Waverly Yates, Jr. v. Commonwealth ( 1998 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Benton and Elder
Argued at Richmond, Virginia
WAVERLY YATES, JR.
MEMORANDUM OPINION * BY
v. Record No. 1962-97-2 CHIEF JUDGE JOHANNA L. FITZPATRICK
JUNE 30, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF NOTTOWAY COUNTY
Thomas V. Warren, Judge
Wayne R. Morgan, Jr., for appellant.
Kathleen B. Martin, Assistant Attorney
General (Mark Earley, Attorney General, on
brief), for appellee.
Waverly Yates, Jr. (appellant) was convicted in a bench
trial of conspiracy to distribute cocaine in violation of Code
§ 18.2-256. The sole issue raised is whether the evidence was
sufficient to sustain his conviction. For the following reasons,
we reverse the conviction.
I.
On appeal, "the evidence must be viewed in the light most
favorable to the Commonwealth, granting to it all reasonable
inferences fairly deducible therefrom." Feigley v. Commonwealth,
16 Va. App. 717, 722, 432 S.E.2d 520, 523-24 (1993). Officer
John McNabb of the Blackstone Police Department monitored
appellant's home two days per week for a two-week period and
observed activity that appeared to be drug transactions. On
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
May 3, 1996, McNabb sent an informant into appellant's home to
make a controlled drug buy. When the informant emerged, he gave
McNabb "two clear ziplock packets with off-white rock material"
believed to be "crack-cocaine." As a result of the buy, McNabb
obtained a search warrant for the home.
When the police entered appellant's home, two men ran
outside into the alley behind the house and were not caught.
Appellant remained in the house and was arrested. The search
revealed four packets of marijuana, marijuana residue, and
packaging materials in the house, and several packets of
marijuana in the alley. Appellant also turned over to police a
"small" amount of marijuana in his possession.
According to McNabb's trial testimony, appellant "stated to
me that he knew, the guys came from Hopewell to sell out of his
house, he said he didn't get any profit from it." Appellant told
McNabb the men were relatives of his wife's family and "[h]e
stated it was a profit motive . . . they were making money from
it." When McNabb told appellant about the controlled drug buy
earlier that evening, appellant did not respond directly, "he
just reiterated that he let them sell out of the house, but he
didn't get any money from it." There was no evidence that
appellant was involved in the controlled drug buy.
At trial, appellant denied making any such statements to the
officer. The trial court denied appellant's motion to strike,
stating: "Bottom line is I believe [McNabb's] testimony. I
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believe that you told him those people were there to sell drugs
at your house and that you didn't get any money out of it. I
believe you told that and I believe, under the law, that is
sufficient to establish a conspiracy." Appellant was convicted
of conspiring to distribute cocaine and was sentenced to five
years in prison, with four years suspended.
II.
Appellant contends the evidence was insufficient as a matter
of law to sustain his conviction. We agree.
A conspiracy is "'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)
(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.'" Zuniga v.
Commonwealth, 7 Va. App. 523, 527, 375 S.E.2d 381, 384 (1988)
(citation omitted). "[T]he Commonwealth must prove 'the
additional element of preconcert and connivance not necessarily
inherent in the mere joint activity common to aiding and
abetting.'" Id. at 527, 375 S.E.2d at 384 (citation omitted).
"'The agreement is the essence of the conspiracy offense.'"
Hudak v. Commonwealth, 19 Va. App. 260, 262, 450 S.E.2d 769, 771
(1994) (citation omitted). "'[T]he Commonwealth must prove
beyond a reasonable doubt that an agreement existed.'" Williams
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v. Commonwealth, 12 Va. App. 912, 915, 407 S.E.2d 319, 321 (1991)
(citation omitted).
Viewed in the light most favorable to the Commonwealth, the
evidence established only that appellant knew the others were
selling out of his house, but failed to establish his prior
agreement to participate in the offense. Proof of knowledge
alone is insufficient to sustain a conviction of conspiracy to
distribute cocaine. By allowing his home to be used for cocaine
distribution, appellant may be considered as aiding and abetting
the distribution, but the evidence falls short of establishing
the concert of action necessary for conspiracy. See Zuniga v.
Commonwealth, 7 Va. App. 523, 375 S.E.2d 381 (1988).
For the foregoing reasons, we reverse and dismiss.
Reversed.
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