COURT OF APPEALS OF VIRGINIA

Present: Judges Humphreys, Russell and Athey

Argued by teleconference

DONNIE ELIJAH SMALLWOOD

OPINION BY

v. Record No. 0375-19-3 JUDGE ROBERT J. HUMPHREYS

MAY 12, 2020

COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF PITTSYLVANIA COUNTY

Stacey W. Moreau, Judge

Matthew L. Pack (M. Pack Law, PLLC, on brief), for appellant.

Robert H. Anderson, III, Senior Assistant Attorney General (Mark R. 

Herring, Attorney General, on brief), for appellee.

On April 16, 2018, appellant Donnie Elijah Smallwood (“Smallwood”) was indicted by a 

grand jury in the Circuit Court of Pittsylvania County (“circuit court”) for three counts of 

conspiracy to obtain money by false pretenses, in violation of Code §§ 18.2-178, 18.2-22. After 

a bench trial on November 26, 2018, Smallwood was convicted of all three counts.

On appeal, Smallwood assigns the following two errors:

I. The trial court erred by denying the Defendant’s motion to 

strike and renewed motion to strike for lack of sufficient 

evidence. The trial court erred in finding that the evidence was 

sufficient to convict the defendant of multiple conspiracies to 

obtain money by false pretenses in violation of 18.2-178 and 

18.2-22 of the Code of Virginia, as amended, because the 

evidence failed to show that the Defendant entered into multiple 

conspiracies. Instead, the evidence supports a single 

overarching conspiracy. In finding the evidence sufficient to 

prove multiple conspiracies, the trial court violated the 

Defendant’s right against double jeopardy pursuant to the Fifth 

Amendment to the Constitution of the United States.

II. The trial court erred in finding that the evidence was sufficient 

to convict the Defendant of multiple counts of Conspiracy to 

PUBLISHED
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Obtain Money by False Pretenses in violation of Sections 

18.2-22 and 18.2-178 of the Code of Virginia, 1950, as 

amended, because the evidence only supported a singular, 

fraudulent scheme to defraud multiple persons.

I. BACKGROUND

Walter Hamilton, Jr. (“Hamilton”) has known Smallwood since 2003 when Smallwood 

became romantically involved with Hamilton’s mother, Monica Boone (“Boone”). Hamilton 

continued to view Smallwood as his father, even though Smallwood and Boone divorced in 

2005. Smallwood has also been incarcerated since 2005. During the year before Smallwood 

went to prison, he made $30,000 from his business.

On December 15, 2016, Hamilton, then a Virginia Beach police officer, contacted Ron 

Hall (“Mr. Hall”), Assistant Chief of Virginia Department of Corrections Special Investigations 

Unit. Hamilton identified himself as a police officer and requested an investigation into an

allegation that Smallwood assaulted a prison guard. Mr. Hall’s conversation with Hamilton 

sparked suspicion that Hamilton was not truly a police officer,1so Mr. Hall accessed 

Smallwood’s calls with Hamilton. Mr. Hall discovered what he believed to be a “scam” in 

which Smallwood and Hamilton were trying to obtain money from someone. Mr. Hall contacted 

the Virginia Beach Police Department and assigned Special Agent Craig O’Der to conduct 

further investigation.

At trial, during opening statement, the Commonwealth alleged that Hamilton and 

Smallwood participated in a “Ponzi scheme.” Later, during the presentation of evidence, 

Hamilton testified that he and Smallwood decided to create a “holding company” so that 

Hamilton could clear his credit and be able to take out loans. Hamilton also told Smallwood that 

they would first get money from Perry Thomasson (“Perry”), the owner of a funeral business 

1 The Virginia Beach Police Department later confirmed that Hamilton was actually a 

police officer.
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who had known Hamilton for ten years; then they would get money from a man named Oliver 

Williams—whom they referred to as “O”—and use O’s money to reimburse Perry. Hamilton 

knew “O” from business ventures in which Hamilton tried to involve himself. Despite the plan 

with Smallwood, neither Perry nor O received any money.

At trial, the Commonwealth introduced nine of the phone calls between Smallwood and 

Hamilton.2 During some of the calls, Hamilton would connect the call to third parties so that 

Smallwood could speak to them.

The first call the Commonwealth introduced was from December 12, 2016. Smallwood 

called Hamilton and discussed drawing up a contract that would include, among other things, 

that the business should go into effect within thirty days. In order to get started, Smallwood and 

Hamilton planned to “create an account through Bank of America.” After a third party deposited 

money into the account, Smallwood directed Hamilton to send him $4,000 and to send Dontez, 

Smallwood’s son, $4,000. Hamilton could do what he wanted with the remainder of the money. 

Then, Smallwood planned to “go to the next guy.” Next, Hamilton expressed concern about his 

credit. He said he would “get a little bit here, get a little bit there, pay the credit off, and then go 

get a loan and start making payments towards these individuals.” Hamilton told Smallwood that 

it would take about $15,000 to fix his credit. In planning the rest of the operation, Smallwood

talked about getting money from “O,” stating, “If we can get O . . . to get on board, I’m pretty 

sure I’m going to try to push him to make him think I can give up 225 stacks right away. But, on 

2 By citing to the Commonwealth’s opening statement and closing argument in their 

statements of fact, instead of the actual evidence in the case, the parties made it difficult for this 

Court to find the relevant evidence in the record. Additionally, both parties failed to include any 

citations to the index of phone calls or time stamps from those calls. Hundreds of phone calls 

between Smallwood and Hamilton and others were recorded and made part of this record, but 

only nine of them were actually played for the circuit court. Yet, all of them were submitted to 

this Court in a format that made it extremely difficult to locate those calls that were actually 

considered by the circuit court in reaching its verdict.
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the 225 stacks, he [is] gonna have to give me at least 17 G’s down.” Smallwood stated that he 

knew what to do in order to “make it clean itself up.”

Next, the Commonwealth introduced a second call from December 13, 2016, at 10:10. 

Smallwood discussed moving money around so that people would not realize there was no 

money to repay them. After that, the Commonwealth played a third call from December 11, 

2016. Hamilton connected the call with Perry so that Smallwood and Perry could talk. 

Smallwood stated that he had something for Perry to consider, where Perry would be able to 

“eat,” and Smallwood would also “eat.” In the call, Smallwood clarified that he called money 

“eating.” Smallwood explained that this plan would help him avoid paying money to the IRS 

and that the setup would allow everyone to “eat good.” Smallwood assured Perry that the 

arrangement would not profit Hamilton and would not “put [any] money in [anyone] else’s 

pocket” than his own.

The Commonwealth introduced a fourth call from later the same day. Smallwood and 

Hamilton discussed targeting another individual who was in the landscaping business and doing 

well financially. The remainder of the call consisted of additional planning for how they would 

go about creating an account and discussion about people they could approach about getting 

involved.

Then, the Commonwealth introduced a fifth call from December 13, 2016, at 10:32 in 

which Smallwood and Hamilton discussed how to approach “O.” Smallwood told Hamilton, “It 

seems like what we need to do with this dude, O, is catch him before he get[s] going. . . . You 

gotta catch him with his thinking cap not really moving too fast.” During the sixth call, from 

later the same day, Smallwood tried to convince “O” to invest. Smallwood told “O” that 

Smallwood already had a business that he had “pushed to the next level” and that he tries “not to 

give the IRS all [his] money every year.” He claimed, “Last year I put out almost 3.5 million 
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dollars in taxes alone. I am not trying to give that money up again this year.” Smallwood 

promised that the money would go directly to “O” and not to Hamilton.

Next, during the seventh and eighth calls, which occurred on December 14, 2016, 

Smallwood pitched his ideas to a man named Geary McDowell (“McDowell”) and a man named 

“Tom.” Smallwood agreed to place two million dollars into a bank account, but wanted his 

money back within a certain amount of time. In order to get the two million dollars, Smallwood 

told the men that they would need to deposit about “170 grand” to “180 grand” into the account. 

Smallwood stated that he had the money and would “stick to [his] side of the bargain.”

In the ninth and final call the Commonwealth introduced, which occurred later on

December 14, 2016, Smallwood spoke with Perry again. Perry asked for $100,000, and 

Smallwood stated that it would not be a problem. In order to receive the money, Smallwood told

Perry he would first have to deposit $4,800 into the account. When Perry became suspicious and 

asked from where the money he was to receive would be coming, Smallwood stated that 

Smallwood owned his own business. Perry asked whether Smallwood was in jail, to which 

Smallwood responded that he was not in jail, but his situation was “deeper than being in jail.”

In ruling, the circuit court found that the plan to defraud began on December 11, 2016

with the initial phone call described above. The calls continued, discussing and developing the 

plan in more detail. Finally, the circuit court stated that the first call played, “puts the plan 

together on trying to get money. You weren’t able to get it from the first two, then you went to 

the third one, and none of the money panned out.” The circuit court found Smallwood guilty on 

all three counts of conspiracy to obtain money by false pretenses.
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II. ANALYSIS

A. Standard of Review

“On appellate review of a criminal conviction for sufficiency of the evidence to support 

the conviction, the relevant question is, after reviewing the evidence in the light most favorable 

to the prosecution, whether any rational trier of fact could have found the essential elements of 

the crime beyond a reasonable doubt.” Sullivan v. Commonwealth, 280 Va. 672, 676 (2010) 

(citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)). This standard “gives full play to the 

responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the 

evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Brown v. 

Commonwealth, 68 Va. App. 44, 55 (2017) (quoting Jackson, 443 U.S. at 319). “The judgment 

of the trial court is presumed correct and will not be disturbed unless it is ‘plainly wrong or 

without evidence to support it.’” Pijor v. Commonwealth, 294 Va. 502, 512 (2017) (quoting 

Code § 8.01-680).

B. Sufficiency of the Evidence

As Smallwood has framed his assignments of error in his brief, both concern the 

sufficiency of the evidence that there were multiple conspiracies. However, his first assignment 

of error alleges that finding sufficient evidence of multiple conspiracies violates his Fifth 

Amendment right against double jeopardy under the United States Constitution. As a 

preliminary matter, we do not reach this assignment of error because it was not raised in 

Smallwood’s petition for appeal, or at trial.3 See Rule 5A:12(c)(1)(i) (“Only assignments of 

3

In fact, the entire first assignment of error in the petition for appeal differs from the one 

in Smallwood’s appellate brief. Smallwood’s petition does not mention a motion to strike, but 

merely the trial court’s alleged error of finding the evidence sufficient. The first assignment of 

error in the petition also addresses Smallwood’s “specific intent to form an agreement with 

Hamilton,” which is not raised in his appellate brief.
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error assigned in the petition for appeal will be noticed by this Court.”). Thus, we only consider 

whether the evidence was sufficient to convict Smallwood of multiple counts of conspiracy to 

obtain money by false pretenses.4

Smallwood was convicted under Code § 18.2-22. This statute states in relevant part, “If 

any person shall conspire, confederate or combine with another . . . to commit a felony within 

this Commonwealth, . . . he shall be guilty of a felony.” Code § 18.2-22(a). In this case, each 

indictment asserted a plan to violate Code § 18.2-178, which defines the crime of false pretenses.

Essentially, Smallwood argues that the evidence demonstrates that there was only a single plan 

to defraud multiple victims rather than three plans, each of which was designed to defraud 

individual victims. In resolving this issue, we are mindful that the language of the conspiracy 

statute is to be “strictly construed against the Commonwealth.” Cartwright v. Commonwealth, 

223 Va. 368, 372 (1982). 

A conspiracy is “an agreement between two or more persons by some concerted action to 

commit an offense.” Combs v. Commonwealth, 30 Va. App. 778, 787 (1999) (quoting Feigley

v. Commonwealth, 16 Va. App. 717, 722 (1993)). “Code § 18.2-22, conspiracy to commit a 

felony, is violated when two or more persons agree to commit a felony offense, regardless of 

whether any act in furtherance of the underlying crime has been performed.” Jones v. 

Commonwealth, 279 Va. 295, 301 (2010). In general, the unit of prosecution for conspiracy is 

the number of agreements. Thus, the number of conspiracy convictions ordinarily depends upon 

the number of agreements formed. See Williams v. Commonwealth, 12 Va. App. 912, 913-16, 

919 (1991) (en banc) (finding that Williams was guilty of two conspiracies to distribute 

4 On brief, Smallwood concedes that the Commonwealth presented sufficient evidence of 

a single conspiracy.
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marijuana because there was sufficient evidence to support a jury finding of two separate 

agreements). 

However, in the Commonwealth it is sometimes the case that a single agreement can 

support multiple conspiracy convictions. The Supreme Court of Virginia departed from the 

notion that Code § 18.2-22(a) simply restated the common law elements of a conspiracy, and it 

established an exception to this general rule in Cartwright v. Commonwealth, 223 Va. 368

(1982). In that case, the Court held that “a single agreement can form the basis for multiple 

violations of Code § 18.2-22.” Cartwright, 223 Va. at 372. Cartwright and his brother formed 

one agreement to commit three offenses: (1) to rob an employee of Tidewater Macke Company, 

(2) to commit capital murder of this employee, and (3) to murder a guard. Id. at 370. Cartwright 

argued that he could only be found guilty of one conspiracy because there was only one 

agreement. Id. at 371. The Court noted that conspiracies are illegal in order “to punish the 

special dangers inherent in group criminal activity” and “to permit preventative steps against 

those who show a disposition to commit crime.” Id. at 372. The Court also explained, “In 

enacting Code § 18.2-22, the General Assembly determined that all conspiracies are not the 

same. Conspiracies to commit more serious crimes are punished more severely.”

5

 Id. (emphasis 

added). Ultimately, that Court held that because Cartwright agreed to commit three different 

crimes of varying and extreme severity, he was subject to three convictions under Code 

§ 18.2-22. Id. 

5 Although unclear, presumably at least one factor in the distinction drawn by our 

Supreme Court being referenced here is that found between sections (1) and (2) of Code

§ 18.2-22. “(1) Every person who so conspires to commit an offense which is punishable by 

death shall be guilty of a Class 3 felony” and “(2) Every person who so conspires to commit an 

offense which is a noncapital felony shall be guilty of a Class 5 felony.” Code § 18.2-22(a). The

single agreement in Cartwright involved both the commission of capital and non-capital crimes.
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Consequently, it seems to us that after Cartwright, when a single agreement encompasses 

multiple crimes that are different and have different punishments, a single agreement can be 

punished as multiple conspiracies—one for each offense contemplated. See id.; see, e.g.,

Wooten v. Commonwealth, 235 Va. 89, 91-93 (1988) (holding that a single agreement to commit 

multiple drug offenses with different penalties constitutes multiple conspiracies under Code 

§ 18.2-256). 

However, this case is easily distinguished from Cartwright, and we conclude that the 

Cartwright exception is inapplicable. Cartwright involved both capital and non-capital crimes,

whereas this case involves a single plan to commit multiple underlying instances of a single, 

non-capital crime—obtaining money by false pretenses, a Class 4 felony. See Code § 18.2-178. 

Therefore, we conclude that the common law rule that the number of convictions depends upon 

the number of conspiratorial agreements is operable in this situation.

The circuit court found that there was a single agreement here, and the evidence in the 

record supports that conclusion. See Williams, 12 Va. App. at 915-16 (stating that the question 

of whether there is a single conspiracy or multiple conspiracies is a factual issue). From the 

record it is evident that Smallwood and Hamilton agreed to set up a single fraudulent scheme in 

the nature of a “Ponzi” or pyramid scheme to obtain money from multiple individuals so that 

Hamilton could pay off his creditors and overcome his financial difficulties. There is evidence 

of a single plan to use these “investors’” money to reimburse other earlier investors before any of 

the victims realized that Smallwood and Hamilton were using their money for personal gain. 

Although the record contains evidence that Smallwood and Hamilton targeted three 

victims—McDowell, Perry, and “O”—there is evidence that from the beginning, the plan was to 

target as many people as they could to become “investors.” Moreover, the fact that the plan 

necessarily required multiple victims in order to work also suggests the existence of a single 
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plan. Because the circuit court found that there was only a single agreement, it should have only 

convicted Smallwood of one count of conspiracy to obtain money by false pretenses and 

sentenced him accordingly.

6

III. CONCLUSION

For these reasons, we find that the circuit court erred in convicting Smallwood of 

multiple conspiracies. Therefore, the judgment of the circuit court is reversed and the case 

remanded with direction that two of the conspiracy convictions be vacated and those indictments

dismissed.

Reversed and remanded.

6 Smallwood relies on the United States v. MacDougall, 790 F.2d 1135 (4th Cir. 1986),

factors as set forth in Bowman v. Commonwealth, 11 Va. App. 259 (1990), to support his 

position. In Barber v. Commonwealth, 5 Va. App. 172, 177-78 (1987), we adopted the 

MacDougall test from the Fourth Circuit Court of Appeals as a mechanism to determine the 

number of conspiracies the evidence in a case supports. Under the test, this Court must examine 

the “totality of the circumstances” and consider the following factors: 

(1) time periods in which the activities occurred; (2) the statutory 

offenses as charged in the indictments; (3) the places where the 

activities occurred; (4) the persons acting as coconspirators; and 

(5) the overt acts or any other descriptions of the offenses charged 

which indicate the nature and scope of the activities to be 

prosecuted.

Id. However, Smallwood’s reliance on this test is superfluous. In both Barber and Bowman, we 

applied this test to determine whether there was a single agreement to commit multiple offenses,

or multiple agreements to commit multiple offenses. See Bowman, 11 Va. App. at 265-66; 

Barber, 5 Va. App. at 177-78. In this case, the circuit court already found that the evidence 

demonstrates that targeting multiple victims was part of Smallwood and Hamilton’s single

agreement. Smallwood does not dispute this finding and acknowledges that there was a single 

agreement. Thus, we need not apply the MacDougall test.