COURT OF APPEALS OF VIRGINIA

Present: Chie f Judge Fitzpatr ick, Judges El der and Clements Argued at Rich mond, 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., Ju dge 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 po ssess with intent to dist ribute more than five pounds of mariju ana in violation of Co de §§ 18.2-248.1 and 18.2-256. 1 On appeal he co ntends (1) that th e trial co urt erred in accepting the jury verdict finding ap pellant guilty of conspiracy with intent to distri bute more than five pounds of marijuana as a principal in th e "second degree " and (2) the evidence was insufficie nt 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 fo llowing reas ons, we affirm the judgment of the trial court.
I. BACKGROUND Under familiar princi ples of appell ate review, we examine the evidence in the light most favorable to the Common wealth, the prevailing party below, granting to it all reasonable inferences fairly deducibl e therefrom. See Juares v. Commonwealth , 26 Va. App. 154, 156, 493 S. E.2d 677, 678 (1997).
A. OFFENSE So viewed, the eviden ce established that on January 7, 1999, a person using the name of Tricia Williams shipped two large boxes from La Mesa, Ca lifornia via Federal Expr ess to Box 233 at Mail Boxes Etc. (the store), 12750 Jeff Davis Highway in Chesterfield County, Virgin ia. The box was jo intly regist ered to ap pellant and Ross Robinson (Robinso n) under the name "Gre en Film Editors," an inactive business. Ro binson and appellant had previously been involved together in the drug trade. The police intercepted the packages, determ ined that they contai ned fifty po unds of marijuana, and set up a controlled delive ry with an officer working unde rcover 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. Robins on 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 dr ugs. Appellan t agreed to meet Jay at Denny's. At the meetin g Jay asked appe llant to get the package and gi ve it to him. Appell ant followed Jay to the shopping complex where Mail Boxes Etc. was lo cated. Ja y pulled into a nearby McDonald's while appellan t went to the store, signed for and picked up the packages. The unde rcover officer helped appellant place th e packages in his vehicle. When appellant started to drive away , the police stopped and arrested him. After receiving Miranda warnings, ap pellant told the police that when he saw the size of the pa ckages he knew there were "probably drugs in the boxes." He described his me eting with Jay but refused to divulge wh at they talked about before he went into the store. At trial, appellant testified that he had not been expecting such large boxes and "h ad no idea" of their contents. He claimed he signed for the pa ckages without examin ing them and denied telling the police he thought the boxes probably co ntained drugs.
B. JURY VERDICT The trial cour t gave Instruction 6 wi thout object ion. It stated: A principal in the first degree is the person who actually commits th e crime. A principal in the second degree is a person who is present, aiding and ab etting, by helping in some way in the commis sion of th e crime. Presence and consent al one is not sufficient to constitute aiding an d abetting. It must be shown that the de fendant inte nded his words, gestures, signal s or actions to in

- 3 -some way encourage, ad vise, 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 puni shment as the person who actually comm itted the crime. During deliberations, the jury asked the tria l court whether this instruction applie d to all three charges. With out objection from appellant, the tr ial judge respon ded, "It goes to all three charges." The jury as ked the judge a follow-up ques tion, "So any one of the three we ca n apply this to, it do esn't have to be to all three?" The tria l judge responded "that's wi thin your discretion." When reading the verdict on the cons piracy charge the following coll oquy took place be tween the court an d the foreperson of the jury: THE COURT: On the char ge, we the jury -- the remaining charge -- we the ju ry, find the defendant guilty of the crime of conspiracy to possess with intent to distribute more than five pounds of ma rijuana as charged in the indictment. They have added "second degree," and it is sign ed 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 whet her he be a pr incipal 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. Actual ly, I believe, Your Honor, we were under the assumpti on that a

- 4 -second degree would be lesser of whatever sentence there may be than a first degree.
THE COURT: We ll, the instruct ion told you exactly the oppo site. It may go as to how you handle that in the sentencing aspect of the case. (Emphasis added.) The trial cour t asked appellan t if he had an y objection to asking the foreperson to strike the second degree. Appellant noted an objection to striking the "second de gree" and ar gued that the jury had in fact found him not gu ilty. The judg e declared to counsel, "[t]hey found him guilty." The trial court then polled the jury with each member answering affi rmatively that they concurred in the verdic t. The case was cont inued until the next morning for sentencing. When the court reco nvened the following morning, appellant requested a mistri al on the ground that the jury had ignored the instruction gi ven to them rega rding princi pals in the second degree and also argued that the evidence wa s insufficie nt as a matter of law to convict. 2 The trial court ov erruled ap pellant's motion. At the penalty phase appellant was sent enced to five years incarcer ation and orde red 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 appellan t guilty of "c onspiracy to possess mariju ana with the intent to distribute." Appellant appeals from th is conviction.
II. ANALYSIS Appellant cont ends (1) that the jury erred by failing to follow the instructions given by the trial ju dge when they added the words "second degree" to the verdict form and (2) that the evidence was insufficie nt to convict him as a principal in the second degree to the cr ime of conspiracy to possess mari juana with the intent to distribute.
A. JURY VERDICT "In determinin g 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 wi ll "disregard technica l irregulari ties in a verdict where th e jury's finding is otherwise clear." Id. Further, the court will "'go far in the disr egard of defects in verdicts which have be en accepted by the tr ial courts, but from which, notwithstanding such defects, the real finding of the jury may be determined, thou gh it may not be accu rately couched in the technical lang uage of th e law.'" Id. (quoting Williams v. Commonwealth , 153 Va. 987, 99 4, 151 S.E. 15 1, 153 (1930)). In the instant case, the record reflects that the trial court accurately ascertained that the jury intended to convic t appellant of the underlying cons piracy charged, but erroneously added the
- 6 -"second degree" language in an attemp t to impose a lesser sentence. The trial co urt correctly in formed the jury that this was a sentencing concer n and could be addres sed in the separate penalty phase. After this clarification, the trial ju dge polled the jury and each jury member affirmed that it was his or her verdict. Any co nfusion on the part of th e jury was cured by the judge's instru cting the jury about the me aning of "second degree" before the sentencing phase. The jury impo sed the minimum statutory pena lty which was consistent with thei r finding of guilt on the underlying conspiracy charge and thei r interest in mitigating punishment. Th us, 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 mo re persons by some concerted ac tion 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)). "I n Virginia, the cr ime of conspiracy is complete when the parties agree to commit an offense. No overt act in furtherance of the underlyi ng crime is necessary." Gray v. Commonwealth , 260 Va. 675, 68 0, 537 S.E.2d 86 2, 865 (2000). "Liability as a conspirator is not dependen t upon knowledge of the details and the sc ope of the conspiracy or the identity and role of each co-con spirator." 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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