COURT OF APPEALS OF VIRGINIA

Present: Ch ief Judge Huff, * Judges Chafin and Decker Argued at Richmond, Virginia

GIANNA BIANCHA CICILESE MEMORANDUM OPINION ** BY v. Record No. 2210-13-2 JUDGE TERESA M. CHAFIN FEBRUARY 10, 2015 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF SPOTSYLVANIA COUNTY Joseph J. Ellis, Judge Teresa L. Pagliaro for appellant. David M. Uberman, Assistant A ttorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Gianna Biancha Cicilese (“Cici lese”) was convicted of conspi racy to distribute marijuana in violation of Code § 18.2-256 atthe conclusion of a bench tria l held in the Circuit Court of Spotsylvania County (“circuit court”). 1 On appeal, she challenges the sufficiency of the evidence supporting her conviction. Specifically, Cicilese contends that the evidence failed to establish that she conspired with another individual to distribute marijuana. For the reasons that follow, we agree with Cicilese’s ar gument and revers e her conviction.

* On January 15, 2015, Judge Huff succeeded Judge Felton as chief judge.

** Pursuant to Code § 17.1-413, this opin ion is not designa ted for publication.

1 Cicilese was also convicted of possession with the intent to distri bute more than five pounds of marijuana in violation of Code § 18.2-248.1. Although Cicilese challenged the sufficiency of the evidence supporting this convicti on, this Court denied her assignment of error concerning this conviction on August 22, 2014. Accord ingly, this conviction is not before this Court in this appeal.UNPUBLISHED- 2 - I. BACKGROUND “On appeal, ‘we review the ev idence in the light most fa vorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom.’” Archer v. Commonwealth, 26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997) (quo ting Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987)). So viewed, the evidence established that Cicilese lived in Spotsylvania County with he r parents and her child. On A ugust 10, 2012, United States Postal Inspector Ann Hill (“Hill”) contacted Detective Ray Haney, III, (“Haney”) of the Spotsylvania Sheriff’s Office concerning a suspicious package a ddressed to Cicilese’s re sidence. The package was sent by an individual identified on the sh ipping label as Mike Estrada from Berkeley, California, and it was addressed to a “B.C. Company” at Cicilese’s residential address. When Hill and Haney opened the package pursuant to a fe deral search warrant, they discovered that it contained six and a half pounds of marijuan a packed in vacuum-sealed plastic bags. Hill and Haney decided to deliver the pack age to Cicilese’s residence, and Haney obtained an anticipatory warrant to search the re sidence after the packag e was delivered. When Hill delivered the package in an undercover capacity later that mo rning, Cicilese’s father came out of the house “almost immediately” and accepte d delivery of the package near her mail truck. Haney and other police officers executed the sear ch warrant approximately five to ten minutes later. The police found Cicilese in an upstair s bathroom and the unopened package sitting just inside the door to the residence. Cicilese and her father were detained while the police searched the house, and the police read Ci cilese her Miranda rights. Ci cilese was distraught, and she screamed that the search was “just a governme nt conspiracy against her and her father.” The police found evidence of marijuana use and distribution in almost every room of the house. In Cicilese’s bedroom, the police f ound three glass tubs containing small amounts of marijuana labeled by type or strain and a scale capable of weighing pounds of marijuana. They- 3 - also found a marijuana grinder, a marijuana smok ing device, a plastic bag containing smaller plastic baggies, and $2,000 in cash separated into $1,000 increments in her room. A disposable cell phone found in Cicilese’s bedroom had receiveda text message on the morning of the search that said “the package was scanned at 10:18 in Spotsylvania and should be delivered soon.” The package Hill delivered to the house that morni ng was scanned at the post office “[s]ometime close to the 10:18 mark.” The police found a hollowed-out book in the bathroom adjoining Cicilese’s bedroom that contained numerous plastic baggi es and a small digital scale. The book also contained a small piece of orange paper and two spiral notebooks that were later identified as “owe sheets” referencing transactions where marijuana was so ld to other individuals on credit. A gold notebook that contained similar owe sheets refere ncing specific prices charged for various amounts of marijuana was found in a drawer in a downstairs computer room. Small amounts of marijuana and additional marijuana smoking devices were found in the computer room and in the bedroom of Cicilese’s parents. Cicilese was arrested following the search and charged with cons piracy to distribute marijuana in violation of Code § 18.2-256. 2 Specifically, a grand jury returned a true bill that indicted Cicilese for the following offense: “GIANNA BIANCHA CICILESE On or about August 10, 2012 , did conspire, confederate, or combin e with one or more other persons to manufacture, sell, give or distribute marijuana, in violation of [Code] §§18.2-256; 18.2-10 of the Code of Virginia (1950) as amended.” (Emphasis added). Haney was the only witness that testified at Cicilese’s trial. The circuit court qualified him as an expert in “marijuana packaging and dist ribution in the County of Spotsylvania . . . and

2 As previously noted, Cicilese was also ch arged with possession with the intent to distribute more than five pounds of ma rijuana in violation of Code § 18.2-248.1.- 4 - also in the field of marijuana importation by U. S. mail deliveries in Spotsylvania.” Haney described the events leading up to the execution of the search warrant and the items seized from Cicilese’s residence. He also testified that six and a half pounds of marijuana was an amount inconsistent with personal us e and that the six an d a half pounds of marijuana delivered to Cicilese’s residence had an approximate valu e of $30,000. Haney testifie d that the amount of marijuana delivered to Cicilese’s home, the pr esence of plastic baggies and scales, and the amount of bundled cash found in her bedroom were c onsistent with the distribution of marijuana. Based on the prices listed in the owe sheet s found in the gold notebook, Haney concluded that someone living in Cicilese’s residence wa s selling marijuana for approximately $325 per ounce. From this price, Haney determined that the amounts of marijuana so ld in each transaction varied. Haney believed that “anywhere from sm all gram amounts . . . all the way up to quarter pounds to half pounds” of marijuana were being soldto other individuals on credit, without the seller demanding full payment at the time of each transaction. According to Haney, the owe sheets showed that three people had purchased a half a pound of marijuana each. Haney testified that an individual buying a half-pound of marijuana was likely buying it for resale. Haney noted that the handwriting on the owe sh eets was written in two distinct styles. The handwriting on one of the owe sheets was in cursive, while the handwriting on the other owe sheet was in print. Haney admitted, however, that both sets of handwriting could have been written by a single person and recognized that a person may change his or her style of handwriting. Neither party presented expert testimony providing analysis of the handwriting, and the owe sheets and the gold note book were admitted into evidence. Cicilese moved to strike the conspiracy charge against her at the close of the Commonwealth’s evidence. In response, the Commonwealth argued that the evidence established “three really str ong indicia of conspiracy.” Th e Commonwealth argued that the- 5 - different sets of handwriting on the owe sheets showed that more than one person worked on them. The Commonwealth then argued that another individual had to mail the package containing the marijuana to Cicilese from Califor nia. The Commonwealth also contended that Cicilese incriminated her father as a co-conspi rator in her distribution enterprise when she claimed that the government was conspiring ag ainst them collectively. The Commonwealth concluded that each of these circumstances established that Cicilese conspired with another individual to distribute marijuan a. The circuit court agreed and denied Cicilese’s motion to strike the conspiracy charge. Ci cilese renewed her motion to strike at the close of all evidence, and the circuit denied her motion and convicted he r of the charged offense. Cicilese appealed her conviction to this Court.
II. ANALYSIS When considering the sufficiency of the evidence on appeal, we “presume the judgment of the trial court to be correct” and reverse only if the trial court’ s decision is “plainly wrong or without evidence to support it.” Davis v. Commonwealt h, 39 Va. App. 96, 99, 570 S.E.2d 875, 876-77 (2002); see also McGee v. Common wealth, 25 Va. App. 193, 197-98, 487 S.E.2d 259, 261 (1997) ( en banc ). Under this standar d, “a reviewing court does not ‘ask itself whether it believes that the evidence at the trial estab lished guilt beyond a reasonable doubt.’” Crowder v. Commonwealth, 41 Va. App. 658, 662, 588 S.E.2d 384, 387 (2003) (quoting Jackson v. Virginia, 443 U.S. 307, 318-19 (1979)). Itasks instead whether “‘ any rational trier of fact could have found the essential elements of the crime be yond a reasonable doubt.’” Kelly v. Commonwealth, 41 Va. App. 250, 257, 584 S.E.2d 444, 447 (2003) ( en banc ) (quoting Jackson, 443 U.S. at 319). We do not “substitute our judgment for that of th e trier of fact” even if our opinion were to differ. Wactor v. Commonwealth, 38 Va . App. 375, 380, 564 S.E.2d 160, 162 (2002). “This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts- 6 - in the testimony, to weigh the evid ence, and to draw reasonable in ferences from basic facts to ultimate facts.” Jackson, 443 U.S. at 319. “Conspiracy is defined as ‘an agreement betw een two or more persons by some concerted action to commit an offense.’” Zunigav. Commonwealth, 7 Va. App. 523, 527, 375 S.E.2d 381, 384 (1988) (quoting Wright v. Commonwealth, 224 Va. 502, 505, 297 S.E.2d 711, 713 (1982)). “The agreement is the essence of the offense; it is not necessary that the crime be fully consummated.” Merritt v. Commonwealt h, 55 Va. App. 719, 734, 689 S.E.2d 757, 765 (2010) (quoting Hodge v. Commonwealth, 7 Va. A pp. 351, 355, 374 S.E.2d 76, 79 (1988)). “[A] defendant may wittingly aid a criminal act and be lia ble as an aider and abe ttor, but not be liable for conspiracy, which requires knowledge of and voluntary participation in an agreement to do an illegal act.” Zuniga, 7 Va. App. at 527, 375 S.E.2d at 384 (alteration in original) (quoting United States v. Bright, 630 F .2d 804, 813 (5th Cir. 1980)). “‘[T]he Commonwealth must prove beyond a reasonable doubt that an agreement existed.’” Id. at 528, 375 S.E.2d at 384 (quoting Floyd v. Commonwealth, 219 Va. 575, 580, 249 S.E.2d 171, 174 (1978)). However, “‘[a] co nspiracy may be proved by circumstantial evidence. Indeed, from the very nature of the offense, [a conspiracy] often may be established only by indirect and ci rcumstantial evidence.’” Merritt, 55 Va. App. at 734, 689 S.E.2d at 765 (quoting Hodge, 7 Va. App. at 355, 374 S.E.2d at 79). An explicit agreement to commit an offense is not required, and “[a] common purpose and plan may be inferred from a ‘development and collocation of circumstances.’” Brow n v. Commonwealth, 10 Va. App. 73, 77, 390 S.E.2d 386, 388 (1990) (quoting United States v. Godel, 361 F.2d 21, 23 (4th Cir.), cert. denied, 385 U.S. 838 (1966)). Cicilese contends that the evidence presen ted by the Commonwealth failed to prove that she conspired with another individual to distri bute marijuana on Augus t 10, 2012. We agree.- 7 - While the evidence was sufficient to prove that Ci cilese intended to distribute the marijuana she received on August 10, 2012, it was insufficient to a llow a factfinder to conc lude that Cicilese agreed with anyone to distribute marijuana on that date. Specifically, the evidence failed to establish that Cicilese conspired to distribute marijuana with: (1 ) the individual that shipped the marijuana to her from California, (2) the thr ee individuals identified in the owe sheets that received half pounds of marijuana from her on credit, or (3) her father.
A. THE CALIFORNIA SHIPPER “[E]vidence of a distribution offense absent an agreement will not suffice to support a conspiracy conviction.” Zuniga, 7 Va. App. at 528, 375 S.E.2d at 385. “As a general rule a single buyer-seller relationship, standing alone, doe s not constitute a conspiracy.” Id. To establish a conspiracy to distri bute an illegal drug, the evidence must demonstrate “(1) ‘that the seller knows the buyer’s intended il legal use,’ and (2) that by the sale [the seller] intends to further, promote and cooperate in [the venture] .’” Id. at 529, 375 S.E.2d at 385 (alterations in original) (quoting Direct Sales Co. v. United States, 319 U.S. 703, 711 (1943)). When a seller sells a significant quantity of an illegal drug to a buyer, the seller can infer that the buyer intends to furthe r distribute the drug illegally. See Zuniga, 7 Va. App. at 529, 375 S.E.2d at 385. “Proof of such knowledge alone, how ever, is insufficient to convict” a person of conspiracy to distribute an illegal drug. Id. Th e crucial issue to be determined is whether the evidence demonstrated that that the seller “inten d[ed] to further, promote and cooperate in” the distribution venture. Id. The evidence does not have to establis h that the seller “knew the entire scope or details of the plan of distribution.” Id. at 531, 375 S.E.2d at 386. Rather, the evidence only needs to establish that the sell er was aware of “the essential nature of th e scheme.” Id. The evidence does not have to establish a “regul ar, sustained and prolonge d” course of conduct between the buyer and the seller, but evidence of a cr edit relationship between the parties may- 8 - demonstrate that the seller intended to further, promote, and cooperate inthe buyer’s enterprise. See id. at 530-31, 375 S.E.2d at 386. In the present case, no evidence established th at the individual who shipped the marijuana to Cicilese from California intended to further, pr omote, or cooperate in her distribution of it. While the shipper could infer that Cicilese intended to distribute the marijuana from the large amount of marijuana sent in th e package, the evidence failed to demonstrate that he or she intended to participate any furthe r in Cicilese’s enterprise. No evidence suggested that this distribution was part of an ongoi ng course of conduct between Cici lese and the shipper rather than a one-time sale, or that the shipper financed the sale of the marijuana by extending credit to Cicilese for its purchase. No evidence establis hed that Cicilese and th e seller had reached an agreement to cooperate concerning any further distribution of the marijuana. Accordingly, the evidence was insufficient to prove that Cicilese conspired to distribute the marijuana with the individual that shippe d it from California.
B. THE INDIVIDUALS FROM THE OWE SHEETS Haney testified that the various owe sheets f ound in Cicilese’s residence demonstrated that three people had each bought a half pound of marijuana from her. Haney further testified that Cicilese sold this mariju ana to these buyers on credit. On appeal, the Commonwealth argues that Cicilese conspired to di stribute marijuana with these individuals. The Commonwealth contends that Cicilese knew th at these individuals would resell the marijuana she distributed to them and that she intended to shar e in the profits from these sales. Although the Commonwealth failed to make this argument to the circuit court, [w]hen a defendant challenges on appeal the sufficiency of the evidence to sustain his [or her] c onviction, the appellate court has a duty to examine all the eviden ce that tends to support the conviction. . . . [T]his examinati on is not limited to the evidence- 9 - mentioned by a party in trial argum ent or by the trial court in its ruling. Bolden v. Commonwealth, 275 Va. 144, 147, 654 S. E.2d 584, 586 (2008). Therefore, we must consider the evidence of Cicilese’s distributions of marijuana to other i ndividuals referenced in the owe sheets found by the police during the search of her home. As previously stated, evidence establishing that a seller distributes illegal substances to other parties on credit may demonstrate that th e seller intends to promote and cooperate in further distributions of the substance by th e buyer. See Zuniga, 7 Va. App. at 530-31, 375 S.E.2d at 386. “Such financing techniques, wh ich may be innocuous in a normal commercial setting, evidence an inappr opriate and sinister practice when used in the sale of commodities which are per se unlawful.” Id. at 530, 375 S. E.2d at 386. Extending credit to buyers of illegal substances makes the purchase “fin ancially feasible” and allows the distributing buyer to conduct his or her sale of the illegal substance “on reduced capital out lay.” Id. at 530-31, 375 S.E.2d at 386. Further, the seller is of ten paid from the proceeds of the buyer’s sale of the illegal substance, and thereby he or she maintains a st ake in those sales. S ee id. at 531, 375 S.E.2d at
386. While the credit arrangement between Cic ilese and the buyers of the half pounds of marijuana may be sufficient to establish a cons piracy to distribute marijuana between them, it failed to establish that Cicilese conspired with them to distribute marijuana on August 10, 2012. No dates appeared on the owe sheets establishi ng when the marijuana was actually sold, and notes from the gold notebook were dated from 20 09. Furthermore, no evidence established that these transactions were relate d to the marijuana Cicilese r eceived in the mail on August 10, 2012. The transactions listed in the owe sheets could have taken place years before Cicilese- 10 - received the marijuana at issue in the present case. Accordi ngly, the owe sheets did not prove that Cicilese conspired to di stribute marijuana on August 10, 2012. 3
C. CICILESE’S FATHER The Commonwealth also contends that the evid ence established that Cicilese conspired to distribute marijuana with her father. Although the evidence suggested that Cicilese’s father may have used marijuana in the home and been aware of her distribution activitie s, it failed to prove that he ever agreed to particip ate in her distribution enterprise. An agreement to distribute drugs cannot be inferred from mere “[p]roof that two persons possessed drugs in the same dwelling.” Jones v. Commonwealth, 11 Va. App. 75, 82, 396 S.E.2d 844, 848 (1990). Additionally, a conspiracy cannot be inferred solely from a familial relationship between the parties. See Combs v. Commonwealth, 30 Va. App. 802, 811, 520 S.E.2d 400, 404 (1999). “A conspiracy, even one between husband and wife, requires a showing of an agreement between the conspirators.” Id. Ample evidence in this case implied that Ci cilese’s father knew that she used and distributed marijuana. Marijuana and mariju ana smoking devices were found in almost every room of the Cicilese residence, including the fa ther’s bedroom. This evidence, however, did not establish that Cicilese’s father agreed to distribu te marijuana with her. Further, while Cicilese’s father actually accepted delivery of the packag e in question, no evidence established that he knew what the package contained. He did not open the package, a nd the fact that he accepted its delivery was not inconsistent with his status as a resident of the house. Although he quickly met

3 We also note that the evidence failed to esta blish the degree of Ci cilese’s stake in any further distributions made by the buyers of the marijuana. In Zuniga, the seller expressly knew that he would be repaid with proceeds from the buyer’s sale of the illegal substance the following day. Zuniga, 7 Va. App. at 525, 375 S.E.2d at 383. In the present case, however, no evidence established that the buyers actua lly resold the marijuana they bought from Cicilese or that Cicilese was repaid for the marijuana with proceeds from those sales.- 11 - Hill at her truck when she delivered the package, the evidence indicated that he was working on a computer next to the door of the residen ce and therefore saw the delivery truck arrive. The Commonwealth contends that the two dist inct sets of handwriting on the owe sheets established that Cicilese conspi red to distribute marijuana with someone else that lived in the house. No evidence, however, established that Ci cilese’s father wrote on the owe sheets rather than someone else that lived in or visited th e residence. Additiona lly, the evidence did not conclusively establish that two different individuals wrote on th e owe sheets. Although one of the owe sheets was written in print and another was written in cursive, Haney testified that one person could have switched the style of his or her handwriting and written both sheets. Furthermore, no expert evidence regarding the ha ndwriting established thatit was written by two different people. Moreover, evidence establishing that the ow e sheets were written by two different individuals would not necessarily establish that those individu als conspired to distribute marijuana together. Both individuals could have been distributing marijuana separately. Also, someone could have simply written on one of th e owe sheets to assist Cicilese on one isolated occasion without agreeing to distribute marijuana with her. “Evidence which merely establishes aiding or abetting in the commission of the distribution offense will not suffice to prove a conspiracy.” Zuniga, 7 Va. App. at 529, 375 S.E .2d at 385; see also Jo nes, 11 Va. App. at 82, 396 S.E.2d at 848 (“Proof that two persons possess ed drugs in the same dwelling, where one is observed packaging and another selling, is suffici ent to establish that each possessed drugs with the intent to distribute, but abse nt any proof, direct or circumstan tial, that the two were acting in concert, an agreement between them to distribute drugs canno t be inferred.”). The Commonwealth also argues that Cicile se’s statement concerning the “government conspiracy against her and her father” established that she conspired to distribute marijuana with- 12 - him. While the statement showed that Cicilese perceived that the police were conspiring against her and her father collectively, it did not establish that they agreed to distribute marijuana together. The police detained Cicilese and her fa ther while they searched their residence, and they gathered evidence of marijuana possession and distribution by both of them. Cicilese’s statement simply referenced the police action that affected both her and her father and showed her concern that both of them could be charge d (wrongly, in her opinion) with the possession of marijuana. It did not establish that she and her father conspired to distribute marijuana together. While the circumstances of this case indicated that Cicilese and her father used marijuana together, the evidence failed to establish that they conspired together to distribute marijuana. The evidence failed to prove any agreement be tween Cicilese and her father concerning the marijuana delivered on August 10, 2012 or any other marijuana.
III. CONCLUSION In conclusion, we hold that the evidence of this case did not establish that Cicilese conspired to distribute marijuana with any ot her individual on August 10, 2012. No evidence established that the individual th at shipped the marijuana to Cicilese from California agreed to have any further involvement in its distribution. While Cicile se may have conspired with individuals listed in the owe sh eets to distribute marijuana, no evidence established that these conspiracies were related to the conspiracy offe nse with which Cicilese was charged. Further, the evidence did not establish that Cicilese agreed to distribute marijuana with her father or any other individual that lived in her house. For th ese reasons, we reverse and dismiss Cicilese’s conspiracy conviction. Reversed and dismissed.