Kevi Comas, s/k/a Kevi Salvador Comas v. CW

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judge Annunziata and
Senior Judge Duff
Argued at Alexandria, Virginia
KEVI COMAS, S/K/A
KEVI SALVADOR COMAS
MEMORANDUM OPINION * BY
v. Record No. 1216-99-2 CHIEF JUDGE JOHANNA L. FITZPATRICK
JUNE 6, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
James B. Wilkinson, Judge
Andrea C. Long (David E. Boone; Boone, Beale,
Cosby & Long, on brief), for appellant.
Amy L. Marshall, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Kevi Salvador Comas (appellant) was convicted in a bench
trial of distribution of heroin, in violation of Code § 18.2-248,
and conspiracy to distribute heroin, in violation of Code
§ 18.2-22. 1 The sole issue raised on appeal is whether the
evidence was sufficient to convict appellant of the charges.
Finding the evidence insufficient on both charges, we reverse.
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
1
Appellant was also indicted for possession of heroin with
intent to distribute, in violation of Code § 18.2-248.1.
However, the trial court merged the possession charge with the
distribution charge.
I.
Under familiar principles of appellate review, we examine
the evidence in the light most favorable to the Commonwealth,
the prevailing party below, granting to that evidence all
reasonable inferences fairly deducible therefrom. See Juares v.
Commonwealth, 26 Va. App. 154, 156, 493 S.E.2d 677, 678 (1997).
So viewed, the evidence established that on October 15, 1998,
Detective Mark Dunn (Dunn) arrested Anthony Williams (Williams)
for an outstanding narcotics warrant. Williams agreed to
cooperate with the police and work as a confidential informant
in the controlled purchase of narcotics from "several Dominican"
males. He knew the individuals by their nicknames "Bumler" and
"Victor," later identified as Felix Martinez and Daniel
Martinez. Williams had no contact with appellant, a 23-year-old
taxicab driver from New York, in arranging the controlled
purchase.
Under the direction of Dunn, Williams paged two numbers
with a New York area code and within five minutes received a
return phone call from the Econo Lodge on Midlothian Turnpike in
Richmond, Virginia. At that time, Williams arranged to purchase
three ounces of heroin, paying $3,800 for one ounce and the
other two ounces "were going to be received on consignment."
The controlled purchase was going to take place the following
day at a yet to be determined location.
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Police set up surveillance at the Econo Lodge on October
15, 1998. A "green Windstar van with New York tags" was in the
parking lot. Later that night, Detective Dunn saw three
Dominican males leave Room 205 and go to a Waffle House
restaurant on Midlothian Turnpike. "They stayed at the Waffle
House for a short period of time and then they returned and went
back into Room 205 at the Econo Lodge." The room was registered
in appellant's name.
The following morning, Williams received a page from the
Econo Lodge and made arrangements to meet at a bowling alley on
Belt Boulevard. At approximately 12:30 p.m., the surveillance
units observed all three men exit Room 205, get into the
Windstar van, and drive to the bowling alley on Belt Boulevard.
Felix Martinez drove the van, Daniel Martinez sat in the front
passenger seat, and appellant sat in the rear bench seat. After
arriving at the bowling alley, the men waited approximately two
minutes, exited the van, and went inside the bowling alley.
After Williams arrived, the Martinez brothers "exited the
bowling alley and walked over to the Windstar van." Appellant
remained inside the bowling alley. Dunn observed the following:
After they had hit the buttons to unlock the
doors Mr. Daniel Martinez walked around to
the sliding door, which was the door that
[appellant] had come out, and opened up the
door and reached in by the bench seat that
was right directly behind the driver and the
passenger doors[,] . . . at which time Mr.
Felix Martinez had opened up the driver's
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side door and he had reached into the
vehicle also. And, then they had both
turned . . . to [Williams's] vehicle and
Danny Martinez had walked over to
[Williams's] passenger side window, at which
time they had a conversation . . . .
Felix Martinez then exchanged an object, later identified as a
bag with an "Oodles of Noodles box" inside, for $3,800 in marked
bills. The box contained approximately 54 grams of heroin in
two separate bags.
After the sale, the Martinez brothers went back into the
bowling alley to meet appellant. Approximately one-half hour
later, the surveillance team observed appellant, who was not
involved in the parking lot transaction, and the Martinez
brothers leave the bowling alley and return to the Econo Lodge.
The men walked to a nearby Chinese restaurant, where they were
arrested. In a search of the van, the police found under the
driver's seat the $3,800 in marked bills. The police also
searched the hotel room, where they found "a pair of scissors
sitting on the table," five grams of heroin in a latex glove
"underneath [a] tissue box," and "a bunch of Oodles of Noodles"
inside the garbage can. One of the arresting officers searched
appellant and found a wallet containing his identification,
approximately $220 in cash, a pager, a cell phone, and an
electronic organizer.
At trial, Williams testified that he knew "Bumler" Martinez
and "Victor" Martinez from a previous drug transaction.
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Williams also stated that he saw appellant "in the car back
during the summertime, but [he] never did get no drugs [sic]
from [appellant]" and could not remember the type of car.
Williams confirmed that appellant was not present in the bowling
alley parking lot on October 16, 1998. Williams admitted that
he had been convicted of four felonies and that a recent
narcotics charge had been nolle prossed on October 17, 1998.
On cross-examination, Detective Dunn testified that
appellant did not drive the van at any time while the men were
under police surveillance. Dunn was unsure what appellant was
doing in the bowling alley during the controlled purchase, but
confirmed that appellant was not present in the parking lot.
Finally, Dunn admitted that appellant's voice did not appear on
any of the telephone calls taped by the police.
In his defense, appellant testified that he met the
Martinez brothers in New York at a parking lot owned by his
father where appellant attended cars. The brothers knew
appellant drove a taxicab and they wanted him to accompany them
to Richmond to buy a "Lincoln Town Car" for a taxi business.
Appellant was going to drive the car back to New York and lease
it from the Martinez brothers on a weekly basis.
Appellant testified that he had never been to Richmond,
Virginia prior to the October 15, 1998 trip. When the three men
arrived at the Econo Lodge, Felix Martinez handed appellant a
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fifty-dollar bill and asked him to go rent a room while they
parked the van. Inside, the hotel clerk asked appellant for
identification, which appellant produced, and the room was
registered in appellant's name.
Appellant testified that he did not know about the drug
transaction and, although he saw a bag sitting in the van, he
did not know what was in the bag. He admitted that he was
present in the hotel room while the Martinez brothers made some
phones calls, but he did not overhear their conversations.
Appellant stated that the television was on "most of the time"
and that the men generally talked about what was on the
television and about buying the Lincoln Town Car from an
individual named "Miguel."
Appellant testified that on October 16, 1998, the men left
the hotel to play pool at a bowling alley. When they arrived,
they went inside the bowling alley and appellant rented a table
and ordered some food. Although the Martinez brothers went
outside for a few moments, appellant remained inside the bowling
alley until the three of them left. Appellant testified that
the pager, cell phone and electronic organizer belonged to
Daniel Martinez and that the police placed all the seized items,
including his wallet and cash, into one bag.
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On cross-examination, appellant denied ever seeing drugs or
the Martinez brothers packaging any drugs. He denied
overhearing any telephone conversations about a drug purchase.
At the conclusion of the presentation of evidence, the
trial court found appellant guilty of distribution of heroin, in
violation of Code § 18.2-248, and conspiracy to distribute heroin,
in violation of Code § 18.2-22.
II.
When the sufficiency of the evidence is challenged on
appeal, we determine whether the evidence, viewed in the light
most favorable to the prevailing party, the Commonwealth, and
the reasonable inferences fairly deducible from that evidence
support each and every element of the charged offense. See
Moore v. Commonwealth, 254 Va. 184, 186, 491 S.E.2d 739, 740
(1997); Derr v. Commonwealth, 242 Va. 413, 424, 410 S.E.2d 662,
668 (1991). "In so doing, we must discard the evidence of the
accused in conflict with that of the Commonwealth, and regard as
true all the credible evidence favorable to the Commonwealth and
all fair inferences that may be drawn therefrom." Watkins v.
Commonwealth, 26 Va. App. 335, 349, 494 S.E.2d 859, 866 (1998).
"We will not reverse the judgment of the trial court, sitting as
the finder of fact in a bench trial, unless it is plainly wrong
or without evidence to support it." Reynolds v. Commonwealth,
30 Va. App. 153, 163, 515 S.E.2d 808, 813 (1999) (citing Martin
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v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418
(1987)).
On appeal, appellant contends that the circumstantial
evidence was insufficient to prove that he was a principal in
the second degree to distribution of a controlled substance.
Although the motel room was in his name, appellant argues that
no act, statement, conduct or any other evidence established
that "he knew of the presence and character of any heroin or of
any heroin deal." We agree.
Proof by circumstantial evidence "'is not sufficient . . .
if it engenders only a suspicion or even a probability of guilt.
Conviction cannot rest upon conjecture.'" Littlejohn v.
Commonwealth, 24 Va. App. 401, 414, 482 S.E.2d 853, 859 (1997)
(quoting Hyde v. Commonwealth, 217 Va. 950, 955, 234 S.E.2d 74,
78 (1977)). "'"[A]ll necessary circumstances proved must be
consistent with guilt and inconsistent with innocence and
exclude every reasonable hypothesis of innocence."'" Betancourt
v. Commonwealth, 26 Va. App. 363, 373, 494 S.E.2d 873, 878
(1998) (quoting Stover v. Commonwealth, 222 Va. 618, 623, 283
S.E.2d 194, 196 (1981) (quoting Inge v. Commonwealth, 217 Va.
360, 366, 228 S.E.2d 563, 567 (1976))). "When, from the
circumstantial evidence, 'it is just as likely, if not more
likely,' that a 'reasonable hypothesis of innocence' explains
the accused's conduct, the evidence cannot be said to rise to
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the level of proof beyond a reasonable doubt." Littlejohn, 24
Va. App. at 414, 482 S.E.2d at 859 (quoting Haywood v.
Commonwealth, 20 Va. App. 562, 567-68, 458 S.E.2d 606, 609
(1995)). The Commonwealth need not "exclude every possible
theory or surmise," but it must exclude those hypotheses "which
flow from the evidence itself." Cantrell v. Commonwealth, 7 Va.
App. 269, 289-90, 373 S.E.2d 328, 338-39 (1988) (citations
omitted).
Because appellant was never directly involved in the drug
transaction in the parking lot at the bowling alley or in
setting up the buy, the Commonwealth proceeded on the theory
that he was a principal in the second degree. To prove that
appellant was a principal in the second degree to distribution
of heroin, the Commonwealth had to prove beyond a reasonable
doubt that he was present during the offense and aided and
abetted or encouraged the Martinez brothers in the crime. See
Rollston v. Commonwealth, 11 Va. App. 535, 539, 399 S.E.2d 823,
825 (1991). Furthermore, appellant must have shared the
criminal intent of the principals in the first degree. See id.Mere presence when a crime is committed
is, of course, not sufficient to render one
guilty as aider or abettor. There must be
something to show that the person present
and so charged, in some way procured, or
incited, or encouraged, the act done by the
actual perpetrator. But whether a person
does in fact aid or abet another in the
commission of a crime is a question which
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may be determined by circumstances as well
as by direct evidence. . . .
To constitute one an aider and abettor,
he must be guilty of some overt act, or he
must share the criminal intent of the
principal or party who commits the crime.
. . .
Notwithstanding these rules as to the
nonliability of a passive spectator, it is
certain that proof that a person is present
at the commission of a crime without
disapproving or opposing it, is evidence
from which, in connection with other
circumstances, it is competent for the jury
to infer that he assented thereto, lent to
it his countenance and approval, and was
thereby aiding and abetting the same.
Foster v. Commonwealth, 179 Va. 96, 99-100, 18 S.E.2d 314, 316
(1942) (citations omitted) (emphasis added).
Even viewed in the light most favorable to the
Commonwealth, no evidence established that appellant, as a
principal in the second degree, "in some way procured, or
incited, or encouraged" or was present when the Martinez
brothers distributed the heroin. Id. The van did not belong to
appellant, and he was never seen driving the van; he was not
present during the actual transaction in the bowling alley
parking lot; he was never seen carrying the drugs or receiving
or handling either the drugs or money; and his testimony that he
knew nothing about the drug transaction was unrebutted.
Significantly, appellant does not appear in the video-taped drug
exchange in the parking lot, and his voice was not identified as
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being in the audio-taped telephone calls. Put simply, there is
no evidence linking appellant to the drugs, and any alleged
involvement in the transaction was purely speculative.
"Suspicion, no matter how strong, is not enough. Convictions
cannot rest upon speculation and conjecture." Littlejohn, 24
Va. App. at 415, 482 S.E.2d at 860 (citations omitted).
Nevertheless, the Commonwealth contends that the trial
court could reasonably infer appellant's knowledge of the drug
transaction because approximately five grams of heroin were
found "on the sink in plain view in the motel room." To the
contrary, there was no evidence that the drugs were in plain
view. Detective Dunn testified that the five grams of heroin
were found "underneath the tissue box." (Emphasis added).
Additionally, appellant's mere presence in the hotel room or
proximity to the drugs is not sufficient to prove that he either
possessed or was involved in the distribution of the drugs.
See, e.g., Walton v. Commonwealth, 255 Va. 422, 426, 497 S.E.2d
869, 872 (1998); Haskins v. Commonwealth, 31 Va. App. 145, 152,
521 S.E.2d 777, 780 (1999). Proof of a mere opportunity to
commit an offense provides only "the suspicion that the
defendant may have been the guilty agent; and suspicion is never
enough to sustain a conviction." Simmons v. Commonwealth, 208
Va. 778, 783, 160 S.E.2d 569, 573 (1968). The Commonwealth's
evidence failed to prove that appellant was either directly
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involved in the drug transaction or that he acted as a principal
in the second degree. Finding the evidence insufficient, we
reverse the distribution conviction.
Next, appellant contends that the evidence was insufficient
to prove that he conspired to distribute heroin. He argues that
"[n]o evidence was presented of any conversation about drugs
which [he] is purported to have had with either of the Martinez
brothers or Williams." We agree.
"Conspiracy is defined as an agreement between two or more
persons by some concerted action to commit an offense." Zuniga
v. Commonwealth, 7 Va. App. 523, 527, 375 S.E.2d 381, 384 (1988)
(quoting Wright v. Commonwealth, 224 Va. 502, 505, 297 S.E.2d
711, 713 (1982)) (internal quotations and citation omitted).
[A] defendant may wittingly aid a criminal
act and be liable as an aider and abettor,
but not be liable for conspiracy, which
requires knowledge of and voluntary
participation in an agreement to do an
illegal act. 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. The agreement is
the essence of the conspiracy offense.
[T]he Commonwealth must prove beyond a
reasonable doubt that an agreement existed.
Id. at 527-28, 375 S.E.2d at 384 (internal quotations and
citations omitted).
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In the instant case, no evidence was presented that an
agreement to distribute heroin existed between appellant and
either the Martinez brothers or Williams. "[E]vidence of a
distribution offense absent an agreement will not suffice to
support a conspiracy conviction." Id. at 528, 375 S.E.2d at 385(citations omitted) (emphasis added). Here, there was
insufficient evidence to prove that appellant either was a
principal in the second degree to the distribution charge or was
part of a conspiracy to distribute. For the foregoing reasons,
we reverse and dismiss the convictions.
Reversed and dismissed.
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