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 

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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 

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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 

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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. 

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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 

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"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 

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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 

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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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