Kevin Lee Green v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: October 23, 2001
• Docket: 2263002
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judges Elder and Clements Argued at Richmond, Virginia

KEVIN LEE GREEN MEMORANDUM OPINION * BY v. Record No. 2263-00-2 CHIEF JUDGE JOHANNA L. FITZPATRICK OCTOBER 23, 2001 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY Buford M. Parsons, Jr., Judge Designate

Linwood T. Wells, III, for appellant.

Kathleen B. Martin, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

Kevin Lee Green (appellant) was convicted in a jury trial of

conspiracy to possess with intent to distribute more than five

pounds of marijuana in violation of Code §§ 18.2-248.1 and

18.2-256. 1 On appeal he contends (1) that the trial court erred

in accepting the jury verdict finding appellant guilty of

conspiracy with intent to distribute more than five pounds of

marijuana as a principal in the "second degree" and (2) the

evidence was insufficient to convict appellant as a principal in

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. 1 Appellant was also charged with possession with intent to distribute more than five pounds of marijuana and transporting more than five pounds of marijuana into the Commonwealth. Appellant was found not guilty of both charges. the second degree to conspiracy. For the following reasons, we

affirm the judgment of the trial court.

I. BACKGROUND

Under familiar principles of appellate review, we examine the

evidence in the light most favorable to the Commonwealth, the

prevailing party below, granting to it all reasonable inferences

fairly deducible therefrom. See Juares v. Commonwealth, 26 Va.

App. 154, 156, 493 S.E.2d 677, 678 (1997).

A. OFFENSE

So viewed, the evidence established that on January 7, 1999,

a person using the name of Tricia Williams shipped two large boxes

from La Mesa, California via Federal Express to Box 233 at Mail

Boxes Etc. (the store), 12750 Jeff Davis Highway in Chesterfield

County, Virginia. The box was jointly registered to appellant and

Ross Robinson (Robinson) under the name "Green Film Editors," an

inactive business. Robinson and appellant had previously been

involved together in the drug trade. The police intercepted the

packages, determined that they contained fifty pounds of

marijuana, and set up a controlled delivery with an officer

working undercover at the store.

Five days later on January 12, 1999, appellant, in response

to a page from Robinson, agreed to pick up the packages from the

store. Robinson told him that "Jay" had tried earlier to pick up

the package but was unable to do so because he was not an

authorized signatory on the account. Appellant knew that Jay was

- 2 - Robinson's connection for obtaining drugs. Appellant agreed to

meet Jay at Denny's. At the meeting Jay asked appellant to get

the package and give it to him. Appellant followed Jay to the

shopping complex where Mail Boxes Etc. was located. Jay pulled

into a nearby McDonald's while appellant went to the store, signed

for and picked up the packages. The undercover officer helped

appellant place the packages in his vehicle. When appellant

started to drive away, the police stopped and arrested him.

After receiving Miranda warnings, appellant told the police

that when he saw the size of the packages he knew there were

"probably drugs in the boxes." He described his meeting with Jay

but refused to divulge what they talked about before he went into

the store.

At trial, appellant testified that he had not been expecting

such large boxes and "had no idea" of their contents. He claimed

he signed for the packages without examining them and denied

telling the police he thought the boxes probably contained drugs.

B. JURY VERDICT

The trial court gave Instruction 6 without objection. It

stated:

A principal in the first degree is the person who actually commits the crime. A principal in the second degree is a person who is present, aiding and abetting, by helping in some way in the commission of the crime. Presence and consent alone is not sufficient to constitute aiding and abetting. It must be shown that the defendant intended his words, gestures, signals or actions to in

- 3 - some way encourage, advise, or urge, or in some way to help the person committing the crime to commit it. A principal in the second degree is liable for the same punishment as the person who actually committed the crime.

During deliberations, the jury asked the trial court whether

this instruction applied to all three charges. Without objection

from appellant, the trial judge responded, "It goes to all three

charges." The jury asked the judge a follow-up question, "So any

one of the three we can apply this to, it doesn't have to be to

all three?" The trial judge responded "that's within your

discretion."

When reading the verdict on the conspiracy charge the

following colloquy took place between the court and the foreperson

of the jury:

THE COURT: On the charge, we the jury -- the remaining charge -- we the jury, find the defendant guilty of the crime of conspiracy to possess with intent to distribute more than five pounds of marijuana as charged in the indictment. They have added "second degree," and it is signed by Mr. Simmons as the foreperson of the jury. I will have to ask members of the jury, I think I know what you mean by second degree, but whether he be a principal in the first degree or second degree doesn't matter as to the finding. Do you want to tell me anything? What do you mean by second degree? There's a principal in the second degree, is that what the jury --

THE FOREPERSON: Right, the principal in the second degree. Actually, I believe, Your Honor, we were under the assumption that a

- 4 - second degree would be lesser of whatever sentence there may be than a first degree.

THE COURT: Well, the instruction told you exactly the opposite. It may go as to how you handle that in the sentencing aspect of the case.

(Emphasis added.)

The trial court asked appellant if he had any objection to

asking the foreperson to strike the second degree. Appellant

noted an objection to striking the "second degree" and argued that

the jury had in fact found him not guilty. The judge declared to

counsel, "[t]hey found him guilty." The trial court then polled

the jury with each member answering affirmatively that they

concurred in the verdict. The case was continued until the next

morning for sentencing.

When the court reconvened the following morning, appellant

requested a mistrial on the ground that the jury had ignored the

instruction given to them regarding principals in the second

degree and also argued that the evidence was insufficient as a

matter of law to convict. 2 The trial court overruled appellant's

motion. At the penalty phase appellant was sentenced to five

years incarceration and ordered to pay a fine of $500. The final

2 Although the Commonwealth contends that appellant failed to object to the court's suggestion that the jury strike "second degree" from the verdict form when they returned from deliberations and, thus, appellant's claim is barred by Rule 5A:18, we find that appellant's objection followed by his continued objection the following morning was sufficiently timely in this case to avoid a Rule 5A:18 bar.

- 5 - sentencing order simply finds appellant guilty of "conspiracy to

possess marijuana with the intent to distribute." Appellant

appeals from this conviction.

II. ANALYSIS

Appellant contends (1) that the jury erred by failing to

follow the instructions given by the trial judge when they added

the words "second degree" to the verdict form and (2) that the

evidence was insufficient to convict him as a principal in the

second degree to the crime of conspiracy to possess marijuana with

the intent to distribute.

A. JURY VERDICT

"In determining the validity of a jury's verdict, it is

necessary to discern the true intent of the jury." Spear v.

Commonwealth, 221 Va. 450, 454, 270 S.E.2d 737, 740 (1980). The

reviewing court will "disregard technical irregularities in a

verdict where the jury's finding is otherwise clear." Id.

Further, the court will "'go far in the disregard of defects in

verdicts which have been accepted by the trial courts, but from

which, notwithstanding such defects, the real finding of the jury

may be determined, though it may not be accurately couched in the

technical language of the law.'" Id. (quoting Williams v.

Commonwealth, 153 Va. 987, 994, 151 S.E. 151, 153 (1930)).

In the instant case, the record reflects that the trial court

accurately ascertained that the jury intended to convict appellant

of the underlying conspiracy charged, but erroneously added the

- 6 - "second degree" language in an attempt to impose a lesser

sentence. The trial court correctly informed the jury that this

was a sentencing concern and could be addressed in the separate

penalty phase. After this clarification, the trial judge polled

the jury and each jury member affirmed that it was his or her

verdict. Any confusion on the part of the jury was cured by the

judge's instructing the jury about the meaning of "second degree"

before the sentencing phase. The jury imposed the minimum

statutory penalty which was consistent with their finding of guilt

on the underlying conspiracy charge and their interest in

mitigating punishment. Thus, we find no error.

B. SUFFICIENCY OF THE EVIDENCE

Appellant next contends that the evidence was insufficient

to convict him as a principal in the second degree. However,

because we hold that the verdict reflected a finding of guilt as

a principal conspirator, we address the sufficiency of the

evidence as a whole.

In assessing sufficiency of the evidence:

[W]e examine the evidence in the light most favorable to the Commonwealth. See Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987). The credibility of a witness and the inferences to be drawn from proven facts are matters solely for the fact finder's determination. See Long v. Commonwealth, 8 Va. App. 194, 199, 379 S.E.2d 473, 476 (1989). In its role of judging witness credibility, the fact finder is entitled to disbelieve the self-serving testimony of the accused and to conclude that the accused is lying to conceal his

- 7 - guilt. See Speight v. Commonwealth, 4 Va. App. 83, 88, 354 S.E.2d 95, 98 (1987) (en banc).

Marable v. Commonwealth, 27 Va. App. 505, 509-10, 500 S.E.2d

233, 235 (1998). "The jury's verdict may not be disturbed

unless it is plainly wrong or without evidence to support it."

Hills v. Commonwealth, 33 Va. App. 442, 456, 534 S.E.2d 337, 344

(2000).

A conspiracy is "'an agreement between two or more persons by

some concerted action to commit an offense.'" Ramsey v.

Commonwealth, 2 Va. App. 265, 270, 343 S.E.2d 465, 469 (1986)

(quoting Falden v. Commonwealth, 167 Va. 542, 544, 189 S.E. 326,

327 (1937)). "In Virginia, the crime of conspiracy is complete

when the parties agree to commit an offense. No overt act in

furtherance of the underlying crime is necessary." Gray v.

Commonwealth, 260 Va. 675, 680, 537 S.E.2d 862, 865 (2000).

"Liability as a conspirator is not dependent upon knowledge of the

details and the scope of the conspiracy or the identity and role

of each co-conspirator." Barber v. Commonwealth, 5 Va. App. 172,

179, 360 S.E.2d 888, 891 (1987).

In the instant case the evidence was sufficient to

establish that appellant conspired with others to possess and

distribute the fifty pounds of marijuana. A number of

individuals were involved in the conspiracy. This includes

Robinson, who called appellant and requested the pickup, Jay,

who met with appellant and followed him to the store, and the

- 8 - source who shipped the drugs. Appellant had previously sold

cocaine with Robinson and knew that Robinson was selling

marijuana. He followed Robinson's instructions and picked up

the packages to bring them to Robinson's house. Before he

retrieved the boxes from Mail Boxes Etc., appellant met with

Jay, a person he knew as Robinson's connection for obtaining

drugs. The evidence establishes appellant as an active

participant in the conspiracy to pick up the marijuana.

Additionally, the jury was entitled to reject appellant's

testimony that he had "no idea" what was in the two large boxes

and conclude that he was lying to conceal his guilt. See

Speight, 4 Va. App. at 88, 354 S.E.2d at 98. Sufficient

evidence supports appellant's conviction of conspiracy to

possess marijuana with intent to distribute.

Affirmed.

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