COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick,* Judge Elder and 

 Senior Judge Duff 

Argued at Alexandria, Virginia 

CASSONDRA SUE BETANCOURT 

 OPINION BY 

v. Record No. 0864-96-4 CHIEF JUDGE JOHANNA L. FITZPATRICK 

 JANUARY 20, 1998 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF LOUDOUN COUNTY 

James H. Chamblin, Judge 

 Paul A. Morrison for appellant. 

 Daniel J. Munroe, Assistant Attorney General 

(Richard Cullen, Attorney General; 

H. Elizabeth Shaffer, Assistant Attorney 

General, on brief), for appellee. 

 Cassondra Sue Betancourt (appellant) was convicted in a jury 

trial of first degree murder in violation of Code § 18.2-32. The 

court accepted the jury's recommendation and sentenced her to 

fifty years in prison. On appeal, appellant argues that: (1) 

the evidence was insufficient as a matter of law to convict her 

of first degree murder; (2) the court erred in admitting tapes 

and transcripts in violation of the best evidence rule; and (3) 

the court erred in denying appellant's motion for a mistrial. 

Finding the evidence insufficient, we reverse the conviction. 

Because we reverse on this ground, we do not address appellant's 

other contentions. 

 

 *On November 19, 1997, Judge Fitzpatrick succeeded Judge 

Moon as chief judge. 
 2 

 I. 

 On appeal, the sufficiency of the evidence must be examined 

in the light most favorable to the Commonwealth, granting to it 

all reasonable inferences fairly deducible therefrom. See Sam v. 

Commonwealth, 13 Va. App. 312, 411 S.E.2d 832 (1991). "The 

jury's verdict will not be disturbed on appeal unless it is 

plainly wrong or without evidence to support it." Id. at 318, 

411 S.E.2d at 835. 

 Cassondra Betancourt had a three-year relationship with 

Walter Montague (the deceased), which included business dealings, 

sharing a bed on at least one occasion, and frequent cocaine use. 

 Montague was an overweight sixty-five-year-old smoker who 

habitually used drugs and alcohol. 

 In the spring of 1994, appellant and Montague agreed to 

start a business. They obtained a tax identification number from 

the IRS and began incorporation proceedings. As part of this 

business relationship, appellant and Montague took out a "key 

man" life insurance policy on Montague. Appellant was the 

beneficiary of the policy. On August 3, 1994, Frank Dennis, a 

Nationwide Insurance Company agent, completed the application for 

a $500,000 policy. Appellant and Montague made an initial 

payment of $2,130 with a check drawn on appellant's account. 

Dennis testified that this payment was necessary for the 

beneficiary to collect should the insured die during the 

application period. Montague was required to undergo a medical 
 3 

examination before the policy could be finalized. Appellant 

discussed with Montague the need to complete the process and 

repeatedly encouraged him to have the exam so the policy would 

become effective. Montague failed to have the required medical 

examination before he died on August 11, 1994. 

 On August 11, 1994, appellant purchased approximately ten 

grams of powder cocaine from Kip Rice for $600. Appellant 

indicated that she wanted the cocaine for a trip out of town with 

some friends. Rice warned appellant to be careful with the 

cocaine because it was powerful. 

 On the same day, Montague bought two bottles of liquor and 

registered for a room at the Hampton Inn Hotel in Sterling, 

Virginia. It was Montague's custom to stay in hotels when he 

"wanted to party." When Montague checked into the hotel, he paid 

for two people, and at some time he left a note indicating that 

he had "gone to [the] gas station [and would] be right back." 

Over the course of the day, he made numerous phone calls, 

including at least six calls to appellant, asking her to meet him 

at the hotel. Montague also phoned his stepdaughter, Dixie, but 

she declined his dinner invitation. Janet Hall, Montague's 

adopted daughter, spoke with him at 4:00 p.m. and again at 

6:30 p.m. During the 6:30 p.m. conversation, Hall heard 

appellant in the background, and Montague explained that he was 

having dinner with her. 

 Appellant joined Montague at the hotel in the evening, and 
 4 

they played cards and discussed various aspects of their 

relationship. They also drank fireballs, a mixture of cinnamon 

schnapps and tabasco sauce. Appellant told police that the 

discussion resulted in a disagreement, and she left, telling 

Montague that their relationship would be limited to business in 

the future. 

 Janet Hall tried to reach Montague several times that 

evening, but he failed to answer his pager and the room phone 

rang busy after 8:00 p.m. The last outbound call recorded from 

Montague's room was at 6:25 p.m. At approximately midnight that 

evening, a Hampton Inn guest in the room adjacent to Montague's 

heard a loud bang from the direction of Montague's room. There 

were no other guests in adjacent rooms or in that wing of the 

hotel at that time of night. 

 After she left Montague's hotel room, appellant called Kip 

Rice, her cocaine supplier, from her car. Rice testified that 

she "wasn't her usual self," her voice was cracking, and she 

wanted to come over to his place. Rice told appellant he had 

company. Appellant then called Bill Shreve and spent from 

approximately 8:30 p.m. until approximately 3:00 a.m. at his 

house. When asked if appellant had any cocaine with her when she 

came to his house, Shreve replied, "No, sir . . . . None that I 

know of . . . ." 

 The hotel cleaning crew noticed a "Do Not Disturb" sign on 

Montague's room door on the morning of August 12, 1994. After 
 5 

noon, they used a master key to gain entry and discovered 

Montague's body. The Loudoun County sheriff's department 

conducted an investigation of the scene. Montague's body was 

found lying between two beds next to a round table, which had 

been moved between the beds. The telephone was found under 

Montague's body, and the television was on "pretty loud." 

Playing cards were found on the round table, along with a writing 

pad with the initials "C" and "W" on it. A plastic motel 

drinking cup was also found on the table. Bottles of tequila and 

cinnamon Schnapps were found in the bathroom, together with a cup 

that was half full of a "caramel color liquid." Upon inspection, 

nothing in the room indicated a homicide, and the evidence 

technician poured the contents of the cup down the drain. 

Subsequent chemical analysis showed that the cup contained "as 

little as a nanogram" (0.000000001 g) of cocaine residue. At 

some point in the investigation, Janet Hall entered the room and 

told the officers on the scene that Cassondra Betancourt was 

responsible. 

 On August 16, 1994, Dr. James Beyer performed an autopsy. 

Finding no signs of trauma or needle puncture marks, he made an 

initial determination of death due to a "dilated cardiomyopathy." 

 No cocaine residue was observed around Montague's face or head. 

 Subsequent laboratory analysis showed a blood alcohol level of 

.16 percent and 31.07 milligrams per liter of cocaine in 

Montague's blood. Based on the lab analysis, Dr. Beyer changed 
 6 

his prior assessment to one of death due to cocaine poisoning 

with the cardiac problem as a contributing cause. Dr. Beyer did 

not test to determine the path of ingestion of the cocaine, and 

subsequent testing became impossible when Montague's family chose 

to cremate his remains. Dr. Beyer testified that in the majority 

of cocaine poisoning deaths the blood of the victim contains 

between one and five milligrams per liter of cocaine, and that 

the large imbalance between cocaine and cocaine metabolite in 

Montague's blood indicated that he had recently consumed a large 

amount of cocaine. 

 Dr. Anh Hyunh, an expert witness for the Commonwealth and 

the supervisor of the toxicology section of the Fairfax Forensic 

Laboratory, testified that Montague's system contained thirty 

times the amount of cocaine necessary to kill him. Based on the 

unusually high amount of cocaine in Montague's blood, Dr. Hyunh 

concluded it had been ingested orally or injected. Dr. Hyunh 

also considered Montague's heart condition and level of alcohol 

and testified that with "so many factors together [it] could have 

been a fatal accident." 

 On August 16, 1994, the sheriff's department phoned 

Nationwide Insurance and notified the company of Montague's 

death. On August 19, Investigator Robinette contacted Calvin 

Mullins, the Life Claims Manager for Nationwide, and informed him 

that appellant was a suspect. Robinette told Mullins to make 

sure appellant did not know that the sheriff's department was 
 7 

involved, to take notes of any contact with appellant, and to 

notify Robinette. Appellant did not contact the company, so 

Mullins mailed her a claim form and instructed her to complete 

it. Appellant phoned Mullins on August 31, and he instructed her 

to complete and return the claim form. She did so, but 

Nationwide refused to pay the claim, citing lack of information. 

 In January 1995, appellant wrote a letter to Nationwide 

demanding payment and stating, "Mr. Montague did not die by 

suicide." Upon learning that appellant had filed a claim, Janet 

Hall wrote Nationwide a letter threatening to sue if appellant 

received the money. Hall later filed a claim as an heir and sued 

Nationwide for its failure to pay. 

 Carolyn Bothwell, a friend of Hall's, assisted the police 

investigation by wearing a concealed recording device on six 

different occasions in a futile attempt to obtain incriminating 

statements from appellant. Bothwell testified that she, already 

a convicted felon, was the target of a felony prosecution in 

Loudoun County at the time of appellant's trial but that her case 

had been continued. She further testified that she had reached 

no agreement with the Loudoun County prosecutor's office 

regarding the effect her cooperation in appellant's case might 

have on her own prosecution. 

 Transcripts of appellant's interviews with Investigator 

Robinette indicated that appellant lied to police about the 

existence of any life insurance and her activities relating to 
 8 

Kip Rice, her cocaine supplier. At first, she denied knowledge 

of any insurance and of anyone who would benefit from Montague's 

death. However, she ultimately admitted that when Montague 

wanted to obtain life insurance, she chose the Nationwide office 

and agent. She initially denied phoning Rice on the night of 

Montague's death, but later admitted she had beeped him and he 

had returned her call. In one interview, appellant told 

Robinette she was unable to remember Kip's last name. In the 

next interview, when the police told her they knew Rice's name 

and showed her a picture of him, she admitted she had purchased 

cocaine from him prior to Montague's death but she could not 

remember exactly when. 

 Appellant told police that on the night of Montague's death, 

he had not threatened suicide. Montague never arranged his 

affairs in preparation for death. He died intestate leaving 

three heirs: Janet Hall, Richard Montague, and June Warner. 

Suzette Ronco, Montague's ex-wife and a nurse with some 

psychiatric experience, testified that while assisting him with 

his insurance paperwork she had directly asked Montague if he was 

planning suicide; he said "no." 

 On February 13, 1995, appellant was indicted for feloniously 

and unlawfully killing Walter Montague in violation of Code 

§ 18.2-32. A jury found her guilty of first degree murder on 

September 19, 1995. On November 1, 1995, appellant moved to set 

aside the verdict and for a mistrial. One of the grounds for the 
 9 

motions was the failure of the Commonwealth to disclose an 

agreement with Bothwell, which allegedly would have discredited 

her testimony. In response to the allegation, the prosecuting 

attorney responded, "there's no agreement other than to continue 

[her case]." The trial court denied appellant's motions. 

 II. 

 Appellant contends the evidence was insufficient to prove 

beyond a reasonable doubt that she committed first degree murder. 

 We agree. 

 The relevant parts of Code § 18.2-32 provide that "[m]urder 

. . . by any willful, deliberate, and premeditated killing . . . 

is murder of the first degree . . . . All murder other than 

capital murder and murder in the first degree is murder of the 

second degree. . . ." "'To premeditate means to adopt a specific 

intent to kill, and that is what distinguishes first and second 

degree murder.'" Rhodes v. Commonwealth, 238 Va. 480, 485, 384 

S.E.2d 95, 98 (1989) (quoting Smith v. Commonwealth, 220 Va. 696, 

700, 261 S.E.2d 550, 553 (1980)). "To prove premeditated murder, 

the Commonwealth must establish: (1) a killing; (2) a reasoning 

process antecedent to the act of killing, resulting in the 

formation of a specific intent to kill; and (3) the performance 

of that act with malicious intent." Archie v. Commonwealth, 14 

Va. App. 684, 689, 420 S.E.2d 718, 721 (1992) (citation omitted). 
 10 

 "Each element must be proved beyond a reasonable doubt." Morris 

v. Commonwealth, 17 Va. App. 575, 581, 439 S.E.2d 867, 871 (1994) 

(Benton, J., concurring and dissenting) (citing In re Winship, 

397 U.S. 358, 364 (1970)). "Proof of the elements of an offense, 

of course, includes proof of the corpus delicti." Watkins v. 

Commonwealth, 238 Va. 341, 350 n.3, 385 S.E.2d 50, 55 n.3 (1989), 

cert. denied, 494 U.S. 1074 (1990). To establish the corpus

delicti in a homicide, the Commonwealth must prove the victim's 

death resulted from the criminal act or agency of another person. 

See Williams v. Commonwealth, 234 Va. 168, 175, 360 S.E.2d 361, 

366 (1987), cert. denied, 484 U.S. 1020 (1988). "Premeditation 

and formation of an intent to kill seldom can be proved by direct 

evidence. A combination of circumstantial factors may be 

sufficient." Rhodes, 238 Va. at 486, 384 S.E.2d at 98 (citing 

Epperly v. Commonwealth, 224 Va. 214, 232, 294 S.E.2d 882, 893 

(1982)). 

 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) 

(citing 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.'" Stover v. 

Commonwealth, 222 Va. 618, 623, 283 S.E.2d 194, 196 (1981) 
 11 

(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 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). The evidence in the instant case 

fails to prove appellant's guilt beyond a reasonable doubt. 

 Viewed in the light most favorable to the Commonwealth, the 

evidence established that appellant bought cocaine and visited 

Montague in his hotel room on the day of his death from cocaine 

overdose. Although a jury could reasonably infer that appellant 

provided Montague with the cocaine that killed him, no evidence 

established the Commonwealth's theory that appellant disguised 

the cocaine in a drink. No evidence proved that appellant put 

the cocaine in a drink. Montague could have put cocaine in his 

own drink or he could have chosen to consume the cocaine in some 

other way. The Commonwealth destroyed the suspect liquid, and 

the extremely small amount of cocaine remaining in the cup could 

have come from multiple sources. No evidence established the 
 12 

time of death or whether appellant was present when Montague 

died. The evidence does not exclude the reasonable possibility 

that appellant provided the cocaine for recreational use, and 

Montague either accidentally or deliberately ingested an 

excessive dose near midnight, around the time of the unexplained 

noise from the direction of his room.1

 "Where a fact is equally susceptible of two interpretations 

one of which is consistent with the innocence of the accused, 

[the trier of fact] cannot arbitrarily adopt that interpretation 

which incriminates the accused." Littlejohn, 24 Va. App. at 411, 

482 S.E.2d at 858 (citation omitted). Accord Haywood v. 

Commonwealth, 20 Va. App. 562, 567, 458 S.E.2d 606, 609 (1995). 

The reasonable hypothesis that Montague consumed the cocaine by 

 

 1Appellant was charged with and convicted of premeditated 

first degree murder, not felony-murder. See Code § 18.2-32. 

However, under the hypothesis that Montague consumed the cocaine 

by choice, the facts sufficiently resemble our felony-murder 

cases to warrant distinction. See, e.g., Hickman v. 

Commonwealth, 11 Va. App. 369, 398 S.E.2d 698 (1990), aff'd, 242 

Va. 263, 410 S.E.2d 88 (1991). 

 In a felony-murder case, the malice inherent in the 

predicate felony is sufficient to prove the malice required for a 

conviction of second degree murder. See id. However, the malice 

of an underlying felony does not satisfy the element of 

premeditation required for first degree murder. See Archie v. 

Commonwealth, 14 Va. App. 684, 420 S.E.2d 718 (1992). 

Additionally, felony-murder requires that the death occur within 

the res gestae of the predicate offense; the two events may not 

be separated by time, place, or other circumstances. See Talbert 

v. Commonwealth, 17 Va. App. 239, 436 S.E.2d 286 (1993). In the 

instant case, no evidence established either the reason Montague 

consumed an excessive dose of cocaine or appellant's presence at 

the time of his death. If Montague ingested the cocaine near 

midnight, his death occurred several hours after appellant 

provided him with the drug and departed. 
 13 

choice is inconsistent with proof beyond a reasonable doubt of 

the "criminal act or agency of another person" and the 

"performance of that act with malicious intent" required for the 

corpus delicti and actus reus elements of premeditated murder. 

 Assuming appellant had a motive to kill her business partner 

for the insurance proceeds, motive alone does not prove the 

requisite intent for a murder conviction. No evidence explains 

why Montague had to phone appellant multiple times before she 

agreed to join him at the hotel. The record provides no 

explanation for appellant's attempts to encourage Montague to 

have the physical examination required to finalize the policy if 

she believed she could collect the proceeds without one. No 

evidence explains why appellant did not initiate a claim for the 

life insurance benefits until the company contacted her and 

instructed her to do so. The evidence does not prove beyond a 

reasonable doubt that appellant was the criminal agent in a 

homicide or had the specific intent to kill required for a 

conviction of premeditated murder. 

 Taken in the light most favorable to the Commonwealth, the 

evidence in this record does not exclude the hypothesis that 

Montague died as a result of an accidental or deliberate 

self-inflicted overdose after appellant left his hotel room. 

"The circumstances of motive, time, place, means, and conduct 

must all concur to form an unbroken chain which links the 

defendant to the crime beyond a reasonable doubt." Sam v. 
 14 

Commonwealth, 13 Va. App. 312, 319, 411 S.E.2d 832, 836 (1991) 

(citation omitted). Viewed as a whole, the circumstantial 

factors here are suspicious, but they do not prove beyond a 

reasonable doubt either the existence of a homicide or the 

identity of appellant as the criminal agent. "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). For the foregoing reasons, we 

reverse the conviction. 

 Reversed.