COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Overton and Senior Judge Duff Argued at Alexandria, Virginia
TERRY JANSEN FORNEY MEMORANDUM OPINION * BY v. Record No. 2107-97-4 JUDGE CHARLES H. DUFF DECEMBER 22, 1998 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF WINCHESTER John E. Wetsel, Jr., Judge
David Rosenblum (Rosenblum & Rosenblum, L.L.C., on brief), for appellant. Ruth Ann Morken, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.
Terry Jansen Forney (appellant) was convicted in a jury
trial of conspiracy to distribute marijuana. He contends that
the evidence was insufficient to support the conviction. We
agree, reverse and dismiss the conviction.
I.
Appellant mailed packages of marijuana to Carolyn and
Jeffrey Pinos on numerous occasions between January 1, 1992 and
December 31, 1995. The packages were delivered by regular mail
and were addressed to Jeffrey Pinos. The packages, typically
weighing about two pounds, were fourteen to twenty inches in
length, and were one to two feet deep. Shirley Kerns, the
Pinoses' postal carrier, recalled delivering large packages
addressed to Jeffrey Pinos "every couple of weeks," some of which * Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. weighed "30 pounds, 25, 30, maybe not that heavy."
The Pinoses paid appellant for the marijuana in different
ways: by making large cash payments into two of appellant's
credit card accounts, by sending money directly to appellant, or
by delivering the money to appellant in person. After receiving
the marijuana, Jeffrey Pinos would weigh and package it for
resale. The Pinoses sold varying quantities of the marijuana to
several different people. On February 22, 1995, Linda Cortez, operator of a
first-class postal business, opened a box addressed to appellant
and discovered a large sum of money rolled and secured with
rubber bands and wrapped in newspaper. Investigator Thomas
Frazier responded to Cortez's call to the police. The box, which
contained $7,000 in currency, had been sent to appellant by
Carolyn Pinos. The Pinoses explained that they sent the money to
pay for a motorcycle.
The seizure of the $7,000 prompted the execution of a search
warrant at the Pinoses' home, after which Carolyn and Jeffrey
Pinos were arrested.
II.
When considering the sufficiency of the evidence on appeal
in a criminal case, we view the evidence in the light most
favorable to the Commonwealth, granting to it all reasonable
inferences fairly deducible therefrom. See Higginbotham v. Commonwealth, 216 Va. 349, 353, 218 S.E.2d 534, 537 (1975). In
- 2 - 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 and all fair inferences.
See Cirios v. Commonwealth, 7 Va. App. 292, 295, 373 S.E.2d 164,
165 (1988). The credibility of the witnesses, the weight
accorded to testimony, and the inferences to be drawn from the
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 trial court's judgment will not be set aside
unless the judgment is plainly wrong or without evidence to
support it. See Josephs v. Commonwealth, 10 Va. App. 87, 99, 390
S.E.2d 491, 497 (1990) (en banc).
A conspiracy is an agreement between two or more persons to
commit an offense by some concerted action. See Zuniga v.
Commonwealth, 7 Va. App. 523, 527, 375 S.E.2d 381, 384 (1988).
"In 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.'" Id. (quoting United States v. Peterson, 524 F.2d
167, 174 (4th Cir. 1975)). "The agreement is the essence of the
conspiracy offense." Id. A single buyer-seller relationship
does not constitute a conspiracy. See id. at 528, 375 S.E.2d at
385.
The existence of a conspiracy is proved if "the evidence
- 3 - 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].'" Id. at 529,
375 S.E.2d at 385 (quoting Direct Sales Co. v. United States, 319
U.S. 703, 711 (1943)).
Viewing the evidence in the light most favorable to the
Commonwealth, the evidence failed to meet this two-part test.
First, no direct evidence proved that appellant knew of the
Pinoses' intended illegal use of distributing the marijuana to
third parties after they purchased it from appellant. The
evidence showed that Carolyn and Jeffrey Pinos bought marijuana
from appellant regularly and that they personally used marijuana
heavily. When appellant visited them, he would bring marijuana
in his backpack and share it with them. There was no evidence
that appellant ever saw the Pinoses package the marijuana for
resale, or that appellant saw anything that would indicate that
the Pinoses were reselling the marijuana. Assuming, without deciding, that the ongoing relationship
between the parties and the quantity of marijuana shipped would
support an inference that appellant knew, or should have known,
that the Pinoses were not consuming all of the contraband, that
does not end our inquiry. There was insufficient evidence to
satisfy the second prong of the Zuniga test, that by the sale,
appellant intended to further, promote and cooperate in the
venture. The evidence showed that appellant sent marijuana to
- 4 - the Pinoses, that the Pinoses paid him for the marijuana, and
that occasionally, the Pinoses would "make a payment" when
appellant needed money. There was no evidence that appellant and
the Pinoses had prearranged that they would distribute marijuana,
or that appellant had any interest in the success of the Pinoses'
resale of the marijuana.
Apropos to the present issue is the case of Hudak v.
Commonwealth, 19 Va. App. 260, 450 S.E.2d 769 (1994), where we
reversed a conviction of conspiracy to distribute LSD. Susan
Hudak sold the drug to Scott Short through the mail. The
relationship continued for more than twelve months. On one
occasion, 2,000 hits of LSD were sent to Short. After holding
that expert testimony was necessary to show that the quantity was
beyond that needed for Short's personal use, we noted: Neither the ongoing relationship between appellant and Short, nor the extension of credit from Short to appellant, provided sufficient evidence with which the jury could have reasonably concluded that a conspiracy to distribute existed.
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COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Overton and Senior Judge Duff Argued at Alexandria, Virginia
TERRY JANSEN FORNEY MEMORANDUM OPINION * BY v. Record No. 2107-97-4 JUDGE CHARLES H. DUFF DECEMBER 22, 1998 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF WINCHESTER John E. Wetsel, Jr., Judge
David Rosenblum (Rosenblum & Rosenblum, L.L.C., on brief), for appellant. Ruth Ann Morken, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.
Terry Jansen Forney (appellant) was convicted in a jury
trial of conspiracy to distribute marijuana. He contends that
the evidence was insufficient to support the conviction. We
agree, reverse and dismiss the conviction.
I.
Appellant mailed packages of marijuana to Carolyn and
Jeffrey Pinos on numerous occasions between January 1, 1992 and
December 31, 1995. The packages were delivered by regular mail
and were addressed to Jeffrey Pinos. The packages, typically
weighing about two pounds, were fourteen to twenty inches in
length, and were one to two feet deep. Shirley Kerns, the
Pinoses' postal carrier, recalled delivering large packages
addressed to Jeffrey Pinos "every couple of weeks," some of which * Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. weighed "30 pounds, 25, 30, maybe not that heavy."
The Pinoses paid appellant for the marijuana in different
ways: by making large cash payments into two of appellant's
credit card accounts, by sending money directly to appellant, or
by delivering the money to appellant in person. After receiving
the marijuana, Jeffrey Pinos would weigh and package it for
resale. The Pinoses sold varying quantities of the marijuana to
several different people. On February 22, 1995, Linda Cortez, operator of a
first-class postal business, opened a box addressed to appellant
and discovered a large sum of money rolled and secured with
rubber bands and wrapped in newspaper. Investigator Thomas
Frazier responded to Cortez's call to the police. The box, which
contained $7,000 in currency, had been sent to appellant by
Carolyn Pinos. The Pinoses explained that they sent the money to
pay for a motorcycle.
The seizure of the $7,000 prompted the execution of a search
warrant at the Pinoses' home, after which Carolyn and Jeffrey
Pinos were arrested.
II.
When considering the sufficiency of the evidence on appeal
in a criminal case, we view the evidence in the light most
favorable to the Commonwealth, granting to it all reasonable
inferences fairly deducible therefrom. See Higginbotham v. Commonwealth, 216 Va. 349, 353, 218 S.E.2d 534, 537 (1975). In
- 2 - 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 and all fair inferences.
See Cirios v. Commonwealth, 7 Va. App. 292, 295, 373 S.E.2d 164,
165 (1988). The credibility of the witnesses, the weight
accorded to testimony, and the inferences to be drawn from the
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 trial court's judgment will not be set aside
unless the judgment is plainly wrong or without evidence to
support it. See Josephs v. Commonwealth, 10 Va. App. 87, 99, 390
S.E.2d 491, 497 (1990) (en banc).
A conspiracy is an agreement between two or more persons to
commit an offense by some concerted action. See Zuniga v.
Commonwealth, 7 Va. App. 523, 527, 375 S.E.2d 381, 384 (1988).
"In 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.'" Id. (quoting United States v. Peterson, 524 F.2d
167, 174 (4th Cir. 1975)). "The agreement is the essence of the
conspiracy offense." Id. A single buyer-seller relationship
does not constitute a conspiracy. See id. at 528, 375 S.E.2d at
385.
The existence of a conspiracy is proved if "the evidence
- 3 - 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].'" Id. at 529,
375 S.E.2d at 385 (quoting Direct Sales Co. v. United States, 319
U.S. 703, 711 (1943)).
Viewing the evidence in the light most favorable to the
Commonwealth, the evidence failed to meet this two-part test.
First, no direct evidence proved that appellant knew of the
Pinoses' intended illegal use of distributing the marijuana to
third parties after they purchased it from appellant. The
evidence showed that Carolyn and Jeffrey Pinos bought marijuana
from appellant regularly and that they personally used marijuana
heavily. When appellant visited them, he would bring marijuana
in his backpack and share it with them. There was no evidence
that appellant ever saw the Pinoses package the marijuana for
resale, or that appellant saw anything that would indicate that
the Pinoses were reselling the marijuana. Assuming, without deciding, that the ongoing relationship
between the parties and the quantity of marijuana shipped would
support an inference that appellant knew, or should have known,
that the Pinoses were not consuming all of the contraband, that
does not end our inquiry. There was insufficient evidence to
satisfy the second prong of the Zuniga test, that by the sale,
appellant intended to further, promote and cooperate in the
venture. The evidence showed that appellant sent marijuana to
- 4 - the Pinoses, that the Pinoses paid him for the marijuana, and
that occasionally, the Pinoses would "make a payment" when
appellant needed money. There was no evidence that appellant and
the Pinoses had prearranged that they would distribute marijuana,
or that appellant had any interest in the success of the Pinoses'
resale of the marijuana.
Apropos to the present issue is the case of Hudak v.
Commonwealth, 19 Va. App. 260, 450 S.E.2d 769 (1994), where we
reversed a conviction of conspiracy to distribute LSD. Susan
Hudak sold the drug to Scott Short through the mail. The
relationship continued for more than twelve months. On one
occasion, 2,000 hits of LSD were sent to Short. After holding
that expert testimony was necessary to show that the quantity was
beyond that needed for Short's personal use, we noted: Neither the ongoing relationship between appellant and Short, nor the extension of credit from Short to appellant, provided sufficient evidence with which the jury could have reasonably concluded that a conspiracy to distribute existed. The transactions between appellant and Short simply lacked "the essential element of an agreement between the two parties to commit a subsequent distribution offense together." Feigley [v. Commonwealth], 16 Va. App. [717] at 722, 432 S.E.2d [520] at 524 [(1993)].
Hudak, 19 Va. App. at 263, 450 S.E.2d at 771.
While the evidence in this case provides the basis for
reasonable suspicion, it is not sufficient to establish the
existence of a conspiracy beyond a reasonable doubt.
Accordingly, the conviction is reversed and dismissed.
- 5 - Reversed and dismissed.
- 6 -