COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Elder and Overton 

Argued at Richmond, Virginia 

MILTON GAITHER 

 MEMORANDUM OPINION* BY 

v. Record No. 0610-96-2 JUDGE JAMES W. BENTON, JR. 

 JUNE 24, 1997 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF THE CITY OF PETERSBURG 

James F. D'Alton, Jr., Judge 

 Mary Katherine Martin, Senior Assistant 

Public Defender, for appellant. 

 Daniel J. Munroe, Assistant Attorney General 

(James S. Gilmore, III, Attorney General, on 

brief), for appellee. 

 Milton Gaither was convicted on charges of conspiracy to 

distribute cocaine, see Code § 18.2-256, and attempted possession 

of cocaine with intent to distribute. See Code § 18.2-248. He 

contends that the evidence was insufficient to sustain the 

convictions. We agree and reverse the convictions. 

 I. 

 The evidence proved that Detective David E. Hamilton 

received information on November 18, 1993 about a package that 

would be arriving at the Greyhound Bus Station in the City of 

Petersburg in the name of Milton Gaither. After the detective 

found a package at the station addressed to Gaither, a dog 

trained to detect narcotics "alerted" on the package. The 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
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detective then obtained a search warrant, searched the package, 

and found men's clothing inside the package. Inside the pockets 

of an item of clothing, the detective found bags containing an 

off-white, chunky substance. The substance was found to be 71 

grams of cocaine. 

 The detective removed the cocaine, resealed the package, and 

returned the package to the bus station. The detective and other 

officers waited for Gaither to arrive for the package. That same 

day, one of the officers saw Gaither in the bus station standing 

near the counter where tickets could be purchased and packages 

could be retrieved. Gaither walked away from the counter and 

exited the station. 

 The next day, Gaither entered the bus station, signed for 

the package, and walked out of the station with the package. As 

he was walking away from the station, Gaither gave the package to 

a man who was walking with him. A police officer arrested 

Gaither and read him Miranda warnings. After signing a waiver 

form, Gaither wrote the following: 

 I met them when I got out of jail. They was 

in my cousin['s] room, so I ask[ed] them who 

they were. He said his name was Junie and 

Steve. We talk[ed], then one day he said he 

would [send] me a package. The first two 

times I pick[ed] it up, I thought nothing of 

it. Then I suspect[ed] it might be drug[s] 

. . . , then it was too late. I call[ed] my 

mother and she told me Sharon Booker took 

them in Blandford somewhere. He called his 

girlfriend Malisa and she told him that the 

package were there. Then he told me to go 

and pick it up. 
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 At the close of the Commonwealth's case, Gaither made a 

motion to strike and argued that (1) the evidence was 

insufficient to prove possession of cocaine because the cocaine 

had been removed before Gaither obtained the box, (2) the 

evidence was insufficient to prove Gaither knew drugs were inside 

the box, and (3) the evidence was insufficient to show a 

conspiracy because the Commonwealth failed to prove an agreement 

between Gaither and another individual. The trial judge 

sustained, in part, the motion on the possession charge and ruled 

that the evidence did not prove an offense greater than an 

attempt to possess cocaine with an intent to distribute. The 

judge overruled the other grounds for the motion. When Gaither 

did not present evidence on his own behalf, the trial judge 

convicted Gaither of attempted possession of cocaine with intent 

to distribute and conspiracy to distribute cocaine. 

 II. 

 To prove a conspiracy, the Commonwealth was required to 

prove that an agreement existed and that the parties shared an 

intent to achieve a certain objective. See Fortune v. 

Commonwealth, 12 Va. App. 643, 647, 406 S.E.2d 47, 48 (1991). 

Although the Commonwealth may prove an agreement through 

circumstantial evidence, the principle is well established that 

when evidence as to an element of an offense is wholly 

circumstantial, "all necessary circumstances proved must be 

consistent with guilt and inconsistent with innocence and exclude 
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every reasonable hypothesis of innocence." Inge v. Commonwealth, 

217 Va. 360, 366, 228 S.E.2d 563, 567 (1976). 

 The Commonwealth's evidence merely showed that Gaither 

agreed to pick up the package at the bus station, that he picked 

up the package, that he suspected drugs, and that the package 

contained a large quantity of cocaine. No evidence proved that 

Gaither agreed to distribute cocaine or that Gaither was aware of 

the nature of the contents of the package. No evidence proved 

that Gaither had opened that package or any other package. 

 "In order to convict [Gaither] of conspiring . . . to 

distribute a controlled drug, the Commonwealth had to prove 

beyond a reasonable doubt that an agreement existed . . . between 

[Gaither and another] by some concerted action to distribute the 

drugs." Reed v. Commonwealth, 213 Va. 593, 594, 194 S.E.2d 746, 

747 (1973). This evidence fails to meet that standard. An 

agreement between parties is not shown by merely proving that one 

person assists another. Cf. Poole v. Commonwealth, 7 Va. App. 

510, 513, 375 S.E.2d 371, 372-73 (1988). Indeed, a person may 

unwittingly aid a criminal act. At most, this evidence creates 

merely a suspicion of guilt. However, suspicion, alone, is not 

enough to sustain a conviction. See Stover v. Commonwealth, 222 

Va. 618, 624, 283 S.E.2d 194, 197 (1981) ("Suspicion, . . . no 

matter how strong, is insufficient to sustain a criminal 

conviction."); see also Bridgeman v. Commonwealth, 3 Va. App. 

523, 528, 351 S.E.2d 598, 601-02 (1986). Accordingly, we hold 
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that the evidence was insufficient to support the conviction for 

conspiracy to distribute cocaine. 
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 III. 

 The only evidence that tended to show that Gaither knew 

cocaine was in the package was Gaither's statement that he 

"suspected" drugs. However, to prove possession the Commonwealth 

must prove that Gaither was "aware of the presence and character 

of the [cocaine] and was intentionally and consciously" 

possessing it. Wright v. Commonwealth, 217 Va. 669, 670, 232 

S.E.2d 733, 734 (1977); see also Buono v. Commonwealth, 213 Va. 

475, 193 S.E.2d 798 (1973). "[C]ircumstances of suspicion, no 

matter how grave or strong, are not proof of guilt sufficient to 

support a verdict of guilty." Clodfelter v. Commonwealth, 218 

Va. 619, 623, 238 S.E.2d 820, 822 (1977); see also Burton v. 

Commonwealth, 215 Va. 711, 213 S.E.2d 757 (1975). Evidence that 

Gaither "suspected" that drugs may have been inside the package 

fails to prove beyond a reasonable doubt that Gaither 

intentionally and consciously possessed the drugs. Thus, the 

evidence was insufficient to support the conviction for attempted 

possession of cocaine with intent to distribute. 

 Accordingly, the convictions are reversed. 

 Reversed.