Preston Mills, Jr. v. Commonwealth ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judge Bray and Senior Judge Duff
Argued at Alexandria, Virginia
PRESTON MILLS, JR.
MEMORANDUM OPINION * BY
v. Record No. 1758-95-4 CHIEF JUDGE NORMAN K. MOON
MAY 28, 1996
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF STAFFORD COUNTY
James W. Haley, Jr., Judge
Bradford F. Johnson (Johnson & Walker, P.C.,
on brief), for appellant.
Michael T. Judge, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
Preston Mills, Jr. appeals from his conviction of
distribution of cocaine. He claims that hearsay evidence was
improperly admitted against him, and that the evidence was
insufficient to sustain his conviction. We affirm the
conviction.
On February 10, 1994, Charles Doss was working as an
undercover officer for the Stafford County Sheriff's Department.
He called Sam Brown, whom he knew by voice from prior meetings,
to discuss purchasing half an ounce of crack cocaine. Over
defense counsel's objection, Doss testified that Brown had a
source in Fredericksburg who could get cocaine for Doss and that
the source's name was "Rabbit." After a series of calls, Doss
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
and Brown agreed that they would meet at a McDonalds restaurant
and then drive to a gas station, where Brown would make the buy
for Doss. The deal was set up in that manner because Brown's
source did not want to meet face to face with Doss.
Brown and Doss met at the McDonalds at about 6:30 p.m.
Brown's girlfriend, Gina Rowe, drove him to the McDonalds. Brown
then switched to Doss' vehicle and Rowe drove alone to the gas
station, where she was to serve as a look-out. Doss had informed
Detective Ann Jett that the deal was to take place at the gas
station, and she parked nearby and observed the other cars
arriving.
During the negotiations by telephone, Doss had agreed to pay
$500 for eleven fifty dollar "rocks" of crack cocaine. On the
way to the gas station, Doss agreed to pay Brown thirty dollars
for his help in setting up the deal. Brown also asked for some
of the cocaine, and when Doss refused he suggested that he could
just take some of the cocaine before giving it to Doss. Doss
warned him not to do so.
The first car to arrive at the gas station was a white
Cadillac. Doss' car arrived next, and at Brown's direction Doss
parked facing the Cadillac. Rowe arrived last, and parked behind
Doss. It had begun to sleet, and visibility was poor. The
Cadillac's lights were on, and Doss testified that he could see
two individuals in the Cadillac other than Brown, but could not
see their faces due to the glare of the headlights. Brown
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entered the Cadillac, stayed a minute or two and returned to
Doss' car with eleven rocks of cocaine. Brown then left with
Rowe. Doss testified that he did not know whether Brown had
cocaine with him before they arrived at the gas station.
Rowe testified concerning her involvement in the
transaction. She became aware of the transaction through the
telephone conversations she heard between Brown and Doss, and
Brown and "Rabbit." Rowe identified Preston Mills as "Rabbit,"
and stated that she and Brown "dealt with him all the time."
Rowe also stated that as the Cadillac was leaving the gas
station, Mills waved to her from the passenger seat. Brown told
Rowe that he had "pinched" some of Doss' crack and had taken some
cocaine that Rabbit dropped on the floor. Rowe and Brown smoked
the stolen crack on the way home. Rowe testified that prior to
the transaction, Brown had no drugs with him that she knew of.
Doss had not met Mills prior to this transaction, but did
meet him on a subsequent occasion. Doss was with Brown and Rowe,
and Brown introduced Mills to Doss as "Rabbit."
Mills argues first that Brown's statements to Doss,
"Rabbit," and Rowe were inadmissible hearsay. The Commonwealth
contends that the statements were admissible as declarations by a
co-conspirator. When the Commonwealth has established a prima
facie case that a conspiracy has been formed, statements made by
co-conspirators are admissible against the other conspirators.
Rabeiro v. Commonwealth, 10 Va. App. 61, 65, 389 S.E.2d 731, 732
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(1990). The trial need not be on a charge of conspiracy; it is
sufficient that the crime charged was committed pursuant to the
conspiracy. See Floyd v. Commonwealth, 219 Va. 575, 581-82, 249
S.E.2d 171, 175 (1978).
The prima facie case of conspiracy must be established by
evidence independent of the hearsay. Rabeiro, 10 Va. App. at 64,
389 S.E.2d at 732. The existence of a conspiracy, like any other
fact, may be established by circumstantial evidence. Stultz v.
Commonwealth, 6 Va. App. 439, 443, 369 S.E.2d 215, 217 (1988).
In reviewing whether evidence was sufficient to establish the
existence of a conspiracy, we consider the evidence in the light
most favorable to the Commonwealth, granting to it all reasonable
inferences fairly deducible therefrom. Traverso v. Commonwealth,
6 Va. App. 172, 176, 366 S.E.2d 719, 721 (1988).
The hearsay rule excludes only those statements offered to
prove the truth of the matter asserted. Eckhart v. Commonwealth,
222 Va. 213, 216, 279 S.E.2d 155, 157 (1981). Brown's statements
to "Rabbit" on the telephone were not offered for their truth.
It is irrelevant whether Brown actually intended to meet "Rabbit"
at the gas station and pay him for cocaine. His statements to
that effect were relevant only to explain Rabbit's presence at
the gas station at the time specified by Brown. Statements
offered to show their effect on the listener are admissible for
that purpose. See Upchurch v. Commonwealth, 220 Va. 408, 409-10,
258 S.E.2d 506, 507-08 (1979); Hamm v. Commonwealth, 16 Va. App.
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150, 156, 428 S.E.2d 517, 521 (1993). Moreover, statements that
have legal consequences, such as to establish a contract, are not
hearsay when offered to prove the existence of the contractual
relationship. Id. at 156, 428 S.E.2d at 521. Therefore, Brown's
statements to "Rabbit," making an "offer" of a drug deal, were
admissible without regard to the co-conspirator exception to the
hearsay rule.
Evidence independent of the hearsay, including Brown's
statements to Rabbit, showed that in response to Doss' request
for a drug deal, Brown contacted an individual named "Rabbit" to
offer such a deal. After Brown's conversations with Rabbit, Doss
and Brown drove to the location proposed by Brown, where Mills
was waiting. Brown joined Mills in the Cadillac and returned
with eleven rocks of cocaine. Rowe, who was involved in drug
transactions with Brown, testified that she and Brown "dealt with
[Rabbit] all the time." Both Rowe and Doss confirmed that Mills
and Rabbit were the same person. This evidence, viewed in the
light most favorable to the Commonwealth, established a prima
facie case of a conspiracy between Brown and Mills. Therefore,
the testimony describing Brown's conversations with Doss and Rowe
was admissible as the declarations of a co-conspirator.
Mills also argues that the evidence was insufficient to
convict him of distribution. On appeal, we review the evidence
in the light most favorable to the Commonwealth, granting to it
all reasonable inferences fairly deducible therefrom.
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Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534,
537 (1975). In circumstantial cases the Commonwealth must
exclude every reasonable hypothesis of innocence that flows from
the evidence, but not those hypotheses that do not. See Fordham
v. Commonwealth, 13 Va. App. 235, 239, 409 S.E.2d 829, 831
(1991).
Viewed in the light most favorable to the Commonwealth, the
evidence showed that Officer Doss' contact, Sam Brown, set up a
drug transaction with Preston Mills, known as "Rabbit." The
parties met at the time and place agreed, Brown got into the car
with Mills, and emerged with the cocaine. Granting the
Commonwealth the benefit of all reasonable inferences, this
evidence is sufficient to convict Mills of distribution of
cocaine.
Mills argues that the Commonwealth did not exclude every
reasonable hypothesis of innocence because there was another
individual in the Cadillac, and because Brown could have brought
the cocaine to the gas station himself. As to the first
argument, all evidence points to Mills, not the unidentified
driver, as the man with the cocaine. Brown made the arrangements
with "Rabbit" and then met him at the gas station as planned.
Brown bragged to his girlfriend that he had stolen some cocaine
that Rabbit dropped on the floor of the car. The Commonwealth's
evidence excluded the hypothesis that the driver sold the cocaine
to Brown.
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As to the second argument, Gina Rowe testified that Brown
had his "stem" (pipe) with him, but no cocaine. As soon as Brown
stole cocaine from Doss and Rabbit, he and Rowe smoked it. This
evidence, combined with Rowe's testimony that Brown set up a drug
transaction with Rabbit, is sufficient to exclude the hypothesis
that Brown actually provided the cocaine. For these reasons, we
affirm the conviction.
Affirmed.
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