COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judge Annunziata and 

 Senior Judge Duff 

Argued at Alexandria, Virginia 

KEVI COMAS, S/K/A 

 KEVI SALVADOR COMAS 

 MEMORANDUM OPINION* BY 

v. Record No. 1216-99-2 CHIEF JUDGE JOHANNA L. FITZPATRICK 

 JUNE 6, 2000

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND 

James B. Wilkinson, Judge 

 Andrea C. Long (David E. Boone; Boone, Beale, 

Cosby & Long, on brief), for appellant. 

 Amy L. Marshall, Assistant Attorney General 

(Mark L. Earley, Attorney General, on brief), 

for appellee. 

 Kevi Salvador Comas (appellant) was convicted in a bench 

trial of distribution of heroin, in violation of Code § 18.2-248, 

and conspiracy to distribute heroin, in violation of Code 

§ 18.2-22.1 The sole issue raised on appeal is whether the 

evidence was sufficient to convict appellant of the charges. 

Finding the evidence insufficient on both charges, we reverse. 

 

* Pursuant to Code § 17.1-413, recodifying Code 

§ 17-116.010, this opinion is not designated for publication.

1

 Appellant was also indicted for possession of heroin with 

intent to distribute, in violation of Code § 18.2-248.1. 

However, the trial court merged the possession charge with the 

distribution charge. 
- 2 - 

I. 

 Under familiar principles of appellate review, we examine 

the evidence in the light most favorable to the Commonwealth, 

the prevailing party below, granting to that evidence all 

reasonable inferences fairly deducible therefrom. See Juares v. 

Commonwealth, 26 Va. App. 154, 156, 493 S.E.2d 677, 678 (1997). 

So viewed, the evidence established that on October 15, 1998, 

Detective Mark Dunn (Dunn) arrested Anthony Williams (Williams) 

for an outstanding narcotics warrant. Williams agreed to 

cooperate with the police and work as a confidential informant 

in the controlled purchase of narcotics from "several Dominican" 

males. He knew the individuals by their nicknames "Bumler" and 

"Victor," later identified as Felix Martinez and Daniel 

Martinez. Williams had no contact with appellant, a 23-year-old 

taxicab driver from New York, in arranging the controlled 

purchase. 

 Under the direction of Dunn, Williams paged two numbers 

with a New York area code and within five minutes received a 

return phone call from the Econo Lodge on Midlothian Turnpike in 

Richmond, Virginia. At that time, Williams arranged to purchase 

three ounces of heroin, paying $3,800 for one ounce and the 

other two ounces "were going to be received on consignment." 

The controlled purchase was going to take place the following 

day at a yet to be determined location. 
- 3 - 

 Police set up surveillance at the Econo Lodge on October 

15, 1998. A "green Windstar van with New York tags" was in the 

parking lot. Later that night, Detective Dunn saw three 

Dominican males leave Room 205 and go to a Waffle House 

restaurant on Midlothian Turnpike. "They stayed at the Waffle 

House for a short period of time and then they returned and went 

back into Room 205 at the Econo Lodge." The room was registered 

in appellant's name. 

 The following morning, Williams received a page from the 

Econo Lodge and made arrangements to meet at a bowling alley on 

Belt Boulevard. At approximately 12:30 p.m., the surveillance 

units observed all three men exit Room 205, get into the 

Windstar van, and drive to the bowling alley on Belt Boulevard. 

Felix Martinez drove the van, Daniel Martinez sat in the front 

passenger seat, and appellant sat in the rear bench seat. After 

arriving at the bowling alley, the men waited approximately two 

minutes, exited the van, and went inside the bowling alley. 

 After Williams arrived, the Martinez brothers "exited the 

bowling alley and walked over to the Windstar van." Appellant 

remained inside the bowling alley. Dunn observed the following: 

After they had hit the buttons to unlock the 

doors Mr. Daniel Martinez walked around to 

the sliding door, which was the door that 

[appellant] had come out, and opened up the 

door and reached in by the bench seat that 

was right directly behind the driver and the 

passenger doors[,] . . . at which time Mr. 

Felix Martinez had opened up the driver's 
- 4 - 

side door and he had reached into the 

vehicle also. And, then they had both 

turned . . . to [Williams's] vehicle and 

Danny Martinez had walked over to 

[Williams's] passenger side window, at which 

time they had a conversation . . . . 

Felix Martinez then exchanged an object, later identified as a 

bag with an "Oodles of Noodles box" inside, for $3,800 in marked 

bills. The box contained approximately 54 grams of heroin in 

two separate bags. 

 After the sale, the Martinez brothers went back into the 

bowling alley to meet appellant. Approximately one-half hour 

later, the surveillance team observed appellant, who was not 

involved in the parking lot transaction, and the Martinez 

brothers leave the bowling alley and return to the Econo Lodge. 

The men walked to a nearby Chinese restaurant, where they were 

arrested. In a search of the van, the police found under the 

driver's seat the $3,800 in marked bills. The police also 

searched the hotel room, where they found "a pair of scissors 

sitting on the table," five grams of heroin in a latex glove 

"underneath [a] tissue box," and "a bunch of Oodles of Noodles" 

inside the garbage can. One of the arresting officers searched 

appellant and found a wallet containing his identification, 

approximately $220 in cash, a pager, a cell phone, and an 

electronic organizer. 

 At trial, Williams testified that he knew "Bumler" Martinez 

and "Victor" Martinez from a previous drug transaction. 
- 5 - 

Williams also stated that he saw appellant "in the car back 

during the summertime, but [he] never did get no drugs [sic] 

from [appellant]" and could not remember the type of car. 

Williams confirmed that appellant was not present in the bowling 

alley parking lot on October 16, 1998. Williams admitted that 

he had been convicted of four felonies and that a recent 

narcotics charge had been nolle prossed on October 17, 1998. 

 On cross-examination, Detective Dunn testified that 

appellant did not drive the van at any time while the men were 

under police surveillance. Dunn was unsure what appellant was 

doing in the bowling alley during the controlled purchase, but 

confirmed that appellant was not present in the parking lot. 

Finally, Dunn admitted that appellant's voice did not appear on 

any of the telephone calls taped by the police. 

 In his defense, appellant testified that he met the 

Martinez brothers in New York at a parking lot owned by his 

father where appellant attended cars. The brothers knew 

appellant drove a taxicab and they wanted him to accompany them 

to Richmond to buy a "Lincoln Town Car" for a taxi business. 

Appellant was going to drive the car back to New York and lease 

it from the Martinez brothers on a weekly basis. 

 Appellant testified that he had never been to Richmond, 

Virginia prior to the October 15, 1998 trip. When the three men 

arrived at the Econo Lodge, Felix Martinez handed appellant a 
- 6 - 

fifty-dollar bill and asked him to go rent a room while they 

parked the van. Inside, the hotel clerk asked appellant for 

identification, which appellant produced, and the room was 

registered in appellant's name. 

 Appellant testified that he did not know about the drug 

transaction and, although he saw a bag sitting in the van, he 

did not know what was in the bag. He admitted that he was 

present in the hotel room while the Martinez brothers made some 

phones calls, but he did not overhear their conversations. 

Appellant stated that the television was on "most of the time" 

and that the men generally talked about what was on the 

television and about buying the Lincoln Town Car from an 

individual named "Miguel." 

 Appellant testified that on October 16, 1998, the men left 

the hotel to play pool at a bowling alley. When they arrived, 

they went inside the bowling alley and appellant rented a table 

and ordered some food. Although the Martinez brothers went 

outside for a few moments, appellant remained inside the bowling 

alley until the three of them left. Appellant testified that 

the pager, cell phone and electronic organizer belonged to 

Daniel Martinez and that the police placed all the seized items, 

including his wallet and cash, into one bag. 
- 7 - 

 On cross-examination, appellant denied ever seeing drugs or 

the Martinez brothers packaging any drugs. He denied 

overhearing any telephone conversations about a drug purchase. 

 At the conclusion of the presentation of evidence, the 

trial court found appellant guilty of distribution of heroin, in 

violation of Code § 18.2-248, and conspiracy to distribute heroin, 

in violation of Code § 18.2-22. 

II. 

 When the sufficiency of the evidence is challenged on 

appeal, we determine whether the evidence, viewed in the light 

most favorable to the prevailing party, the Commonwealth, and 

the reasonable inferences fairly deducible from that evidence 

support each and every element of the charged offense. See

Moore v. Commonwealth, 254 Va. 184, 186, 491 S.E.2d 739, 740 

(1997); Derr v. Commonwealth, 242 Va. 413, 424, 410 S.E.2d 662, 

668 (1991). "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 and 

all fair inferences that may be drawn therefrom." Watkins v. 

Commonwealth, 26 Va. App. 335, 349, 494 S.E.2d 859, 866 (1998). 

"We will not reverse the judgment of the trial court, sitting as 

the finder of fact in a bench trial, unless it is plainly wrong 

or without evidence to support it." Reynolds v. Commonwealth, 

30 Va. App. 153, 163, 515 S.E.2d 808, 813 (1999) (citing Martin 
- 8 - 

v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 

(1987)). 

 On appeal, appellant contends that the circumstantial 

evidence was insufficient to prove that he was a principal in 

the second degree to distribution of a controlled substance. 

Although the motel room was in his name, appellant argues that 

no act, statement, conduct or any other evidence established 

that "he knew of the presence and character of any heroin or of 

any heroin deal." We agree. 

 Proof by circumstantial evidence "'is not sufficient . . . 

if it engenders only a suspicion or even a probability of guilt. 

Conviction cannot rest upon conjecture.'" Littlejohn v. 

Commonwealth, 24 Va. App. 401, 414, 482 S.E.2d 853, 859 (1997) 

(quoting Hyde v. Commonwealth, 217 Va. 950, 955, 234 S.E.2d 74, 

78 (1977)). "'"[A]ll necessary circumstances proved must be 

consistent with guilt and inconsistent with innocence and 

exclude every reasonable hypothesis of innocence."'" Betancourt 

v. Commonwealth, 26 Va. App. 363, 373, 494 S.E.2d 873, 878 

(1998) (quoting Stover v. Commonwealth, 222 Va. 618, 623, 283 

S.E.2d 194, 196 (1981) (quoting Inge v. Commonwealth, 217 Va. 

360, 366, 228 S.E.2d 563, 567 (1976))). "When, from the 

circumstantial evidence, 'it is just as likely, if not more 

likely,' that a 'reasonable hypothesis of innocence' explains 

the accused's conduct, the evidence cannot be said to rise to 
- 9 - 

the level of proof beyond a reasonable doubt." Littlejohn, 24 

Va. App. at 414, 482 S.E.2d at 859 (quoting Haywood v. 

Commonwealth, 20 Va. App. 562, 567-68, 458 S.E.2d 606, 609 

(1995)). The Commonwealth need not "exclude every possible 

theory or surmise," but it must exclude those hypotheses "which 

flow from the evidence itself." Cantrell v. Commonwealth, 7 Va. 

App. 269, 289-90, 373 S.E.2d 328, 338-39 (1988) (citations 

omitted). 

 Because appellant was never directly involved in the drug 

transaction in the parking lot at the bowling alley or in 

setting up the buy, the Commonwealth proceeded on the theory 

that he was a principal in the second degree. To prove that 

appellant was a principal in the second degree to distribution 

of heroin, the Commonwealth had to prove beyond a reasonable 

doubt that he was present during the offense and aided and 

abetted or encouraged the Martinez brothers in the crime. See

Rollston v. Commonwealth, 11 Va. App. 535, 539, 399 S.E.2d 823, 

825 (1991). Furthermore, appellant must have shared the 

criminal intent of the principals in the first degree. See id. 

 Mere presence when a crime is committed 

is, of course, not sufficient to render one 

guilty as aider or abettor. There must be 

something to show that the person present 

and so charged, in some way procured, or 

incited, or encouraged, the act done by the 

actual perpetrator. But whether a person 

does in fact aid or abet another in the 

commission of a crime is a question which 
- 10 - 

may be determined by circumstances as well 

as by direct evidence. . . . 

To constitute one an aider and abettor, 

he must be guilty of some overt act, or he 

must share the criminal intent of the 

principal or party who commits the crime. 

. . . 

 Notwithstanding these rules as to the 

nonliability of a passive spectator, it is 

certain that proof that a person is present 

at the commission of a crime without 

disapproving or opposing it, is evidence 

from which, in connection with other 

circumstances, it is competent for the jury 

to infer that he assented thereto, lent to 

it his countenance and approval, and was 

thereby aiding and abetting the same. 

Foster v. Commonwealth, 179 Va. 96, 99-100, 18 S.E.2d 314, 316 

(1942) (citations omitted) (emphasis added). 

 Even viewed in the light most favorable to the 

Commonwealth, no evidence established that appellant, as a 

principal in the second degree, "in some way procured, or 

incited, or encouraged" or was present when the Martinez 

brothers distributed the heroin. Id. The van did not belong to 

appellant, and he was never seen driving the van; he was not 

present during the actual transaction in the bowling alley 

parking lot; he was never seen carrying the drugs or receiving 

or handling either the drugs or money; and his testimony that he 

knew nothing about the drug transaction was unrebutted. 

Significantly, appellant does not appear in the video-taped drug 

exchange in the parking lot, and his voice was not identified as 
- 11 - 

being in the audio-taped telephone calls. Put simply, there is 

no evidence linking appellant to the drugs, and any alleged 

involvement in the transaction was purely speculative. 

"Suspicion, no matter how strong, is not enough. Convictions 

cannot rest upon speculation and conjecture." Littlejohn, 24 

Va. App. at 415, 482 S.E.2d at 860 (citations omitted). 

 Nevertheless, the Commonwealth contends that the trial 

court could reasonably infer appellant's knowledge of the drug 

transaction because approximately five grams of heroin were 

found "on the sink in plain view in the motel room." To the 

contrary, there was no evidence that the drugs were in plain 

view. Detective Dunn testified that the five grams of heroin 

were found "underneath the tissue box." (Emphasis added). 

Additionally, appellant's mere presence in the hotel room or 

proximity to the drugs is not sufficient to prove that he either 

possessed or was involved in the distribution of the drugs. 

See, e.g., Walton v. Commonwealth, 255 Va. 422, 426, 497 S.E.2d 

869, 872 (1998); Haskins v. Commonwealth, 31 Va. App. 145, 152, 

521 S.E.2d 777, 780 (1999). Proof of a mere opportunity to 

commit an offense provides only "the suspicion that the 

defendant may have been the guilty agent; and suspicion is never 

enough to sustain a conviction." Simmons v. Commonwealth, 208 

Va. 778, 783, 160 S.E.2d 569, 573 (1968). The Commonwealth's 

evidence failed to prove that appellant was either directly 
- 12 - 

involved in the drug transaction or that he acted as a principal 

in the second degree. Finding the evidence insufficient, we 

reverse the distribution conviction. 

 Next, appellant contends that the evidence was insufficient 

to prove that he conspired to distribute heroin. He argues that 

"[n]o evidence was presented of any conversation about drugs 

which [he] is purported to have had with either of the Martinez 

brothers or Williams." We agree. 

 "Conspiracy is defined as an agreement between two or more 

persons by some concerted action to commit an offense." Zuniga 

v. Commonwealth, 7 Va. App. 523, 527, 375 S.E.2d 381, 384 (1988) 

(quoting Wright v. Commonwealth, 224 Va. 502, 505, 297 S.E.2d 

711, 713 (1982)) (internal quotations and 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. 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. The agreement is 

the essence of the conspiracy offense. 

[T]he Commonwealth must prove beyond a 

reasonable doubt that an agreement existed. 

Id. at 527-28, 375 S.E.2d at 384 (internal quotations and 

citations omitted). 
- 13 - 

 In the instant case, no evidence was presented that an 

agreement to distribute heroin existed between appellant and 

either the Martinez brothers or Williams. "[E]vidence of a 

distribution offense absent an agreement will not suffice to 

support a conspiracy conviction." Id. at 528, 375 S.E.2d at 385 

(citations omitted) (emphasis added). Here, there was 

insufficient evidence to prove that appellant either was a 

principal in the second degree to the distribution charge or was 

part of a conspiracy to distribute. For the foregoing reasons, 

we reverse and dismiss the convictions. 

 Reversed and dismissed.