Armando Gonzales-Loya v. Commonwealth of Virginia ( 2000 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Bray and Annunziata
ARMANDO GONZALES-LOYA
MEMORANDUM OPINION * BY
v. Record No. 1670-99-4 JUDGE RICHARD S. BRAY
JUNE 20, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF SHENANDOAH COUNTY
H. Selwyn Smith, Judge Designate
(Barry D. Murphy, on brief), for appellant.
Appellant submitting on brief.
(Mark L. Earley, Attorney General;
Virginia B. Theisen, Assistant Attorney
General, on brief), for appellee. Appellee
submitting on brief.
Armando Gonzales-Loya (defendant) was convicted in a bench
trial of conspiracy to distribute cocaine in violation of Code
§ 18.2-256. On appeal, he challenges the sufficiency of the
evidence to support the conviction. Finding the evidence
sufficient, we affirm the trial court.
The parties are fully conversant with the record, and this
memorandum opinion recites only those facts necessary to a
disposition of the appeal.
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
I.
In reviewing the sufficiency of the evidence, we consider
the record "'in the light most favorable to the Commonwealth,
giving it all reasonable inferences fairly deducible therefrom.
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 . . . .'"
Watkins v. Commonwealth, 26 Va. App. 335, 348, 404 S.E.2d 856,
866 (1998) (citation omitted). The credibility of the
witnesses, the weight accorded testimony, and the inferences to
be drawn from proven facts are matters to be determined by the
fact finder. See Long v. Commonwealth, 8 Va. App. 194, 199, 379
S.E.2d 473, 476 (1989). The judgment of the trial court will
not be set aside unless plainly wrong or unsupported by the
evidence. See Code § 8.01-680.
Viewed accordingly, the instant record discloses that, in
early December, 1998, Amy Sue Burker accompanied her sister,
Tammy Turner, to the "Blue Ridge Motel" in Shenandoah County.
Upon arrival, Turner, then in possession of $1,100 in cash,
entered a room at the motel. Turner soon exited, advised Burker
"it was okay to come in," and the sisters joined defendant,
"Lolo," in the room. Burker was unacquainted with Lolo, but
knew this "was not [Turner's] first meeting" with him.
Following undisclosed discussion among the three, "a
telephone call was made" by defendant and, "half an hour" later,
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an unidentified "gentleman" arrived at the room. Turner and the
man immediately "went into the bathroom," "had conversation"
during which "the money was exchanged," and returned after "five
minutes, tops." Turner and defendant then discussed "drugs
. . . she had given" defendant, and related money he was "to
give to her, to give to this other gentleman." After defendant
assured Turner "he had taken care of it," the sisters departed
the motel, with Turner in possession of a "plastic baggie"
containing "a rock of a white powder substance," and no money.
Later in December, Burker and Turner returned to the motel.
On this occasion, Burker remained "outside" while Turner
"dropped off" an undisclosed amount of money and "[g]ot more of
the white powder substance in the baggie." 1
On December 7, 1998, Burker contacted Deputy Sheriff
Alfred J. Buynar to discuss her "sister and drugs." Buynar
contacted law enforcement officers involved with the "Northwest
Regional Drug Task Force" and arranged a joint meeting with
Burker. The officers suggested Burker "wear [a] wire" and
deliver $1,400 "marked money" to defendant at the motel room to
"pay off [her] sister's debt" "for something that had already
been fronted." Burker agreed, was provided the necessary
equipment and cash, and proceeded to the Blue Ridge Motel to
contact defendant.
1
Burker identified the "substance" repeatedly referenced in
the record as "coke," "a drug," an "illegal substance."
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When Burker entered the motel room, defendant was present,
together with a man identified only as "Valbosa" or
"Villalobos," unable to "speak English." Burker asked defendant
"how much [her] sister owed." When defendant purportedly
"translate[d]" Burker's comments for the other man, the man
"picked up" "some kind of electronic device," spoke "back and
forth" with defendant, and defendant reported to Burker that her
sister "owed $1,700." Burker then paid defendant the police
funds and requested that he "front" some "[c]oke" to her. In
response, defendant explained, "they didn't have none. That
they were waiting on [Turner's] money." However, he instructed
Burker to "call the next day, at twelve o'clock, and [she] could
arrange a time for the next night, to come over and get the
powder substance."
As a result of Burker's undercover activity, a search
warrant was obtained and executed at the motel room, still
occupied by defendant and the man. During the attendant search,
the officers seized "a little digital scale," with cocaine
residue, from beneath a bed, "a box of sandwich bags," "a two
hundred-gram weight," a notepad containing a "list of . . .
numbers," and "two twenty dollar phone cards," items which
Investigator David Paul Mason of the drug task force described,
without objection, as common to "drug dealers." The "marked"
currency was found under a refrigerator.
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During the search, Mason answered the telephone on five
occasions, with each caller asking to speak with "Tony or Lolo."
Responding in a voice disguised "to sound like a Mexican," Mason
advised, "they were not [here], that they would be back in an
hour" and "ask them if they were looking." The callers "would
say yes or no, or whatever," and several indicated "that they
would come to the hotel room." "[A] total of six people came to
the room that night and early morning while [they] were doing
the search warrant," including Courtland Lee Polk, III, and
James Robert Clark, III.
Polk and Clark testified that they came to the motel in the
early morning of December 8, 1998, after first telephoning,
intending to purchase "[t]hree and a half grams of cocaine" for
$200 from defendant. The two men had engaged in a like
transaction with defendant during the previous week, also at the
motel. Each acknowledged the powder gave them a "buzz," and
Clark, an admitted user of cocaine for "about four years,"
recalled that the "powder" previously purchased from defendant
produced "the same results" as "coke."
II.
"A conspiracy is 'an agreement between two or more persons
by some concerted action to commit an offense.'" Smith v.
Commonwealth, 19 Va. App. 594, 598, 453 S.E.2d 572, 575 (1995)
(citations omitted). "There can be no conspiracy without an
agreement, and the Commonwealth must prove beyond a reasonable
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doubt that an agreement existed." Floyd v. Commonwealth, 219
Va. 575, 580, 249 S.E.2d 171, 174 (1978) (citation omitted).
Thus, "[i]n 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) (citation omitted). However,
"[p]roof of an explicit agreement is not required" but "may, and
frequently must, rely on circumstantial evidence," inferences
drawn from "'overt actions'" and a "'collocation of
circumstances,'" which evince agreement upon a "'common purpose
and plan.'" Combs v. Commonwealth, 30 Va. App. 778, 787, 520
S.E.2d 388, 392 (1999) (citation omitted).
"As a general rule a single buyer-seller relationship,
standing alone, does not constitute a conspiracy." Zuniga, 7
Va. App. at 528, 375 S.E.2d at 385. "If, however, the evidence
demonstrates: (1) 'that the seller knows the buyer's intended
illegal use,' and (2) 'that by the sale the seller intends to
further, promote and cooperate in the venture,' the existence of
a conspiracy to distribute between a seller and a buyer, inter
se, has been proved." Id. at 529, 375 S.E.2d at 385 (citation
omitted). Or, "if two or more people agree in advance to act in
concert to sell drugs, where [for example] one serves as the
supplier and the other as the 'runner,' an agreement to
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distribute drugs exists and a conspiracy has been proven."
Feigley v. Commonwealth, 16 Va. App. 717, 723, 432 S.E.2d 520,
524 (1993).
Here, the evidence sufficiently established a conspiracy
between sellers to distribute cocaine to Turner, Burker and
others. The initial encounter between the sisters and
defendant, during which defendant summoned an unidentified man
to the room to facilitate a sale of cocaine to Turner, together
with related conversation, clearly established an agreement
between the two men to distribute the drug. Burker's final
contact with defendant, coordinated with police, provided
further proof that defendant and another shared an interest in
Turner's debt for cocaine previously purchased from defendant.
Moreover, when Burker asked defendant to "front her" cocaine,
his response that "they didn't have none" because "they were
waiting on Turner's money" to re-supply clearly reflected
agreement, preconcert and connivance with others. (Emphasis
added.) Such circumstances, aided by the presence of
paraphernalia usual in drug trade and the numerous contacts at
the motel room by persons seeking to purchase cocaine,
sufficiently supports the finding of a conspiracy between
defendant and another to distribute the drug.
Accordingly, we affirm the trial court.
Affirmed.
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