Linda Anne Brown v. Commonwealth

COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, Humphreys and Haley
Argued at Salem, Virginia
LINDA ANNE BROWN
MEMORANDUM OPINION * BY
v. Record No. 3168-06-3 JUDGE ROBERT P. FRANK
MARCH 11, 2008
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF AUGUSTA COUNTY
Thomas H. Wood, Judge
Tate C. Love (Black, Noland & Read, P.L.C., on brief), for
appellant.
Karen Misbach, Assistant Attorney General II (Robert F.
McDonnell, Attorney General, on brief), for appellee.
Linda Anne Brown, appellant, was convicted, in a bench trial, of conspiring to distribute
methamphetamine, in violation of Code § 18.2-256. On appeal, she contends the trial court erred in
finding the evidence sufficient to convict. For the reasons stated, we affirm.
BACKGROUND
On April 5, 2004, at around noon, Crystal Claytor arrived at appellant’s home. Claytor was
meeting Holly Sprouse, who had arrived before her and was seated on the floor beside appellant’s
recliner. Claytor noticed that Sprouse was writing on a manila envelope. In the presence of both
Claytor and appellant, Sprouse wrote “two ounces” and “$3500” on the envelope, 1 as well as the
name “Gator.” Appellant saw Sprouse put two ounces of methamphetamine and cash into the
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
1
The manila envelope had the following inscription, “3500 cash and 2 oz. (1) 28.2, (2)
27.8, 943-5047, Gator.”
envelope, then fold and tape it closed. Sprouse handed the envelope to appellant without
explanation. Appellant accepted the envelope, tucked it into the recliner beside her, and said, “This
is in my hands now. Someone will have to kill me first before they get their hands on this. It’s safe
with me.”
Claytor and Sprouse left with one ounce of methamphetamine and drove to Colonial Mall in
Augusta County. Police, acting on a tip from a confidential informant, stopped Sprouse’s car when
she and Claytor arrived at the mall. A search of the car revealed $363 in U.S. currency and various
“stashes” of methamphetamine located inside the vehicle.
Deputy Jonathan Sholes of the Augusta County sheriff’s office obtained an arrest warrant
for appellant and, with other officers, went to appellant’s house to execute the warrant that same
evening. Finding appellant at home, Sholes told her he had information regarding the envelope
Sprouse had left with her. Appellant retrieved the envelope from a dresser drawer and gave it to the
deputy, but denied any knowledge of its contents. The envelope contained the two ounces of
methamphetamine 2 and $3,500 as described by Claytor.
Deputy Sholes testified at trial that the 53.71 grams of methamphetamine found in the
envelope was inconsistent with personal use.
Appellant testified and denied knowing the contents of the envelope. The trial court found
appellant’s testimony unworthy of belief. The court determined that appellant knew
methamphetamine was in the envelope and found her guilty of conspiracy to distribute.
This appeal follows.
ANALYSIS
Appellant’s sufficiency argument has two components: (1) the evidence does not support
the trial court’s finding that appellant was aware that the manila envelope contained
2
The drug analysis indicated 53.71 grams of methamphetamine.
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methamphetamine; and (2) no evidence supports a finding that there was an agreement between
appellant and Sprouse to distribute the drugs.
When faced with a challenge to the sufficiency of the evidence, we “‘presume the
judgment of the trial court to be correct’” and reverse only if the trial court’s decision is “‘plainly
wrong or without evidence’” to support it. Kelly v. Commonwealth, 41 Va. App. 250, 257, 584
S.E.2d 444, 447 (2003) (en banc) (quoting Davis v. Commonwealth, 39 Va. App. 96, 99, 570
S.E.2d 875, 876-77 (2002)). Put another way, a reviewing court does not “‘ask itself whether it
believes that the evidence at the trial established guilt beyond a reasonable doubt.’” Jackson v.
Virginia, 443 U.S. 307, 318-19 (1979) (emphasis in original) (quoting Woodby v. INS, 385 U.S.
276, 282 (1966)). We must instead ask whether “‘any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.’” Kelly, 41 Va. App. at 257, 584
S.E.2d at 447 (emphasis in original) (quoting Jackson, 443 U.S. at 319). “‘This familiar standard
gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony,
to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.’” Id.
at 257-58, 584 S.E.2d at 447 (quoting Jackson, 443 U.S. at 319).
The evidence clearly supports the trial court’s finding that appellant was aware of the
contents of the envelope. Claytor testified appellant saw Sprouse put the methamphetamine
inside the envelope.
“Conspiracy is defined as ‘an agreement between two or more persons by some concerted
action to commit an offense.’” Feigley v. Commonwealth, 16 Va. App. 717, 722, 432 S.E.2d
520, 524 (1993) (quoting Wright v. Commonwealth, 224 Va. 502, 505, 297 S.E.2d 711, 713
(1982)). The crime is “complete when the parties agree to commit an offense,” and “[n]o overt
act in furtherance of the underlying crime is necessary.” Gray v. Commonwealth, 260 Va. 675,
680, 537 S.E.2d 862, 865 (2000). Although no overt act is necessary to establish a conspiracy,
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the parties’ “‘overt conduct’” may support a finding of the existence of a conspiracy. Poole v.
Commonwealth, 7 Va. App. 510, 513, 375 S.E.2d 371, 372 (1988) (quoting United States v.
Harris, 433 F.2d 333, 335 (4th Cir. 1970)).
“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) (quoting United States v.
Peterson, 524 F.2d 167, 174 (4th Cir. 1975)). While proof of the existence of an agreement is an
essential element to establish the crime of conspiracy, see Fortune v. Commonwealth, 12
Va. App. 643, 647, 406 S.E.2d 47, 48 (1991), proof of an explicit agreement is not required, and
the Commonwealth may, and frequently must, rely on circumstantial evidence to establish the
conspiracy. Stevens v. Commonwealth, 14 Va. App. 238, 241, 415 S.E.2d 881, 883 (1992).
When a conviction is based on circumstantial evidence, the evidence “‘must be consistent with
guilt and inconsistent with innocence and must exclude every reasonable hypothesis of
innocence.’” Feigley, 16 Va. App. at 724, 432 S.E.2d at 525 (quoting Bishop v. Commonwealth,
227 Va. 164, 169, 313 S.E.2d 390, 393 (1984)).
At oral argument, appellant conceded that there was an agreement between appellant and
Sprouse to safeguard the envelope. However, appellant denies that the agreement involved the
distribution of drugs or that appellant knew the exact contents of the envelope. The only issue
before us, then, is the nature and content of the agreement.
We find that the evidence, when viewed in the light most favorable to the
Commonwealth, see Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537
(1975), indicates appellant knew the contents of the envelope and that she was safekeeping drugs
and cash for Sprouse. Appellant accepted the envelope without asking any questions about what
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Sprouse expected from her; Sprouse handed the envelope over to appellant without giving her
any instructions. This mutual silence as to the handling of the envelope supports the reasonable
conclusion that appellant already knew what she was expected to do, namely to keep the
envelope safely in her possession for Sprouse. The trial court could infer from appellant’s
remarks that she would guard the envelope and its contents with her life that appellant knew the
significance of her responsibility, as well as the significance and value of the items inside of the
envelope.
The question then becomes whether the agreement between appellant and Sprouse
included the distribution of methamphetamine. Taking all of the circumstances into account, we
find sufficient evidence in the record for the trial court to have reasonably concluded that
appellant knew Sprouse was intending to distribute the drugs and that appellant and Sprouse
acted together to accomplish that purpose.
First, we find that the quantity of the drugs entrusted to appellant indicates that the drugs
were not intended for personal use. By virtue of the inscription on the envelope, appellant knew
that Sprouse entrusted her with two ounces of methamphetamine. Deputy Sholes testified that
possession of that amount of methamphetamine was inconsistent with personal use. Hudak v.
Commonwealth, 19 Va. App. 260, 263, 450 S.E.2d 769, 771 (1994) (holding that, in a prosecution
for conspiracy to distribute drugs, expert testimony is necessary to show that drugs were not
intended for personal use). We find that based upon this expert testimony, the trial court was able to
reasonably conclude that appellant knew that Sprouse was intending to distribute the
methamphetamine rather than to use it personally.
Second, the envelope contained both the methamphetamine and a substantial amount of
cash, $3,500. The mere presence of drugs and a large amount of cash is indicative of a scheme
to distribute drugs. Here, the scheme to distribute drugs to another person was even more
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explicit. The inscription on the outside of the envelope detailed the quantity of the drugs, the
amount of cash, and included a name and phone number of a third person. From the presence of
the drugs, the large amount of cash and the third party’s contact information, the trial court could
reasonably infer that appellant knew Sprouse intended to transfer the drugs and the cash to
another person. Appellant did not need to know whether that third person was a buyer or a seller
of drugs; it is enough that she was aware that the drugs and cash were “in transit” to another
person and that Sprouse was in the business of exchanging drugs for money.
“Where it is shown that the defendants by their acts pursued the
same object, one performing one part and the other 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.” 16 Am. Jur. 2d Conspiracy § 42
(1979). . . . “[L]iability as a conspirator is not dependent on
knowledge of the entire scope of the conspiracy. Knowledge need
not extend to all the details of the conspiracy, the identity of the
other conspirators, the part each member of the conspiracy is to
play, or how the spoils of the conspiracy are to be divided.” 16
Am. Jur. 2d Conspiracy § 14 (1979)
Amato v. Commonwealth, 3 Va. App. 544, 552, 352 S.E.2d 4, 9 (1987) (other citation omitted).
Third, appellant’s silence when she accepted the envelope, and Sprouse’s silence when
she handed the envelope to appellant, signifies a prior agreement between the two with regard to
the envelope and its contents. It is reasonable to conclude that appellant and Sprouse had a prior
agreement about appellant’s role with regard to the envelope, and appellant knew exactly what
was expected of her when she accepted the drugs and cash for safekeeping. From appellant’s
failure to inquire about the details of the transaction, and from appellant’s statements that she
would guard the contents of the envelope with her life, the trial court could reasonably infer that
appellant knew that she was guarding the drugs and the cash as part of a larger and more
significant plan that involved the exchange of drugs for money.
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Finally, Sprouse packaged the drugs and cash in the envelope in front of appellant.
Sprouse never tried to conceal the contents of the envelope in an effort to shield appellant from
criminal liability or to prevent appellant from becoming a witness against Sprouse. From this, the
trial court was entitled to conclude that appellant was already a willing participant in the criminal
enterprise, was not a stranger to this transaction, and had previously been exposed to Sprouse’s plan
to sell the methamphetamine.
From all the circumstances, the trial court was entitled to conclude that the agreement
between appellant and Sprouse contemplated the distribution of methamphetamine and that
appellant’s role in this enterprise was to hold the drugs for safekeeping while Sprouse sold the
drugs in smaller quantities. This duty to Sprouse gave appellant a stake in the ongoing criminal
enterprise of distribution of methamphetamine. Appellant acknowledged the significance of her
responsibility by offering to guard the envelope with her life. Accordingly, we find that it was
reasonable for the trial court to conclude, under the facts of this case, that appellant and Sprouse
acted with a mutual understanding as to the unlawful distribution of methamphetamine and that
they cooperated and acted together in the accomplishment of that purpose.
The judgment of the trial court is affirmed.
Affirmed.
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