COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Felton, Ju dges Elder, Frank, Hu mphreys, Kelsey, McClanahan, Haley, Petty, Beales, Powell and Alston Argued at Richmond, Virginia
GLEN PATRICK MERRITT OPINION BY v. Record No. 1871-08-1 JUDGE ELIZABETH A. McCLANAHAN JANUARY 25, 2011 COMMONWEALTH OF VIRGINIA

UPON A REHEARING EN BANC
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH William R. O’ Brien, Judge Harry Dennis Harmon, Jr., for appellant. Josephine F. Whalen, Assistant Attorney General II (Kenneth T. Cuccinelli, II, Attorney Genera l, on brief), for appellee.
A jury convicted Glen Patrick Merritt of possession of ecstasy (MDMA), a Schedule I controlled substance, with intent to distribute, se cond or subsequent offense, in violation of Code § 18.2-248; transporting ecstasy into the Commonwealth, with intent to distribute, in violation of Code § 18.2-248.01; and conspiracy to possess ecstasy with intent to distri bute in violation of Code § 18.2-256. The Commonwealth’s theory was that Merritt served as the “muscle” in an illegal narcotics scheme in which his role was to safeguard the transporta tion of a large quantity of ecstasy into the Commonwealth. Merritt contends the evidence failed to prove the Commonwealth’s theory and was, therefore, insufficient to su pport his convictions. A panel majority of this Court agreed and reversed the convictions. 1 We granted a petition for rehearing

1 Merritt also contended the trial court erred in denying his motion to suppress evidence. However, counsel for Merritt conceded at oral argument before the panel that the suppression issue was not preserved and not properly before this Court. See Rule 5A:18; Lenz v.- 2 - en banc and stayed the mandate of th e panel decision. Upon rehearing en banc , we affirm the trial court.
I. STANDARD OF REVIEW “On review of a challenge to its sufficien cy, we view the evidence in the light most favorable to the Commonwealth, the party prev ailing below, and gran t to it all reasonable inferences fairly deducible therefrom.” Nolen v. Commonwealth , 53 Va. App. 593, 595, 673 S.E.2d 920, 921 (2009); see also Barnes v. Commonwealth , 279 Va. 22, 35, 688 S.E.2d 210, 217 (2010). “Sufficiency-of-the-evide nce review involves assessment by the courts of whether the evidence adduced at trial could support any rational determination of guilt beyond a reasonable doubt.” United States v. Powell , 469 U.S. 57, 67 (1984). See also McMillan v. Commonwealth , 277 Va. 11, 19, 671 S.E.2d 396, 399 (2009); Jones v. Commonwealth , 277 Va. 171, 182, 670 S.E.2d 727, 734 (2009); Clanton v. Commonwealth , 53 Va. App. 561, 566, 673 S.E.2d 904, 906-07 (2009) ( en banc ). II. BACKGROUND On August 6, Virginia Beach police conducted an undercover drug interdiction at a bus depot operated by Today’s Bus, a bus line that co nducts nonstop bus trips be tween the cities of Virginia Beach and New York. 2 Detective Dean Massetti arrived at the depot, dressed in civilian clothes, with his K-9, Sheena, at approximately 12:30 a.m. as the bus from Chinatown in New York was pulling into the depot parking lot. Detective Christopher Biswurm arrived shortly

Commonwealth , 261 Va. 451, 463, 544 S.E.2d 299, 306 (2001) (failure to request ruling on pretrial motion waives issue on appeal).

2 A drug interdiction is the process whereby pol ice stop the illegal flow of narcotics into the Commonwealth from outside sources. This bus depot had been identified by Virginia Beach police as a major pipeline of la rge quantities of narcotics enteri ng into Virginia Beach from New York. The company runs the bus depot as a “cash-and-go service,” and since there is no identification or baggage check, an individual can “go unchecked to and from New York City.” The Virginia Beach police routinely conduc t drug interdictions at this depot.- 3 - thereafter and followed Massetti and Sheena through the parking lot as they approached the bus. Sergeants Kenneth Dimitry and Richard Brereton were stationed nearby and observed a silver Lexus enter the parking lot. B ecause the driver and passenger of the Lexus “literally snapped their heads around to look at what was going on” when Massetti and Sheena passed by them, Dimitry and Brereton continued to watch them and observed the Lexus move out of the lighted area of the parking lot into a darker area that pr ovided easy access to the road. The driver and passenger were later identified as Perry Bolton a nd Glen Merritt respectiv ely. Merritt exited the vehicle holding a cell phone to hi s ear and followed Massetti and Sh eena toward the bus. Merritt stood at the rear of the bus as Massetti sent Sh eena into the luggage comp artment of the bus to detect the odor of any illegal narcotics. 3 Although Merritt was holdi ng a cell phone to his ear, he was not talking into the cell phone or changing faci al expressions but focu sed his attention on the luggage compartment area. In fact, according to Detective Biswurm, it would have been too noisy at the rear of the bus to hear anyone on a cell phone. He co mpared Merritt’s behavior to that of police officers conducting surveillance who “act like we’re talking into our phone, basically to draw attent ion away from us.” After a short period of time, Merritt began l ooking into the crowd of passengers departing from the bus. Merritt then turned his attention to a male, later identified as Anthony McDaniels, as McDaniels looked in the luggage compartmen t. McDaniels retrieved a suitcase from the luggage compartment and, accompanied by Erica Spra tley, walked in front of Merritt. There was no greeting between Merritt and McDaniels or Spratley, but Merr itt began “shadowing” McDaniels and Spratley and “beh aving as if he was being a lo okout” as they walked across the

3 Sheena did not “alert” on any illegal na rcotics in the luggage compartment.- 4 - y parking lot. 4 Sergeant Dimitry testified that Merritt was, again, behaving the same way police do when they run surveillance on undercover drug operations. 5 When McDaniels and Spratle reached the vehicle, Merritt cont inued walking past the vehicle a nd stood fifteen to thirty feet away “scanning the parking lot” and “watching what was taking place at the vehicle.” Bolton exited the vehicle, retrieved the suitcase from McDaniels, and placed it into the trunk of the
Lexus. Sergeant Dimitry instructed Massetti and Biswurm to approach the occupants of the Lexus because he believed they were acting “out of the ordinary for someone just picking somebody up from the bus stop.” As they approached, Massetti observed a plastic baggie corner on the ground underneath the front passenger’s d oor. According to Massetti and Biswurm, a plastic baggie corner is a common delivery system for street-level narcotics. This plastic baggie corner appeared to be “discarded remains.” Massetti took Sheena back to his van, retrieved a flashlight, and returned to the Lexus. When he returned, McDaniels was seated in the driver’s

seat. 6 Merritt was seated in the fr ont passenger’s seat. Bo lton was seated in the rear seat behind McDaniels, and Spratley was seated in the rear seat behind Merritt. Mass etti identified himself to McDaniels and asked him about the baggie corn er. McDaniels claimed to have no knowledge of it. As Massetti was talking with McDaniels, Merritt began leaning forward and toward the console as well as manipulating hi s left front pocket, which app eared to have “something very bulky” in it. Concerned for his safety, Massetti asked if there we re any weapons or drugs in the

4 According to Detective Biswurm, Merritt followed behind McDaniels and Spratley staying fifteen to twenty feet behind them.

5 Dimitry explained they typically place offi cers on foot to act like they are talking on their cell phones to act disinterested in what is going on around them. Those officers will shadow the undercover officer buying drugs to pr ovide cover and ensure the safety of the operation is not compromised.

6 It was established at trial that McDaniels was the owner of the Lexus.- 5 - car. Bolton said he had a gun in the center cons ole and ammunition in the glove compartment. Massetti and Biswurm, now joined by Dimitry and Brereton, then instructed all the occupants to exit the vehicle so they could be frisked for weapons. Although no guns were found on the occupants, Merritt was carrying a small knife a ttached to his belt. Two cell phones were found in Merritt’s left front pocket. When Massetti retrieved the gun from the console, he observed a small Zip-loc baggie sticking out of a small comp artment to the left of the steering wheel and containing blue powder residue and a clear capsule. The residue field-tested positive for ecstasy (MDMA). Massetti recovered a .45 caliber semi-automatic handgun in the center console. In the glove compartment, he found the rounds be longing to the handgun “ins ide the magazine, so the magazine was ready to go.” 7 After the discovery of the baggie contai ning ecstasy, Massetti and Biswurm conducted a search of the vehicle. In the trunk, they f ound a black suitcase containing several items of clothing, a shoebox containing a wall et and a pair of shoes, and a heat-sealed bag containing 998 tablets of ecstasy (MDMA). In the rear passenge r’s seat of the vehicle, where Bolton had been sitting, was a Western Union receipt for $125 that was wired from Bolton to Merritt in New York City on August 2. Massetti testified that Western Union is commonly used in the drug industry to transfer money as payment for drugs or services. Also found in the same area was a receipt from the Smoke Shack dated August 5 for the purchase of 842 plastic baggies. According to Massetti, plastic baggies are commonl y used for distribution of narcotics, such as ecstasy. Additionally, four tickets, purchased on July 27, for one-way trips between New York and Norfolk 8 were found. The detectives also recove red a blue spiral notebook containing “drug

7 The jury was shown the gun and magazine during Detective Massetti’s testimony.

8 Although the bus depot is actually located in Virginia Beach, the discrepancy between the location identified on the tickets and the ac tual location of the bus depot was not addressed by the parties and is not relevant to the issues on appeal.- 6 - notes” consisting of quantities of narcotics, monetary value, and initials or other information identifying an individual associated with the narcotics. On the last page of the notebook the letters “GMNY” were recorded with th e figure of “1,000” next to the letters. After arresting the four occupants, $1,336 in cash was recovered from Bolton and $1,410
in cash was recovered from McDani els. The cash was subsequently screened with Sheena, and she alerted to the scent of illegal narcotic s on the money. When Massetti and Biswurm examined the call records in th e cell phones collected from Merritt, Bolton, and McDaniels, they discovered that Bolton’s cell phone contained the name “G Money” for the cell phone number of one of the phones found on Merritt. Massetti and Biswurm also determined there had been a large number of phone calls received and dial ed between these cell phones in the several preceding days. Upon questioning, Merritt told Massetti he di d not know the other occupants of the Lexus well. Merritt said he was walking to his girl friend’s house when Bolton stopped and offered him a ride. Bolton told Merritt he had to go to the bus depot first and instructed Merritt to get out of the car and walk to the bus when they arrive d there. Merritt claimed he did not know why Bolton wanted him to get out of the car or sta nd at the bus. When Massetti told Merritt the police saw him carry the suitc ase across the parking lot, 9 Merritt “quickly” replied, “Tony was the one who wheeled the bag across the parking lot.” When Massetti asked who “Tony” was, Merritt told him he was referri ng to McDaniels. After Massetti remarked he thought Merritt did not know him well, Merritt said he knew McDaniels from middle school. Massetti, who was trained at the local, state, and federal levels on narcotics distribution, and has worked hundreds of cases involving narcotics distribution as the lead detective, was

9 Massetti testified that he kne w McDaniels had the suitcase but he made this remark “for checks and balances” purposes in his questioning.- 7 - qualified at trial as an expert in illegal narcotics distribution. Massetti described the roles of individuals in drug distribution schemes and explained the primary dealer “has the money” and “does the distribution portion.” There is generally a “secondary pe rson that is the muscle of the outfit.” Massetti described the secondary pers on as “usually somebody that is either bigger physically in stature” or armed who protects the money or drugs. The “mules” are the individuals who are paid either by money or a portion of the drugs to retrieve the illegal narcotics and take the risk of bringing the drugs into the Commonwealth. In Ma ssetti’s opinion, Merritt was “an active part [of this drug scheme] as a mu scle in the organization.” Massetti explained the Western Union receipt proved Merritt was in New York and received money from Bolton just days before the drugs were transported into the Commonwealth. There were numerous phone calls between Bolton, Merritt, and McDani els in the days preceding the transaction. Merritt was observed shadowing Mc Daniels and Spratley after they departed from the bus and wheeled the suitcase containing drugs across the park ing lot. Massetti testified that the use of two cell phones is commonly used in the drug industry with one phone for personal use and the other phone for business use. Ma ssetti further stated Merritt’s close proximity to the gun and magazine was consistent with his role as the “muscle.” Massetti considered the designation of “GMNY” in the drug notebook significant because “G Money” was the identifier found in Bolton’s cell phone for the cell phone number of one of the cell phones found in Merritt’s pocket. Massetti testified the fact that Merri tt did not have drugs or money on his person was also consistent with his role as the “muscle” since he is the “saf ety guy,” whose role it is to make sure the drug transaction takes place without someone stealing the drugs or money. Detective Thomas Fowler, qualified as an e xpert in the use, pack aging, and distribution of narcotics, testified that posse ssion of 998 ecstasy pill s was inconsistent with personal use and was packaged for transportation and distribution. The value of each ecstasy tablet in Virginia- 8 - Beach and Hampton Roads is $15 to $30, and the sale of 998 tablets of ecstasy would generate a profit of $10,000 to $30,000. Detective Fowler also discussed the roles of individuals involved in a drug organization and described the “muscl e” of the organization as the “enforcer” or “lookout.” The functions of the “muscle” are to protec t the illegal narcotic s and “chase down” payments that are due. He is often willing to carry a firearm or other weapon and not afraid to use it. Detective Fowler stated the $125 sent from Bolton to Merritt in New York could have been payment for an additional night’s lodging or Merritt’s return home. In Detective Fowler’s opinion, the occupants of the Lexus were involved in a prearrange d drug transaction based on the quantity of drugs, the presence of a firearm, th e multiple cell phones, the large amount of cash emanating the scent of illegal na rcotics, and the Western Union r eceipt showing the transfer of money from Bolton to Merritt days before the transportation of the drugs into the Commonwealth.
III. ANALYSIS Merritt argues the evidence was insufficient to sustain his convictions because the Commonwealth’s theory he acted as a “muscle” or “lookout” in this illegal narcotics scheme was merely speculative and without sufficient evid entiary basis. Thus, reasons Merritt, the Commonwealth could not prove “Merritt possessed or had knowledge of the illegal drugs” or that he “participated as an accessory in any illegal drug activit y.” We disagree.
A. Evidence to Support Merritt’s Role as “Muscle” or “Lookout” Merritt and Bolton arrived at a bus depot know n as a major pipeline of narcotics into Virginia Beach in a vehicle that was ultimately pa rked in a dark area of the lot facing the road providing easy access to the highw ay. Merritt was observed “shadowing” the movements of McDaniels and Spratley, holding a cell phone to his ear without speaking into it or showing any emotion, and continually “scanning” the parking lot. While Bolt on placed the drugs into the- 9 - trunk of the vehicle, Merritt posted himself behi nd the vehicle as he continued to scan the parking lot. Merritt’s actions were described as being consiste nt with the actions undertaken by police officers conducting surveilla nce of undercover detectives in that Merritt at tempted to be covert, work with his environment, and act disinterested without draw ing attention to himself. In fact, Merritt’s actions to protect the safety of the drug transaction were compared to the actions of a surveillance officer in protecting the safety of an undercover officer. At no time did Merritt acknowledge McDaniels or Spratley while following them in the parking lot thus supporting the reasonable inference that he was not there to meet them and lead them to the vehicle. 10 The only logical inference from this evidence is that Merritt was acting as a lookout while McDaniels and Spratley transporte d the drugs through the parking lot. Although Merritt claimed not to know Bolton, McDaniels or Sp ratley well, he told Detective Massetti that “Tony” was the one who “wheeled the bag acros s the parking lot” indicating a sufficient familiarity with McDaniels to use a nickname. Furthermore, calls to McDaniels were found in Merritt’s cell phone. In fact, police discovered a large number of phone calls made between the cell phones found on Merritt, Bolton, and McDaniel s in the several days immediately preceding the arrest. In addition to Merritt’s acti ons at the bus station supporti ng his role as the “lookout” for this transaction and the phone calls linking him to the other individuals involved in the drug transaction, police recovered eviden ce at the scene showing Merrit t’s direct involvement in the transportation, possession, and distribution of illegal drugs. A pl astic baggie corner containing drug residue was found on the ground next to the front passenger’s door of the vehicle where Merritt was sitting, and its locati on and condition were consistent with having recently fallen out

10 Merritt’s explanation to Massetti that he wa s instructed by Bolton to get out of the car and walk to the bus upon their arrival, w ithout giving him any reason for doing so, was understandably rejected by th e jury as not credible.- 10 - of the front passenger’s side of the vehicle. W ithin the vehicle, police recovered a drug notebook containing notes regarding the s ubject drug transaction specifically identifying the transaction as “GMNY 1000,” which the jury could reasonably in fer referred to Glen Merritt, New York, or G Money, New York, and the quantity of ecstasy p ills, of which 998 were recovered by police. With this notebook were four bus tickets for tr ansportation between Norfolk and New York and receipts dated August 5 for a large number of baggies. In addition, the police recovered a Western Union receipt showing a payment of $ 125 from Bolton to Merritt that he received in New York on August 2. According to expert te stimony, Western Union is commonly used in the drug industry for payments for services and the $125 was likely sent to Merritt for an additional night’s stay in New York and/ or his transportation back to Virginia. Two cell phones were recovered from Merritt further suppo rting his involvement in the tr ansaction since the use of two cell phones is common in the narcotics trade. And one of Merritt’s cell phone numbers was identified as “G Money” in Bolton’s cell phone. The police f ound a handgun in the console next to where Merritt was sitting and the magazine “rea dy to go” in the glove compartment directly in front of where Merritt was sitting. Therefore, the jury could reasonably infer Merritt had access to a firearm and, as the Commonw ealth argued, could have been carrying the gun in the parking lot before he returned to the ve hicle. Furthermore, the jury was undoubtedly in the best position to observe Merritt and judge whether his stature was consistent with the role of a “muscle” or “lookout” in this transaction. Moreover, the jury was presented with expe rt testimony from Det ective Massetti, who gave an opinion, unchallenged on appeal, that based on his training, experience, and observations, Merritt was the “muscle” or “lookout” in this drug transaction. ‘“The jury has a right to weigh the testimony of all the witnesses, e xperts and otherwise.’” Hill v. Commonwealth , 8 Va. App. 60, 64, 379 S.E.2d 134, 137 (1989) ( en banc ) (quoting Martin v.- 11 - Penn , 204 Va. 822, 826, 134 S.E.2d 305, 307 (1964)). The conclusions of the fact finder on issues of witness credibility “may only be dist urbed on appeal if this Court finds that [the witness’] . . . testimony was ‘inhere ntly incredible, or so contrary to human experience as to render it unworthy of belief.’” Robertson v. Commonwealth , 12 Va. App. 854, 858, 406 S.E.2d 417, 419 (1991) (quoting Fisher v. Commonwealth , 228 Va. 296, 299-300, 321 S.E.2d 202, 204 (1984)). “These same principles apply to the testimony of both expert and lay witnesses.” Moyer v. Commonwealth , 33 Va. App. 8, 28, 531 S.E.2d 580, 590 (2000) ( en banc ). It is clear the jury accepted the testimony of Detective Massetti, and we cannot say his testimony was inherently incredible or unworthy of belief. In sum, from this evidence, the jury could re asonably infer Merritt was in New York days before the arrest to arrange the purchase of 1,000 ecstasy pills when he received money from Bolton and served as the “muscle” or “lookout” as the drugs were transported for the purpose of further distribution. We may not “‘substitute ou r judgment for that of the trier of fact,’” Wactor v. Commonwealth , 38 Va. App. 375, 380, 564 S.E.2d 160, 162 (2002) (quoting Commonwealth v. Presley , 256 Va. 465, 466, 507 S.E.2d 72, 72 (1998)), no r may we “reweigh the evidence,” Nusbaum v. Berlin , 273 Va. 385, 408, 641 S.E.2d 494, 507 (2007), because we have no authority “to preside de novo over a second trial,” Haskins v. Commonwealth , 44 Va. App. 1, 11, 602 S.E.2d 402, 407 (2004).
B. Sufficiency of Evidence to Support Convictions Since it was reasonable for the jury to infer fr om this evidence that Merritt served as the “muscle” or “lookout” in this drug transaction, the jury could rationally find Merritt guilty of aiding and abetting in the possessio n of ecstasy with intent to di stribute, aiding and abetting in the transportation into the Commonwealth of ecstas y with intent to distri bute, and conspiracy to distribute ecstasy.- 12 - 1. Possession With Intent To Distribute 11 “To convict a defendant of illegal possessi on of drugs, the Commonwealth must prove that the defendant was aware of the presence and character of the drugs, a nd that he intentionally and consciously possessed them.” Andrews v. Commonwealth , 216 Va. 179, 182, 217 S.E.2d 812, 814 (1975). “[P]roof of actual possession is not required; proof of constructive possession will suffice. Constructive possession may be established when there are acts, statements, or conduc t of the accused or other facts or circumstances which tend to show that the [accused] was aware of both the presence and character of the substa nce and that it was subject to his dominion and control.” Wilson v. Commonwealth , 272 Va. 19, 27, 630 S.E.2d 326, 330 (2006) (quoting Walton v. Commonwealth , 255 Va. 422, 426, 497 S.E.2d 869, 872 (1998)) (internal quotation marks and citation omitted). “Possession . . . need not be exclusive, but may instead be joint.” Archer v. Commonwealth , 225 Va. 416, 418, 303 S.E.2d 863, 863 (1983). The jury was instructed that it could fi nd Merritt guilty as a principal in the second degree. To hold Merritt accountab le as a principal in the seco nd degree, the Commonwealth was required to show that Merritt was present, aidi ng and abetting in the possession of the ecstasy. McGill v. Commonwealth , 24 Va. App. 728, 733, 485 S.E.2d 173, 175 (1997). A principal in the second degree is one not the perpetrator, but present, aiding and abetting the act done, or keeping watch or guard at some convenient distance. * * * Every person who is present at the commission of a [cri me], encouraging or inciting the same by words, gestures, looks, or signs, or who in any way, or by any means, countenances or approves the same is, in law, assumed to be an aider and abettor, and is liable as principal.

11 Due to the uncontested evidence that the qua ntity of ecstasy was inconsistent with personal use, Merritt does not argue that the Commonwealth failed to prove the drugs were possessed with the intent to distribute, rather that they were not possessed by him.- 13 - Foster v. Commonwealth , 179 Va. 96, 99, 18 S.E.2d 314, 315-16 (1942) (internal quotation marks and citation omitted); see also Dunn v. Commonwealth , 52 Va. App. 611, 665 S.E.2d 868 (2008) ( en banc ); Pugliese v. Commonwealth , 16 Va. App. 82, 428 S.E.2d 16 (1993). Having found Merritt to be the “muscle” or “lookout” in this drug transportation scheme, it was reasonable for the jury to conclude Merri tt was aware of the presen ce and character of the ecstasy and that he aided and abetted his compan ions in their possession a nd intent to distribute the ecstasy. His role, as found by the jury, was to be present at the bus depot when McDaniels and Spratley brought the ecstasy off the bus, follo w them as they carried the ecstasy to the vehicle, and keep a lookout as th e ecstasy was placed in the trunk of the vehicle. As such, the evidence was sufficient to prove Merritt was “pre sent lending countenance, or otherwise aiding” the possession of the drugs with intent to distribute. Muhammad v. Commonwealth , 269 Va. 451, 482, 619 S.E.2d 16, 32 (2005). 2. Transportation into Virginia To prove Merritt was guilty of transporting ecs tasy with the intent to distribute, the Commonwealth was required to prove he transpor ted more than one ounce of ecstasy “into the Commonwealth by any means with intent to sell or distribute [it].” Code § 18.2-248.01. Merritt does not contend that the Commonw ealth failed to prove more than one ounce of ecstasy was transported into the Commonwealth with the intent to distribute it, but that the Commonwealth failed to prove his role as “muscle” or “lookout” in this transaction and th us, his participation as an accessory. To hold Merritt accountable as a principal in the second degree, the Commonwealth was required to show that Merr itt was present, aiding and abetting in the transportation of the ecstasy with the intent to distribute it. McGill , 24 Va. App. at 733, 485 S.E.2d at 175. The drug notebook found by police cont ained an entry associ ating Merritt to this transaction by designating the transaction as “GMNY 1000.” Based on the Western Union- 14 - receipt for cash wired from Bolton to Merritt in New York on August 2, the jury could infer Merritt was there to arrange the purchase of the ecstasy for transportation into Virginia. And Merritt acted to ensure the succe ssful transportation of the ecstasy into Virginia by serving as a “lookout” when McDaniels retrieved the drugs from the bus and carried them to the vehicle. Accordingly, we conclude the evidence was su fficient to prove Merrit t was “present lending countenance, or otherwise aiding” his companions in the transportation of the drugs into the Commonwealth with intent to distribute them. Muhammad , 269 Va. at 482, 619 S.E.2d at 32. 3. Conspiracy to Distribute To prove a conspiracy, the Commonwealth was required to show “‘an agreement between two or more persons by some concerte d action to commit [posse ssion of ecstasy with intent to distribute].’” Wright v. Commonwealth , 224 Va. 502, 506, 297 S.E.2d 711, 713 (1982) (quoting Falden v. Commonwealth , 167 Va. 542, 544, 189 S.E. 326, 327 (1937)); Williams v. Commonwealth , 53 Va. App. 50, 59-60, 669 S.E.2d 354, 358 (2008). “Because most conspiracies are ‘cla ndestine in nature,’ 2 Wayne R. LaFave, Substantive Criminal Law § 12.2(a), at 266 (2d ed. 2003), by ‘the very nature of the offense, it often may be established only by indirect and ci rcumstantial evidence,’ Wright , 224 Va. at 505, 297 S.E.2d at 713.” James v. Commonwealth , 53 Va. App. 671, 678, 674 S.E.2d 571, 575 (2009) (internal quotation marks omitted). The jury found Merritt was the “muscle” or “lookout” in this ille gal drug transaction involving the transportation of 998 tablets of ecstasy into the Co mmonwealth. In so finding, the jury concluded Merritt arrived at the depot to meet the bus arriving from New York for the purpose of providing security as th e drugs were removed from the bus and carried to the vehicle. The evidence included phone calls between Merritt, Bolton, and McDaniels in the days preceding the transaction, a Western Union rece ipt showing Bolton wired Merritt money while- 15 - Merritt was in New York City just days befo re the transaction, the written notation, “GMNY 1000,” in the drug notebook found with Bolton, a r eceipt for plastic baggies purchased days before the transaction, and four one-way tickets to and from New York purchased before the transaction. Based on this evidence, it was reasonable for the ju ry to conclude, as testified to by Detective Fowler, that this was a prearranged trans action and to infer that Merritt agreed with his companions to serve as the “muscle” or “lookout” in their plan to transport ecstasy into the Commonwealth and possess it with the intent to distribute it. When it has been shown that the defendants “by their acts pursued the same object , one performing one part and the others performing another part so as to complete it or w ith a view to its attainment, the [fact finder] will be justified in concluding that they were engaged in a conspiracy to effect that object.” Charity v. Commonwealth , 49 Va. App. 581, 586, 643 S.E.2d 503, 505 (2007) (emphasis added and citation omitted). Accordingly, we find the jury was justified in concluding that Merritt was engaged in a conspiracy to possess ecstasy with the intent to distribute it.
IV. CONCLUSION For the foregoing reasons, we affirm the judgment of the trial court.

Affirmed.- 16 - Humphreys, J., with whom Elder and Alston, JJ. join, dissenting. I agree with the majority’s general propositi on that if Glen Patric k Merritt (“Merritt”) was the “muscle” or “enforcer” for the drug dealers he associated with in this case, the evidence might arguably be sufficient to support the conc lusion that he was aiding and abetting in the possession with the intent to di stribute, transportation with th e intent to distribute, and conspiracy to distribute the ecstasy. However, I respectfully dissent from the majority’s holding that the evidence was sufficient as a matter of law to convict Merritt solely on the theory that he was aware of the contents of the suitcase ba sed upon the sheer specula tion and suspicion of police officers that he acted in a role of “lookout,” “enforcer,” or the “muscle,” safeguarding the transportation of the drug ecsta sy into the Commonwealth. McMorris v. Commonwealth , 276 Va. 500, 506, 666 S.E.2d 348, 351 (2008) (“[T]o sustain a criminal conviction, the Commonwealth is required to prove more than a suspicion of guilt or probability of guilt.” (citation omitted)). Simply being present when a crime occurs does not subject one to criminal liability. The gravamen of being a principal in the second degree to the criminal acts of ot hers is either actually or constructively aiding and abetting in the commission of the crime. Muhammad v. Commonwealth , 269 Va. 451, 482, 619 S.E.2d 16, 32-33 (2005) (“‘A principal in the second degree, or an aider or abettor as he is someti mes termed, is one who is present, actually or constructively, assisting th e perpetrator in the commission of the crime. . . . The test is whether or not he was encouraging, inciting, or in some manner offering aid in the commission of the crime. If he was present lending countenance, or otherwise aiding while another did the act, he is an aider and abettor or princi pal in the second degree.’” (quoting Jones v. Commonwealth , 208 Va. 370, 372-73, 157 S.E.2d 907, 909 (1967))). The major ity holds that a reasonable jury could infer from both circumstantial and direct evidence that Merritt aided in the commission of these- 17 - crimes by being the “enforcer” or the “muscle” in the drug transaction. However, the record in this case is bereft of any circumstantial or direct evidence that woul d support a fact finder’s rational conclusion, without resort ing to speculation, that Merritt pr ovided any such assistance by protecting McDaniels and Spratley who possessed and transported the drugs in the suitcase and that he conspired to distribute the drugs. While a fact finder is entitled to draw reasonable inferences from proven facts, “all circumstances proved must be consistent with guilt and inconsistent with innocence and exclude all reas onable conclusions inconsistent with guilt.” McMorris , 276 Va. at 506, 666 S.E.2d at 351 (citations om itted). Two police experts testified at trial regarding the role of the “muscle” or “enforcer” in a dr ug transaction. Detective Massetti testified that the individual is typically bigger physically or arme d in order to protect the product or the distributor. Massetti further provided that in scenarios like this, it is typical “for them to use . . . a large guy who’s armed,” as the “muscle, ” “and his job is to keep an eye out and make sure nothing negative happens.” According to Detective Fowl er, the primary purpose of the “enforcer” or “lookout” is to prot ect the product or the distributor to ensure that the transaction goes smoothly, while his secondary purpose is to accept or “chase[] down” payments for the drugs. In addition, Fowler stated that the “enforc er” is often willing to carry a firearm or some other weapon, and he is not afraid to use it because of his primary purpose. Fowler further stated that in his opinion, based on his training and expe rience, the transaction in this case was a drug transaction; and Massetti opined that, based on his observations as an expert and the facts of what occurred that evening, Merritt “was clearly th e muscle in this.” However, the evidence in the record does not support Massetti’s opinion, no r does it support the inferences drawn from the speculations and suspicions imp licit in Fowler’s testimony. The evidence fails to show that Merritt meet s the physical description provided by either expert witness regarding requisite physical attrib utes of an “enforcer” or “muscle” of a criminal- 18 - group. There is no evidence in the record that Me rritt was bigger than av erage physically, nor is there any evidence regarding the stature of the other individuals in th e drug transaction from which a jury could reasonably conclude that Merritt was clearly the “muscle” due to his physique. In addition, there is no evidence that he was armed with a firearm or other weapon suitable either for protecting his associates or for “chas[ing] down” payments from recalcitrant consumers during the time in question. The only weapon found on Merritt was a small penknife that was part of his belt buckle. With regard to the gun found in the vehicle, Bolton was the one who informed the officers of its presence and lo cation, and he claimed ownership of it. While the majority contends that a ju ry could reasonably infer that be cause Merritt was sitting in the passenger seat close to the loca tion of the gun and magazine, he may have had it on his person while he was in the parking lot; yet, far from constituting a reasonable inference, this speculation by the majority is unsupported by any evidence in the record and is a good example of the sandy foundation upon which the Commonwea lth’s case against Merri tt was built. It is just as easy to speculate that the gun and magazi ne were never on Merritt’s pers on or that he actually had no knowledge of their presence in th e vehicle. The location of the gun in the console and the magazine in the glove compartment does nothing to bolster the majority’s contention that Merritt had access to the firearm, necessarily knew about its presence in the vehicle, or that he had it on his person in the parking lot before he returned to the vehicle. It is certainly a possibility th at Merritt was involved as a prin cipal in the illegal activities of his associates but that possibility is legall y insufficient for a conviction, and neither is guilt by association a substitute for evid ence that establishes involvement in a criminal enterprise beyond a reasonable doubt. Even viewing th e facts contained in this record in the light most favorable to the Commonwealth, without resorting to the sheerest compound speculation, the evidence does not lead only to the logical inference that Merritt was there to protect Bolton, McDaniels,- 19 - Spratley, and the ecstasy. Merritt arrived at the bus depot wi th Bolton, got out of the vehicle, and stood at various positions in the parking lot while holding a cell phone to his ear without talking into it or changing facial expressions . During his sojourn in the parking lot, Merritt remained attentive, and continuously scanned th e parking lot, and, according to the officers, followed and shadowed McDaniels and Spratley. The officers testified that Merritt’s actions were similar to those of a surveillance officer protecting the safety of an undercover officer. Merritt then walked fifteen to thirty feet behind McDaniels and Spratley as they walked towards the Lexus, thus turning his back to th e bus and those standing around it. When they loaded the suitcase into the trunk, Merritt stood a short distance behind the vehicle and continued to scan the parking lot. Me rritt never acknowledged McDaniel s and Spratley, nor did he touch the suitcase containing the drugs. After everyone entered the vehicle, Merritt returned to the passenger seat. In looking at Me rritt’s actions during his time in the parking lot, while it is certainly reasonable to suspect Me rritt’s involvement in his asso ciates’ activities, the evidence simply does not rise to the level of circum stantially demonstrating beyond a reasonable doubt that Merritt aided and abetted his companions as the “muscl e” or “lookout” of the group. In addition, there is no directevidence linking Merritt to the actual drug transaction. The only direct evidence regarding Me rritt is the Western Union recei pt noting that Bolton sent him $125 in New York City a few days prior to the da te in question. While Fowler testified as an expert as to various possible reasons for the m oney, Fowler admitted that he ultimately had no idea what it was for. All the ot her evidence is purely circumstantia l in nature, and even in its totality, does not exclude all reason able conclusions inconsistent wi th guilt. With regard to the cell phones, the record merely re flects that there were phone calls made between the phones found on Merritt and McDaniels an d Bolton, but it does not es tablish to whom the phone numbers were registered or what the phone calls were regarding. In addition, the fact that the- 20 - number of one of the cell phones found on Merritt is designated as “G Money” in Bolton’s phone provides nothing more than a postulation that Bo lton actually referred to Merritt by that alias in any interaction with him. Further, the lack of evidence regarding the notation “GMNY 1000” in the notebook does nothing except provide a vehi cle for the speculation engaged in by the majority as to what that reference means. Th ere is no evidence in th e record that the phones found on Merritt actually belonged to him, or th at the drug notebook belonged to Bolton such that the notation “GMNY 1000” could only mean “G M oney” and thus referred solely to Merritt. While the location and condition of the plastic baggie corner was consistent with it having recently fallen out of the vehicle’s pass enger door, the record is devoid of any evidence that the only logical inference is that the baggie was in Merritt’s possession before it fell out of the car. The plastic baggie corner was, accord ing to Fowler’s testimony regarding the packaging of drugs, consistent with drugs packaged for personal use, and no latent fingerprints were obtained from it linking it to Merritt. In addition, there is no evidence regarding the owner of the drug notebook found in the back seat by Bolton. Ne ither the four bus ticke ts for transportation between Norfolk and New York nor the receipt for the large number of baggies found in the back seat contain any indication of who made the purchases. The majority contends, “the only logical infere nce from this evidence is that Merritt was acting as a lookout while McDaniel s and Spratley transported the drugs through the parking lot.” Yet, while it may be logical to suspect Merritt’s involvement, that is not the only logical inference supported by the evidence in this record. If we resist the temptation to speculate and just consider whether the evidence points inexorably toward guilt, two conclusions quickly emerge. First, as “enforcers” go, Merritt would nothave been able to provide much in the way of protection because the only weapon found on him was the small penknife in his belt, he was walking fifteen to thirty feet be hind McDaniels and Spratley with hi s back to the bus and the rest- 21 - of the parking lot, and he proceeded to stand be hind the vehicle several feet away from where the gun and its separate magazine were located in the glove compartment and center console of the vehicle while the others loaded the suitcase in to the trunk. Second, the Western Union receipt merely shows that Merritt was in New York days before the arrest and that he received only $125 – a sum that hardly seems consistent with payment for involvement in a major drug transaction as intricate as that described by the ex pert witnesses who testified in this case. In looking at the totality of the ev idence presented by this record , I find it legally insufficient to prove more than a suspicion that Merritt was aidi ng and abetting as the “muscle” or “enforcer” of the drug transaction and thus wa s a principal in the second degree to his associates’ criminal activities. The evidence when viewed in the light most favorab le to the Commonwealth does not “exclude all reasonable conclusions inconsistent with guilt.” McMorris , 276 Va. at 506, 666 S.E.2d at 351 (citations omitted). Because I would hold that the evidence pres ented was not sufficient to negate every reasonable hypothesis consistent with innocence, I would hold that the tria l court erred in letting the jury determine whether Merritt was guilty of aiding and abetting in the possession of ecstasy with the intent to distribute, tran sportation of ecstasy w ith intent to distribu te, and conspiracy to distribute ecstasy. Thus, I would reverse th e convictions and dismiss the indictment.