COURT OF APPEALS OF VIRGINIA 

Present: Judges Elder, Fitzpatrick and Annunziata 

Argued at Richmond, Virginia 

TIMOTHY JOSEPH LEVI 

 MEMORANDUM OPINION* BY 

v. Record No. 2640-96-2 JUDGE LARRY G. ELDER 

 SEPTEMBER 16, 1997 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND 

James B. Wilkinson, Judge 

 Kevin M. Schork (Epperly, Follis & Schork, 

P.C., on brief), for appellant. 

 Robert H. Anderson, III, Assistant Attorney 

General (James S. Gilmore, III, Attorney 

General, on brief), for appellee. 

 Timothy Joseph Levi (appellant) appeals his convictions of 

two counts of conspiracy to distribute heroin in violation of 

Code § 18.2-256.1 He contends that the evidence was insufficient 

to prove that he entered into an agreement with either Corey 

Jones or "Darrell"2 to distribute heroin. For the reasons that 

follow, we affirm. 

 Under Code § 18.2-256, it is illegal for any person to 

conspire to commit any offense defined in either the article of 

the criminal code dealing with drug-related crimes or in the Drug 

 

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

designated for publication. 

 1Appellant was also convicted of two counts of distributing 

heroin in violation of Code § 18.2-248. He does not appeal 

either of these convictions. 

 2The evidence admitted at trial did not establish Darrell's 

last name. 
 2 

Control Act. Although Code § 18.2-256 does not set forth the 

meaning of "conspire," its definition is well established. "A 

conspiracy is 'an agreement between two or more persons by some 

concerted action to commit an offense.'" Hudak v. Commonwealth, 

 19 Va. App. 260, 262, 450 S.E.2d 769, 771 (1994) (citations 

omitted). 

 The existence of an actual agreement between two or more 

persons is an essential element of the crime of conspiracy. See

Fortune v. Commonwealth, 12 Va. App. 643, 647, 406 S.E.2d 47, 48 

(1991). 

 In order to establish the existence of a 

conspiracy, as opposed to mere aiding and 

abetting, the Commonwealth must prove "the 

additional element of preconcert and 

connivance not necessarily inherent in the 

mere joint activity common to aiding and 

abetting." 

Zuniga v. Commonwealth, 7 Va. App. 523, 527, 375 S.E.2d 381, 384 

(1988) (citation omitted). The existence of an agreement between 

an accused and another person to commit an offense may be proved 

by circumstantial evidence. See Schultz v. Commonwealth, 6 Va. 

App. 439, 442-43, 369 S.E.2d 215, 217 (1988) (citing Floyd v. 

Commonwealth, 219 Va. 575, 580, 249 S.E.2d 171, 174 (1974)). 

"[A] formal agreement need not be shown" and "a conspiracy 'can 

be inferred from the overt conduct of the parties.'" Id. at 443, 
 3 

369 S.E.2d at 217 (citation omitted). 

 When the sufficiency of the evidence to prove conspiracy is 

challenged on appeal, "the evidence must be viewed in the light 

most favorable to the Commonwealth, granting to it all reasonable 

inferences fairly deducible therefrom." Feigley v. Commonwealth, 

16 Va. App. 717, 722, 432 S.E.2d 520, 523-24 (1988) (citing 

Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 

537 (1975)). The jury's verdict will not be disturbed unless 

plainly wrong or without evidence to support it. See Traverso v. 

Commonwealth, 6 Va. App. 172, 176, 366 S.E.2d 719, 721 (1988). 

 First, we conclude that the evidence was insufficient to 

prove the existence of a conspiracy between appellant and Jones. 

 During both transactions for which appellant was charged with 

conspiracy, Jones was working as a confidential informant -- an 

agent of the police. Because Jones was not a "bona fide 

co-conspirator," there could be no "meeting of the minds" as a 

matter of law between him and appellant to distribute heroin to 

Detective Foster. See Fortune, 12 Va. App. at 648, 406 S.E.2d at 

49. 

 However, we also conclude that the evidence was sufficient 

to support the jury's conclusion that appellant entered into an 

agreement with Darrell to distribute heroin. Jones' testimony 

regarding the conduct of Darrell and appellant on December 7 and 

12 and the tape of the telephone conversation between Darrell and 

Jones indicates that Darrell and appellant had previously agreed 
 4 

to sell heroin. The integral role played by Darrell in both 

transactions and the orchestrated nature of his participation 

supports the reasonable inference that he both knew of 

appellant's plan to sell heroin to Jones and had earlier formed 

the intent to cooperate in the venture. From his initial phone 

call to Jones on behalf of appellant to his continuous 

chauffeuring of appellant and Jones throughout all of the pivotal 

points of both deals, Darrell's coordinated participation 

indicates that he and appellant were working together pursuant to 

a prior agreement. 

 Because we cannot say that the jury's conclusion that 

appellant entered into an agreement with Darrell to distribute 

heroin was either plainly wrong or unsupported by the evidence, 

we affirm the convictions of conspiracy to distribute heroin. 

Affirmed.