Ronald A. Parrish v. Commonwealth of Virginia ( 1999 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Willis and Lemons
Argued at Richmond, Virginia
RONALD A. PARRISH
MEMORANDUM OPINION * BY
v. Record No. 2718-97-2 JUDGE DONALD W. LEMONS
MARCH 16, 1999
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 (Office of the Public
Defender, on brief), for appellant.
Daniel J. Munroe, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Ronald A. Parrish appeals his conviction for conspiracy to
distribute cocaine, a violation of Code § 18.2-256. On appeal,
he argues that the evidence was not sufficient to support his
conviction. Because we hold that the evidence was sufficient to
find that Parrish conspired to distribute cocaine, we affirm his
conviction.
I. BACKGROUND
On December 5, 1996, Investigator Robert Elkins of the City
of Petersburg Police Department was working in an undercover
narcotics operation. He parked his vehicle near the center of
the street just before the intersection of Shore and Wilson
Streets and saw Ronald A. Parrish standing near the middle of the
*
Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
street. Parrish approached his vehicle and "asked me what I
needed." Elkins told Parrish he needed "a dime or a twenty,"
referring to ten or twenty dollars worth of cocaine. Parrish
then asked him for a ride up the street to "Green Lantern," but
Elkins refused.
Elkins "crept the car up a little bit" on Shore Street, when
a second vehicle pulled ahead of him. A passenger, later
identified as Edward A. Hines, Jr., exited the second vehicle and
the car drove away. Parrish told Elkins "[h]old on a minute,"
and Parrish jogged over to Hines. Elkins remained seated in the
vehicle. Parrish "went over to [Hines]" and "stopped and spoke
to [Hines] a minute -- or I observed [Parrish and Elkins]
appearing to be talking." Parrish and Hines looked over in
Elkins' direction. Elkins stated that "both [Parrish and Hines]
walked back over to my vehicle where I was stopped in the road."
Parrish "[was] standing less than five inches away from . . .
Hines" and "both stood outside of my half open window together."
Parrish watched Elkins' and Hines' hands as Elkins exchanged
money for "two small chunks of crack cocaine in a cigarette wrap
-- the clear outside packaging of a cigarette wrap" from Hines.
After obtaining the drugs, Elkins left Parrish and Hines standing
together in the street. Shortly thereafter, a second officer
arrested Hines and Parrish.
Parrish's version of events was similar; however, Parrish
stated, "I wasn't going to sell him [any drugs]. . . . I was
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going to basically have −− I mean, ask somebody did they have
anything, but I wasn't going to sell him nothing [sic]." Parrish
admitted to having four or five prior felony convictions.
Parrish was convicted in a bench trial of distribution of
cocaine, distribution of cocaine within 1,000 feet of school
property, and conspiracy to distribute cocaine. On appeal, he
argues that the evidence was insufficient to support his
conviction for conspiracy to distribute cocaine.
II. SUFFICIENCY OF THE EVIDENCE
When the sufficiency of the evidence is an issue on appeal,
an appellate court must view the evidence and all reasonable
inferences fairly deducible therefrom in the light most favorable
to the Commonwealth. See Cheng v. Commonwealth, 240 Va. 26, 42,
393 S.E.2d 599, 608 (1990). On appeal, the decision of a trial
court sitting without a jury is afforded the same weight as a
jury's verdict and will not be disturbed unless plainly wrong or
without evidence to support it. See King v. Commonwealth, 217
Va. 601, 604, 231 S.E.2d 312, 315 (1977).
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)
(citations omitted). Proof of a conspiracy to distribute
narcotics can be inferred by surrounding facts and circumstances.
See Moore v. Commonwealth, 25 Va. App. 277, 289, 487 S.E.2d 864,
870 (1997). In fact,
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[c]ircumstantial evidence is as acceptable to
prove guilt as direct evidence, and in some
cases, such as proof of intent or knowledge,
it is practically the only method of proof.
[A] common purpose and plan may be inferred
from a development and collocation of
circumstances. 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
with a view to its attainment, the jury will
be justified in concluding that they were
engaged in a conspiracy to effect that
object.
Amato v. Commonwealth, 3 Va. App. 544, 552, 352 S.E.2d 4, 9
(1987) (citations omitted).
Although, "[e]vidence which merely established aiding or
abetting in the commission of the distribution offense will not
suffice to prove a conspiracy . . . [t]he evidence need not show
that . . . [the defendant] knew the entire scope or details of
the plan of distribution." Moore, 25 Va. App. at 288, 487 S.E.2d
at 870 (citations omitted). In Moore, the defendant appealed his
convictions for possession of heroin with intent to distribute
and conspiracy to possess heroin with the intent to distribute.
In part, he claimed that the evidence failed to prove a
conspiracy existed between him and a co-felon. The evidence
revealed Moore's admission that he knew that the co-felon
intended to distribute heroin and his contradictory statements
about his knowledge of the contents of the bag in his pants.
We affirmed both of Moore's convictions. With respect to
the conspiracy conviction, we held, "[a]n agreement between Moore
and [his co-felon] may be inferred from the facts and
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circumstances." Id. at 289, 487 S.E.2d at 870. As we have
noted, "determinations of credibility lie within the purview of
the fact finder, who may reject a witness' testimony . . . [and]
the fact finder may conclude that the defendant lied to conceal
his guilt." Id. at 289, 487 S.E.2d at 870.
In the case now before us, Parrish argues that the evidence
was not sufficient to support his conviction for conspiracy to
distribute cocaine. Citing our decision in Feigley v.
Commonwealth, 16 Va. App. 717, 432 S.E.2d 520 (1993), he argues
that the Commonwealth failed to prove the existence of a
conspiracy between him and Hines beyond a reasonable doubt. In
Feigley, we reversed the defendant's conviction for conspiracy to
distribute narcotics, holding that when "the evidence is equally
susceptible to two constructions, one of which would support
conspiracy and another which would not, the fact finder is not
free to arbitrarily select that theory of conspiracy." Id. at
724, 432 S.E.2d at 525. Parrish contends that the evidence, even
when viewed in the light most favorable to the Commonwealth, was
equally subject to interpretations of guilt or innocence.
In reviewing the evidence in the light most favorable to the
Commonwealth, we hold that the evidence was sufficient to support
the finding that a conspiracy existed between Parrish and Hines
to sell cocaine to Elkins. We hold that the Commonwealth
excluded all reasonable hypotheses of Parrish's innocence in a
conspiracy to distribute cocaine with Hines. Parrish asked
Elkins "what he needed," and thereafter he conferred with Hines.
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Hines came to Elkins' car with Parrish and, without any further
conversation, completed the transaction. The evidence was
sufficient to find beyond a reasonable doubt that an agreement
was formed between Parrish and Hines to distribute crack cocaine
to Elkins. The conviction is affirmed.
Affirmed.
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Benton, J., dissenting.
Ronald Parrish appeals from a conviction of conspiring with
Edward A. Hines, Jr., for the purpose of distributing cocaine. I
believe the evidence proved only that Parrish aided and abetted
Hines when Hines distributed cocaine to the police officer.
Parrish was convicted of that offense. In my view, the evidence
was insufficient to prove a conspiracy.
By long standing definition, a "'[c]onspiracy is an
agreement between two or more persons by some concerted action to
commit an offense.'" Falden v. Commonwealth, 167 Va. 542, 544,
189 S.E. 326, 327 (1937) (emphasis added) (citation omitted).
"The agreement is the essence of the conspiracy offense." Zuniga
v. Commonwealth, 7 Va. App. 523, 527-28, 375 S.E.2d 381, 384
(1988). Thus, it necessarily "follows that if the Commonwealth
has failed to prove an agreement to commit an offense . . . , the
prosecution falls of its own weight." Falden, 167 Va. at 544,
189 S.E. at 327. As in every criminal prosecution for
conspiracy, the Commonwealth bears the burden of "'prov[ing]
beyond a reasonable doubt that an agreement existed.'" Feigley
v. Commonwealth, 16 Va. App. 717, 722, 432 S.E.2d 520, 524
(1993).
The police officer testified that after he stopped his
vehicle near Parrish, Parrish asked what he needed. When the
officer said $10 or $20 worth of cocaine, Parrish asked the
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officer to drive him to another location four to five blocks
away. The officer then described the following events:
[Parrish] asked for a ride, and I told him
no. I said, I didn't know him. I wasn't
going to give him a ride. At that time he
appeared that since I wouldn't give him a
ride, there wouldn't have been a transaction
made.
I crept the car up a little bit. A second
vehicle pulled up ahead of me on Shore
Street. A passenger got out of that vehicle.
The vehicle left the area. Mr. Parrish said:
Hold on a minute. He jogged over to the
second individual . . . .
I stayed in the vehicle. . . . He went
over to the second individual, who we later
identified as Edward Hines. He stopped and
spoke to him a minute -- or I observed them
appearing to be talking. Their mouths were
moving. They looked in my direction.
Both individuals walked back over to my
vehicle where I was stopped in the road. Mr.
Parrish, standing less than five inches away
from Mr. Hines . . . .
* * * * * * *
I observed [Parrish's] eyes looking in
that direction at a transaction that occurred
between me and Mr. Hines.
I exchanged $20 of police department funds
for two small chunks of crack cocaine in a
cigarette wrap -- the clear outside packaging
of a cigarette wrap -- with Mr. Hines. At
which time after I obtained the drugs, I left
the area leaving Mr. Hines and Mr. Parrish
standing in the street together.
No other evidence proved any further involvement by Parrish.
As in Feigley, "[t]here is no evidence to prove . . . that
[Parrish] and [Hines] had prearranged that they would distribute
drugs or that [Parrish] would 'run' drugs for [Hines]." 16 Va.
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App. at 723, 432 S.E.2d at 524. Indeed, the evidence suggests
that Hines' appearance was fortuitous and that his conversation
with Parrish was unplanned. In any event, because the evidence
failed to prove the nature of the conversation between Parrish
and Hines, the evidence is consistent with the hypothesis that
Parrish, knowing the officer would not drive five blocks to buy
cocaine from Parrish, informed Hines that a customer was sitting
in the vehicle who wanted to purchase $10 or $20 worth of
cocaine. Significantly and simply put, the evidence failed to
prove an agreement.
Where evidence in the record "'is equally susceptible of two
interpretations one of which is consistent with the innocence of
the accused, [the trier of fact] cannot arbitrarily adopt that
interpretation which incriminates [the accused].'" Corbett v.
Commonwealth, 210 Va. 304, 307, 171 S.E.2d 251, 253 (1969)
(citation omitted). "On this record, it is equally, if not more,
plausible that . . . [Parrish], who had been approached by [the
officer], simply facilitated a single drug sale between [Hines]
and [the officer]." Feigley, 16 Va. App. at 723, 432 S.E.2d at
524. In other words, Parrish "was simply aiding and abetting in
the drug sale." See id.The evidence leads only to speculation, is not wholly
consistent with Parrish's guilt of the conspiracy offense, and
certainly is not wholly inconsistent with innocence of that
offense. See Bishop v. Commonwealth, 227 Va. 164, 169, 313
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S.E.2d 390, 393 (1984). Suspicion that an accused has committed
an offense is insufficient to prove guilt beyond a reasonable
doubt. Id. at 170, 313 S.E.2d at 393. Therefore, I would
reverse the conspiracy conviction. I dissent.
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