COURT OF APPEALS OF VIRGINIA
Present: Judge s Decker, AtLee and Senior Judge Frank Argued at Norfolk, Virginia

HAROLD DONNELL LIVINGSTON MEMORANDUM OPINION * BY v. Record No. 1933-14-1 JUDGE ROBERT P. FRANK MARCH 29, 2016 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE Bruce H. Kush ner, Judge Dalton L. Glass, Assistant Public Defender, for appellant. Christopher P. Schandevel, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication. Harold Donnell Livingston, ap pellant, appeals his conviction fo r conspiracy to distribute a controlled substance in violation of Code §§ 18.2-248 an d 18.2-256. On appeal , he argues the trial court erred in denying his motions to strike the evid ence. For the reasons that follow, we affirm the decision of the trial court. Background We review the evidence in th e light most favorable to the Commonwealth, as the prevailing party below, and determ ine whether “any rational trier of fa ct could have found the essential elements of the crime be yond a reasonable doubt. ” Commonwealth v. McNe al, 282 Va. 16, 20, 710 S.E.2d 733, 735 (2011) ( quoting Jackson v. Virginia , 443 U.S. 307, 319 (1979) ). In a bench trial, “[t]he credibility of the witnesses and the weight accorded the evidence ar e matters solely for the [trial judge] who has the opportunity to see and hear that evidence as it is presented.” Sandoval v.UNPUBLISHED- 2 - Commonwealth, 20 Va. App. 133, 138, 455 S.E.2d 730, 732 (199 5). “Furthermore, we ‘accord the Commonwealth the benefit of all inferences fairly deducible from the evidence.’” Brooks v. Commonwealth, 282 Va. 90, 95, 71 2 S.E.2d 464, 466 (2011) (quoting Glenn v. Commonwealth, 275 Va. 123, 130, 654 S.E.2d 910, 913 (2008)). When the sufficiency of the evidence is ch allenged on appeal, this Court must “examine the evidence that supports the c onviction and allow the conviction to stand unless it is plainly wrong or without evidence to support it.” McNeal, 282 Va. at 20, 710 S.E.2d at 735 (quoting Vincent v. Commonwealth, 276 Va. 648, 652, 668 S.E.2d 137, 139-40 (2008)). On June 27, 2012, Chesapea ke Police Detective Hammond and other of ficers conducted a controlled drug buy, using a confid ential informant. Hammond and his partne r, Detective Barlow, were assigned to cover the inform ant, who was positioned sitting on a curb in a small parking lot behind a convenience store. The detectives gave the informant $4 0 in cash, consisting of two $20 bills they had previously copi ed. Hammond was provided with a photograph of their target, Kenyon Thomas. At approximately 5:00 p.m., a blue Ford Explorer drove into the re ar parking lot of the store. The informant got up and walked to the driver’s window of th e Explorer. Thomas was the front seat passenger. Appellant was the driver. No one else was in the vehicle. When appellant stopped the vehicle, he did not put the ve hicle in park and the brake lights remained illumina ted. Appellant never took his foot off of the br akes. Hammond could cl early see the informan t’s interaction with appellant and Thomas. The inform ant spoke to both men through appellant’s window. He then reached through the window across appellant and appeared to hand something to Thomas. The detectives did not see what was tr ansferred nor did they hear the conversation. The informant then walked away, and appellant immediately drove out of the parking lot. The entire exchange lasted- 3 - approximately ten seconds. A detective recovere d two small baggies of crack cocaine from the informant after the incident. The police stopped the Explorer, immediatel y removing appellant and Thomas from the vehicle and placing them under ar rest. Detective Burton searched Thomas, who possessed $696 in cash, including the $40 used in the controlled purchase, a cell phone, and a small amount of marijuana. From appellant, the police recovered $442 in cash and a cell p hone. They found no drugs or marked money on appellant. After the Explorer was towed to the police stat ion, an officer searched the vehicle and found a small, three inch by five inch paper located in pl ain view in the center cons ole in front of the gear shift. 1 The paper contained names, numbers, mone tary values, and abbreviations. At trial, Investigator Scott identified the paper as an “owe sheet,” a document us ed to keep track of customers who had purchased drugs, the amounts purchased, a genera l description of the drugs, and the purchase prices. The back of the “owe shee t” contained additional nu mbers consistent with standard drug amounts. Among other names, the “o we sheet” contained the names “Ken” and “Harold.” 2 The number “ 1350” was written ne xt to “Harold.” At the police stat ion, after being advised of his Miranda rights, appellant agreed to speak with Investigator Scott. Appell ant admitted driving the Explorer, which he said belonged to his sister. Appellant said he picked up Thomas, who asked for a ride to a particular convenience store because he “had to get something. ” When asked whether he knew Thomas was selling drugs there,

1 At no time did any of the officers see a nyone in the vehicle except appellant and Thomas.

2 These are the first names of Thomas and appellant.- 4 - appellant responded, “You know.” 3 The investigator fo llowed with, “So, was he?” Appellant did not answer, but simply star ed at the investigator. Appellant told Scott he did not know how much mo ney he possessed at the time, but when Scott counted $442 in cash in front of appellant, appellant resp onded, “I got three businesses.” 4 At trial, appellant, a convicte d felon, testified he worked at a convenience store owned by his family every day of the week. He stated he worked there the day before the incident. Scott knew appellant was being untruthful because Scott knew that this store had burned and had been closed for some time. Scott had observed th e burned building the morning of the offense. Appellant testified he was ri ding around when he encounte red Thomas. He picked up Thomas, and they rode “around,” li stening to music. Thomas asked for a ride “to the store,” but he never indicated his specific purpose other than “to get something.” Upon arriving at the store, appellant pulled into the parking lot and drov e “behind the store” wh ere he observed a man “squatting in between two cars.” Thomas told appe llant to “stop right here.” Appellant stated he still thought they were going to th e store and he “didn’t think too mu ch about it” when Thomas told him to stop. Appell ant remembered Thomas and the in formant spoke and “d[a]pped up.” 5 Appellant and Thomas then drov e away. Appellant insisted he never saw any money or drugs. Appellant then explained the ear lier interview with Scott. Appe llant stated Scott yelled at him during the interview and was “trying to make me know some thing that I didn’t know.” Appellant testified Scott repeatedly said to him, “You know what’s going on. You know what’s

3 No testimony indicated what that response meant.

4 The three businesses consisted of a detai ling business with his father, a construction business with his grandfather, and a family owned convenience store.

5 “‘Dap’ is defined in the Urban Dictionary as ‘[t]he knocking of fists together as a greeting, or form of respect.’” In re Tracy B., 704 S.E.2d 71, 74 n.2 (S.C. Ct. App. 2010) (quoting Aaron Peckham, Ur ban Dictionary 98 (2005)).- 5 - going on.” Appellant stat ed he replied to Scott, “I wasn’t aw are of any of this, Sir.” Appellant denied telling the investigator, “You know” in response to any questions. Appellant also denied that hi s family’s convenience store burne d down prior to the incident. He said it burned “[w]ay after [he] got arrested.” Appellant denied seeing the “owe sheet” in the vehicle, and he denied he owed $1,350 to T homas. When asked on cr oss-examination how the marked buy money came into Thom as’s possession, appellant stated , “I couldn’t tell you. Only thing I saw, he d[a]pped ha nds and released hands.” Appellant claimed he did not answer Inves tigator Scott’s question about Thomas selling drugs because he “had a right to be quiet,” and he would not answer the i nvestigator if he kept yelling at him. He furt her claimed Scott had said, “You kn ow,” before he could answer the question. The trial court found th e evidence sufficient to convict appellant of conspiracy to distribute drugs. This appeal follows. Analysis Code § 18.2-248(A) provides that it is “unlaw ful for any person to manufacture, sell, give, distribute, or possess with intent to manufacture, sell, gi ve or distribute a controlled substance or an imitation controlled substance.” Code § 18.2-2 56 prescribes punishment for a conspiracy to distribute drugs. Appellant challenges the suff iciency of the evidence, conten ding there was no evidence of an agreement between him and Thomas. We review lower court factfinding with the highest degree of appellate deference. We do not ask whether we, as appellate judges, believe “the ev idence at the trial established guilt beyond a reasonable doubt.” Stevens v. Commonwealth, 46 Va. App. 234, 249, 616 S.E.2d 754, 761 (2005) ( en banc ) (citation omitted). We ask only whether “any rational trie r of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id. This deferential standard applies not only to basic facts, but also to- 6 - any resulting inferences so long as they do not push “into the realm of non sequitur.” Crowder v. Commonwealth, 41 Va. App. 658, 665, 588 S.E.2d 384, 388 (2003). An infe rence loses its rationality only when it becomes so attenuated as to appear to stand alone, deriving none of its probative stre ngth from the proven basic facts. Thomas v. Commonwealth, 48 Va. App. 605, 608, 633 S.E.2d 229, 231 (2006). A fact finder is entitled to draw reasonable inferences from proven facts, so long as “all circumstances proved [are] consistent with guilt a nd inconsistent with innocence and exclude all reasonable conclusions inconsis tent with guilt.” McMorris v. Commonwealth, 276 Va. 500, 506, 666 S.E.2d 348, 351 (2008). “Conspiracy is defined as ‘an agreement between two or more persons by some concerted action to commit an offense.’” Wright v. Commonwealth, 224 Va. 502, 505, 297 S.E.2d 711, 713 (1982) (quoting Falden v. Commonwealth, 167 Va. 542, 544, 189 S.E. 326, 327 (1937)). Moreover, the crime of conspiracy is complete when the parties agree to commit an offense; Virginia does not require proof of an ove rt act in furtherance of the conspiracy. Stevens v. Comm onwealth, 14 Va. App. 238, 241, 415 S.E.2d 881, 883 (1992). The existence of a conspiracy may be proven by circumstantial evidence. Wright, 224 Va. at 505, 297 S.E.2d at 713. Chambliss v. Commonwealth, 62 Va . App. 459, 466-67, 749 S.E.2d 212, 216 (2013). If there is an agreement to commit an offe nse, the parties need not commit an act in furtherance of the underlying crime. Gr ay v. Commonwealth, 260 Va. 675, 680, 537 S.E.2d 862, 865 (2000). The crime is complete when the parties agree to commit the crime. Falden, 167 Va. at 544, 189 S.E. at 327. Appellant argues that, at best, the eviden ce proved he aided and abetted Thomas. “In order to establish the existen ce of a conspiracy, as opposed to mere aiding and abetting, the Commonwealth must prove ‘the additional elemen t of preconcert and connivance not necessarily inherent in the mere joint activity co mmon to aiding and abetting.’” Williams v.- 7 - Commonwealth, 53 Va. App. 50, 60-61, 669 S.E .2d 354, 358 (2008) (quoting Zuniga v. Commonwealth, 7 Va. App. 523, 527, 375 S.E.2d 381, 384 (1988)). “A common purpose and plan may be infe rred from a development and collocation of circumstances.” Brown v. Commonwealt h, 10 Va. App. 73, 78, 390 S.E.2d 386, 388 (1990) (quoting United States v. Godel, 361 F.2d 21, 23 (4th Cir. 1966)). Where . . . it has been shown th at the defendants “by their acts pursued the same object, one perf orming one part and the others performing another part so as to co mplete it or with a view to its attainment, the jury will be justifie d in concluding that they were engaged in a conspiracy to effect that object.” Id. (quoting Amato v. Commonwealth, 3 Va. App. 544, 552, 352 S.E.2d 4, 9 (1987)). The issue before us is whether appellant a nd Thomas entered into an agreement to sell drugs or whether appellant was pr esent and simply procured, inci ted or encouraged Thomas to sell drugs. “Mere presence when a crime is committed is, of course, not sufficient to render one guilty as aider and abettor. There must be something to show that the person present and so charged, in some way procured, or incited, or enc ouraged, the act done by the actual perpetrator. But whether a person do es in fact aid or abet another in the commission of a crime is a question which may be determined by circumstances as well as by direct evidence.” Charles v. Commonwealth, 63 Va. App. 289, 301, 756 S.E.2d 917, 923 (2014) (quoting Triplett v. Commonwealth, 141 Va. 577, 586, 127 S.E. 486, 489 (1925)). Here, appellant did more than drive Thom as to the drug transaction. Thomas told appellant to drive to a specific convenience store, but without any further direction from Thomas, appellant immediately drove to the rear of the convenience store. If appellant was simply giving Thomas a ride to the store, why would he drive to a more secluded location in the rear of the store, instead of parking in front of the store? The informant was sitting on a curb in the rear of the store, not the front.- 8 - Furthermore, appellant never put the vehi cle in park, the brak e lights were still illuminated, and appellant never t ook his foot off of the brake pe dal. These facts constitute evidence that appellant knew they would be at this location for a short duration. In addition, immediately after the encounter with the informant, which last ed approximately ten seconds, appellant drove out of the parki ng lot. Thomas never exited the vehicle or entered the store. Furthermore, the informant approached appellan t’s side of the vehicle, not the side where Thomas was seated. The informant spoke to both appellant and Thomas, and he reached across appellant and appeared to hand Thomas an unknown item. If appellant and Thomas had agreed to se ll drugs, what would the agreement include? They would have agreed where th e transaction would take place—in the rear parking lot of the convenience store. If appellant believed Thomas when he said he was going to “get something” at the store, appellant would have parked in the front of the stor e. Appellant’s conduct suggests knowledge of a drug transaction. In addition, ap pellant and Thomas would have agreed on how the transaction would occur and the mechanics of the transaction. When appellant stopped the vehicle, he did not put the vehicl e in park and he did he remove his foot from the brake pedal. Those actions indicate appellant knew of th e short duration of the agreed upon drug deal. While the detective who observed the encounter did not know what the informant said to appellant and Thomas, it is reasonable to infer the informant was aware that both appellant and Thomas were involved in the sa le. Although appellant denied know ledge of the transaction, the informant reached across appellant and appear ed to hand something to Thomas. Since the cocaine was later recovered from the informan t, and the buy money was later recovered from Thomas, it follows that Thomas handed drugs to the informant in exchange for the money. In addition, appellant told the detective, and he test ified in court, that the informant and Thomas “dapped,” meaning they performed a fist bum p. Thus, appellant acknowledged the two men- 9 - touched hands during the encounter. The fact fi nder could properly reject appellant’s testimony that he was unaware that a drug transaction t ook place or that he did not see drugs or money during the encounter with the informant. “In its role of judging witne ss credibility, the fact finder is entitled to disbelieve the self-serving testimony of the accu sed and to conclude that the accused is lying to conceal his guilt.” Marable v. Commonwealth, 27 Va. App. 505, 509-10, 500 S.E.2d 233, 235 (1998). The trier of fact is not required to accept a part y’s evidence in its entirety, Barrett v. Commonwealth, 231 Va. 102, 107, 341 S.E.2d 190, 193 (1986), but is free to believe and disbelieve in pa rt or in whole the testimony of any witness, Rollston v. Commonwealth, 11 Va. App. 535, 547, 399 S.E.2d 823, 830 (1991). While appellant denied being aware of the “o we sheet,” it was located in “plain view” on the center console in fron t of the gear shift. The trial cour t did not believe appellant. Testimony revealed that the “owe sheet” listed quantitie s of drugs, purchase prices, names, and amounts owed by purchasers. The fact finder could reasonably infer the document was an ongoing business record of multiple drug transactions, and, coupled with the evidence of the location of the “owe sheet” in the vehicle, appellant was aw are of the existence of the “owe sheet” and he knew that Thomas had been selling drugs. Further, appellant lied about the “owe sheet,” the source of the $442 found on his person, and the details of his interrogation. The trial cour t could reasonably infer that appellant’s false answer concerning the source of hi s funds, coupled with other evid ence, would indicate the funds were the product of illegal drug sales. 6 The trial court “was at lib erty to discount [appellant]’s self-serving statements as little more than ly ing to ‘conceal his guilt,’ and could treat such prevarications as ‘affirmativ e evidence of guilt.’” Armst ead v. Commonwealth, 56 Va. App.

6 “[A] large amount of cash, [is] a factor th at may be considered as some evidence of involvement in drug distribution.” J ohnson v. Commonwealth, 12 Va. App. 150, 153, 402 S.E.2d 502, 504 (1991).- 10 - 569, 581, 695 S.E.2d 561, 567 (2010) (quoting Cole man v. Commonwealth, 52 Va. App. 19, 25, 660 S.E.2d 687, 690 (2008)). Appellant further argues he could not be convicted of conspiracy because no evidence proved that he benefited from the trans action, citing Reed v. Commonwealth, 213 Va. 593, 594, 194 S.E.2d 746, 747 (1973). In the factual recitati on in Reed, the Court stated there was no showing that Reed received any benefit from the transaction, but that f act was not part of the Court’s ruling. Appellant cites no cases, nor ha ve we found any, that suggests this additional element of the offense. Appellant maintains the Commonwealth’s cas e was deficient because it did not prove “the identity and quantity of the substance co ntemplated by the agreement,” citing Graves v. Commonwealth, 234 Va. 578, 581, 363 S.E.2d 705, 707 (1988). In Graves, the accused was indicted under Code § 18.2-248.1 for conspiracy to sell more than one-half ounce of marijuana. This statute provides different penalties depending on the quantity of marijuana involved. The Court concluded that, based on Code § 18.2- 248.1, the Commonwealth must “prove an agreement to distribute a proscribed substance a nd . . . prove both the identity and the quantity of the substance contemplated by the agreement.” Id. Here, appellant was charged under Code § 18.2-248. Therefore, Graves has no application to appellant’s case. In summary, the evidence and all inferences therefrom belie appell ant’s position that he simply was a friend who accommodated Thomas’s request for a ride. Accordingly, we cannot say th e trial court erred in denying th e motion to strike. The trial court’s finding of guilt was not plainly wr ong or lacking in evidence to support it. Affirmed.