanted a car. Harris talked
    to Investigator Wade and wanted to know if he still had a car. So
    Richard goes with Harris and . . . she knew that he was delivering
    dope to buy the car. So she knew that, that’s your conspiracy. She
    wanted a car, she knew that Harris was getting the car with the
    dope. As a matter of fact, she went even so far as to possess and
    transferred the dope herself in her bra. And the car went to her.
    So this isn’t a single buyer, single seller. Richard knew Harris was
    giving dope, according to your argument, to buy the car. And at
    that point, that’s your conspiracy.
    Richard then testified on her own behalf and corroborated the same story she told
    Investigator Wade after he arrested her. At the close of the defense evidence, Richard renewed
    her motion to strike. The circuit court denied the motion again, stating,
    They were planning a get away in case the deal went sour, that’s
    what she said. . . . [I]n any event, she knew that they were coming
    to Floyd to obtain this car from basically an unknown person,
    Mr. Harris brought her, and the deal was that they were going
    to . . . purchase it with meth, and possibly the cash that she had,
    that that was part of their conversation and that she transported the
    meth on her person up here and they also . . . planned a get away in
    case they got robbed or something, and that was for her to take off
    with the meth and come back to get him. . . . [I]t’s more than
    seller/buyer.
    Richard proffered two jury instructions that explained that a simple drug transaction
    cannot constitute a conspiracy. The Commonwealth objected that the facts of the case did not
    support the instruction. Richard responded “that the jury is entitled to be instructed on it. It’s
    their call[] or should be their call as to whether this was a single buyer/seller relationship.” The
    circuit court denied the instruction because the facts did not “show that in this case.”
    Accordingly, the circuit court did not give any instructions regarding the application of
    conspiracy liability in a simple drug transaction.
    The jury subsequently found Richard guilty of conspiring to distribute a controlled
    substance and possession with intent to distribute a controlled substance. Based on the jury’s
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    recommendation, the circuit court sentenced Richard to a total of ten years’ imprisonment and
    one year of post-release supervised probation. This appeal follows.
    II. ANALYSIS
    A. Sufficiency of the Conspiracy Evidence
    “A motion to strike challenges whether the evidence is sufficient to submit the case to the
    jury.” Linnon v. Commonwealth, 
    287 Va. 92
    , 98 (2014) (quoting Lawlor v. Commonwealth,
    
    285 Va. 187
    , 223 (2013)). The elements of each offense are a question of law that we review de
    novo. 
    Id.
     (quoting Lawlor, 285 Va. at 223). However, “[w]hether the evidence adduced is
    sufficient to prove each of those elements is a factual finding, which will not be set aside on
    appeal unless it is plainly wrong.” Id. (quoting Lawlor, 285 Va. at 223-24). “In reviewing that
    factual finding, we consider the evidence in the light most favorable to the Commonwealth and
    give it the benefit of all reasonable inferences fairly deducible therefrom.” Id. (quoting Lawlor,
    285 Va. at 224). “After so viewing the evidence, the question is whether any rational trier of fact
    could have found the essential elements of the crime beyond a reasonable doubt.” Id. (quoting
    Lawlor, 285 Va. at 224).
    To establish a conspiracy to distribute a controlled substance, “the evidence must support
    a finding that [the appellant] and at least one other person conspired to possess the [drugs] with”
    the intent to sell or otherwise distribute them. Edwards v. Commonwealth, 
    18 Va. App. 45
    , 48
    (1994). A conspiracy is “an agreement between two or more persons by some concerted action
    to commit an offense.” Zuniga v. Commonwealth, 
    7 Va. App. 523
    , 527 (1988) (quoting Wright
    v. Commonwealth, 
    224 Va. 502
    , 505 (1982)). “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.
     That is, “[t]he agreement is the essence of the
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    conspiracy offense.” Id. at 527-28 (quoting Amato v. Commonwealth, 
    3 Va. App. 544
    , 553
    (1987)). Accordingly, when two or more persons “by their acts pursued the same object, one
    performing one part and the others performing another part so as to complete it or with a view to
    its attainment, the jury will be justified in concluding that they were engaged in a conspiracy to
    effect that object.” Charity v. Commonwealth, 
    49 Va. App. 581
    , 586 (2007) (quoting Brown v.
    Commonwealth, 
    10 Va. App. 73
    , 78 (1990)).
    The conspiracy is complete when the parties form the agreement to commit the offense,
    “regardless of whether any overt act in furtherance of commission of the substantive offense is
    committed.” Johnson v. Commonwealth, 
    8 Va. App. 34
    , 38 (1989) (citing Ramsey v.
    Commonwealth, 
    2 Va. App. 265
    , 270 (1986)). A party can join the conspiracy at any time and
    need not be a co-conspirator from the inception of the criminal plan to be found guilty of
    conspiracy. See id. at 39. Here, it is not consequential that Harris already planned to make the
    trade with Investigator Wade prior to Richard’s involvement, nor is it consequential that Richard
    and Harris entered the conspiracy the same day the deal was set to take place. Thus, although
    Richard relies on the fact that Harris arranged to trade the methamphetamine for the car before
    she became involved, that fact does not preclude a finding that she and Harris conspired to
    distribute the methamphetamine.
    “Traditionally the law has considered conspiracy and the completed substantive offense
    to be separate crimes.” Iannelli v. United States, 
    420 U.S. 770
    , 777 (1975). However, a legal
    principle generally referred to as “Wharton’s Rule” recognizes an exception to the common law
    of conspiracy. Wharton’s Rule essentially states that where the substantive offense requires the
    involvement of more than one criminal agent and the agreement between them is no broader than
    accomplishing the substantive offense, the parties cannot also be punished as conspirators absent
    legislative intent to the contrary. Stewart v. Commonwealth, 
    225 Va. 473
    , 478 (1983). The Rule
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    applies where “[t]he parties to the agreement are the only persons who participate in the
    commission of the substantive offense, and the immediate consequences of the crime rest on the
    parties themselves rather than on society at large.” Iannelli, 
    420 U.S. at 782
    . “The reason for the
    [R]ule rests on the nature of the crime of conspiracy, which attempts to punish combination in
    crime which generates criminal activity ‘not confined to the substantive offense which is the
    immediate aim of the enterprise.’” Stewart, 225 Va. at 478 (quoting Iannelli, 
    420 U.S. at 778
    ).
    Put simply, “absent legislative intent to the contrary, the Rule supports a presumption that . . .
    [conspiracy and the substantive offense] merge when the substantive offense is proved.” Id. at
    479 (alterations in original) (quoting Iannelli, 
    420 U.S. at 785-86
    ).
    Additionally, at common law, the members of a conspiracy shared the same overarching
    criminal intent. See Ocasio v. United States, 
    136 S. Ct. 1423
    , 1429 (2016) (“[C]onspirators must
    ‘pursue the same criminal objective . . . .’” (quoting Salinas v. United States, 
    522 U.S. 52
    , 63
    (1997))).
    However, our simple drug transaction jurisprudence1 acknowledges Wharton’s Rule and
    also recognizes an additional difference unique to drug transactions. Unlike co-conspirators, the
    parties to such a drug transaction do not share the same intent—one intends to possess
    contraband while the other intends to distribute it. Thus, although generally “a single
    buyer-seller relationship, standing alone, does not constitute a conspiracy,” a conspiracy can
    exist based on a simple drug transaction if a two-step test is met. Zuniga, 7 Va. App. at 529
    (emphasis added).
    1
    Although our case law refers to this exception to conspiracy liability as a “single
    buyer-seller relationship,” we think it more accurately refers to a simple drug sale transaction,
    particularly since we have also held it applies to two buyers in a single transaction. See
    Edwards, 18 Va. App. at 48.
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    “The first step is whether ‘the seller knows the buyer’s intended illegal use’” and thus
    shares his intent; “the second step is whether the seller ‘intends to further, promote, and
    cooperate in’ the buyer’s venture.” Edwards, 18 Va. App. at 48 (quoting Direct Sales Co. v.
    United States, 
    319 U.S. 703
    , 711 (1943)). Although the test is somewhat inaccurately stated as
    “a vertical transaction, i.e. one between a seller and buyer, rather than a horizontal one, i.e. one
    between two buyers” or two sellers, the principles of the test may also be applied to a transaction
    between two buyers or two sellers. 
    Id.
     If the drug transaction meets both prongs of the test, the
    participants share the same overarching criminal intent and the conspiracy is complete.
    The simple drug transaction rule acknowledges that, although a simple drug transaction
    involves at least two or more criminal agents, the transaction does not necessarily create a
    conspiracy. If the transaction is spontaneous, the criminal enterprise lacks the shared intent,
    preconcert, and connivance that the law of conspiracy is meant to deter, there is no conspiracy.2
    However, a simple narcotics transaction can still give rise to a conspiracy. See id. at
    48-49. If the participants agree and plan to commit the crime in advance of the transaction such
    that the transaction is not spontaneous and share the same criminal objective, they are guilty of
    2
    “[A] conspiracy poses distinct dangers quite apart from those of the substantive
    offense.” Iannelli, 
    420 U.S. at 778
    . In addition to the completion of the substantive offense,
    concerted action from multiple criminal agents
    both increases the likelihood that the criminal object will be
    successfully attained and decreases the probability that the
    individuals involved will depart from their path of criminality.
    Group association for criminal purposes often, if not normally,
    makes possible the attainment of ends more complex than those
    which one criminal could accomplish. Nor is the danger of a
    conspiratorial group limited to the particular end toward which it
    has embarked. Combination in crime makes more likely the
    commission of crimes unrelated to the original purpose for which
    the group was formed.
    
    Id.
     (quoting Callanan v. United States, 
    364 U.S. 587
    , 593-94 (1961)).
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    conspiracy regardless of whether it is ever consummated. Put differently, though there is
    obviously at least an implicit agreement to buy or sell drugs in any simple drug transaction, if the
    agreement to make the exchange occurs at essentially the same time as the transaction itself, the
    transaction is sufficiently spontaneous to conclude that the participants did not share the same
    intent and engage in preconcert and connivance, there is no conspiracy. A simple drug
    transaction is marked by spontaneity, while the essence of conspiracy is an agreement at least
    somewhat in advance of the transaction. In most instances, the presence of these factors or their
    absence are inferred from the circumstances. See James v. Commonwealth, 
    53 Va. App. 671
    ,
    678 (2009) (noting that due to the “clandestine nature” of conspiracy, most conspiracies are
    proved by indirect and circumstantial evidence since “[i]t is a rare case where any ‘formal
    agreement among alleged conspirators’ can be established” (citation omitted)).
    In the case before us, however, direct evidence supported a finding that Richard and
    Harris had an explicit, pre-conceived plan to distribute methamphetamine. Richard knew of
    Harris’s intent to distribute the methamphetamine in exchange for the car. See Edwards, 18
    Va. App. at 48 (“When one buyer knows that the other buyer intends to possess the substance
    with intent to distribute it, the first step in the test is met.”). She also cooperated in the venture
    and expected to share in the proceeds of the distribution by becoming a co-owner of the car until
    she could pay Harris back. See id. at 46 (finding evidence that “the defendant expected to share
    in the proceeds of the accomplice’s sale” supported conspiracy conviction).
    Prior to the meeting to make the trade, Richard and Harris developed a detailed plan that
    Richard would drive them to the pre-determined location, hold the methamphetamine on her
    person, and, if Harris got robbed, she would drive away but return later to pick him up.
    Additionally, prior to the meeting the two determined that if “Mike from Willis” wanted more
    than three 8-balls for the car, Richard could contribute the $250 she had on her in cash. From
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    these facts, a rational trier of fact could have found the elements of shared intent, preconcert, and
    connivance in a plan to distribute methamphetamine, thereby concluding that Richard and Harris
    conspired to distribute methamphetamine in exchange for a car. Accordingly, the circuit court
    did not err in denying Richard’s motion to strike.
    B. Jury Instructions
    “We review a [circuit] court’s decision to refuse a jury instruction for abuse of
    discretion.” Payne v. Commonwealth, 
    65 Va. App. 194
    , 203 (2015) (citing King v.
    Commonwealth, 
    64 Va. App. 580
    , 586 (2015) (en banc)). However, we review de novo whether
    a jury instruction accurately states the relevant law. 
    Id.
     Our “sole responsibility” in reviewing
    jury instructions “is to see that the law has been clearly stated and that the instructions cover all
    issues which the evidence fairly raises.” King, 64 Va. App. at 586-87 (quoting Molina v.
    Commonwealth, 
    272 Va. 666
    , 671 (2006)). In determining what issues the evidence fairly
    raises, “we view the evidence in the light most favorable to the proponent of the instruction.” Id.
    at 583.
    “A defendant is entitled to have the jury instructed only on those theories of the case that
    are supported by [more than a scintilla of] evidence.” Id. at 587 (alteration in original) (quoting
    Eaton v. Commonwealth, 
    240 Va. 236
    , 255 (1990)). Whether credible evidence amounts to
    more than a mere scintilla “is a matter to be resolved on a case-by-case basis” by evaluating the
    evidence in support of a proposition against other credible evidence that negates it. 
    Id.
     “‘If a
    proffered instruction finds any support in credible evidence,’ however, ‘its refusal is reversible
    error.’” 
    Id.
     (quoting McClung v. Commonwealth, 
    215 Va. 654
    , 657 (1975)).
    In a jury trial, because the jury, not the court, is the arbiter of the credibility of the
    evidence, if there is evidence that tends to sustain either the Commonwealth’s theory or the
    defense’s theory of the case, the circuit court must instruct the jury as to both theories “to guide a
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    jury in their deliberations as to the law applicable to the case, depending upon how the jury
    decides the facts.” 
    Id.
     (quoting Foster v. Commonwealth, 
    13 Va. App. 380
    , 383 (1991)).
    Here, Richard proffered two instructions regarding the simple narcotics transaction rule
    in conspiracy liability. The first read, “A single buyer-seller relationship, standing alone, does
    not constitute a conspiracy.” The second read:
    A single buyer-seller relationship may constitute a conspiracy only
    if:
    (1) the seller knows the buyer’s intended use; and
    (2) that by the sale, the seller, intends to further, promote and
    cooperate in the venture.
    Both proffered instructions accurately state the rules adopted in Zuniga and were submitted to
    the circuit court with a proper citation to that case.3 The question then is whether the simple
    drug transaction theory, viewed in the light most favorable to Richard, was supported by more
    than a mere scintilla of credible evidence.
    On appeal, the Commonwealth argues that there was not more than a scintilla of credible
    evidence to support the instruction because “there was a specific and detailed arrangement and
    agreement.” However, that conclusion depends on the credibility of the witnesses and the weight
    given their testimony. As noted above, the evidence, if viewed in the light most favorable to the
    Commonwealth, is legally sufficient to establish Richard’s involvement in a criminal conspiracy.
    However, whether a properly instructed jury would view the facts in that light is an open
    question since they were not instructed that the nature of the transaction and the degree of
    3
    Although the second jury instruction slightly misquotes Zuniga, which laid out the first
    step of the test as “the seller knows the buyer’s intended illegal use,” 7 Va. App. at 529
    (emphasis added), that slight misquotation does not change our analysis. Moreover, the
    Commonwealth does not contend that the proffered instructions were incorrect and, in fact,
    conceded at oral argument that the proffered instructions were correct statements of the law.
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    Richard’s involvement in it might, though not necessarily would, make a difference in her
    criminal liability for conspiracy. Thus, the circuit court’s refusal to give the proffered
    instructions was error.
    III. CONCLUSION
    For the reasons stated, we hold that from the evidence, viewed in the light most favorable to
    the Commonwealth, a rational trier of fact could have concluded that Richard and Harris conspired
    to distribute methamphetamine, and therefore we affirm the circuit court’s denial of the motion to
    strike. However, we also hold that viewing the evidence in the light most favorable to Richard,
    there was more than a scintilla of evidence to support the proffered instruction such that the jury
    should have been given the opportunity to determine if the evidence supported its application to the
    facts as weighed by the them. 4 Accordingly, we reverse the judgment of the circuit court with
    respect to Richard’s conviction for conspiracy to distribute a controlled substance and remand for a
    new trial, if the Commonwealth be so advised.
    Affirmed in part, reversed in part, and remanded.
    4
    The standards of appellate review are very different in the assignments of error before
    us and mandate this result. In considering the sufficiency of the evidence in this case
    a reviewing court must consider all of the evidence admitted by the
    trial court in deciding whether retrial is permissible under the
    Double Jeopardy Clause . . . and the overwhelming majority of
    appellate courts considering the question have agreed. The basis
    for [this] exception to the general rule [of remanding for a new
    trial] is that a reversal for insufficiency of the evidence should be
    treated no differently than a trial court’s granting a judgment of
    acquittal at the close of all the evidence. A trial court in passing on
    such a motion considers all of the evidence it has admitted, and to
    make the analogy complete it must be this same quantum of
    evidence which is considered by the reviewing court.
    Lockhart v. United States, 
    488 U.S. 33
    , 41-42 (1988) (emphasis added). See also Code
    § 19.2-324.1.
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