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. 
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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.