COURT OF APPEALS OF VIRGINIA 

Present: Judges Petty, Alston and Russell 

Argued at Richmond, Virginia 

WAYNE SCOTT CAHOON 

 MEMORANDUM OPINION*

 BY 

v. Record No. 0781-15-2 JUDGE WESLEY G. RUSSELL, JR. 

 MARCH 29, 2016 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF SPOTSYLVANIA COUNTY 

Joseph J. Ellis, Judge 

 Jenna C. Nacht, Assistant Public Defender, for appellant. 

 John W. Blanton, Assistant Attorney General (Mark R. Herring, 

Attorney General, on brief), for appellee. 

 Wayne Scott Cahoon, appellant, was convicted in a bench trial of possessing a Schedule I or 

II controlled substance with the intent to distribute in violation of Code § 18.2-248, and conspiring 

to distribute a Schedule I or II controlled substance in violation of Code §§ 18.2-248 and 18.2-256. 

On appeal, appellant challenges the sufficiency of the evidence for each conviction. Finding that 

the evidence was sufficient to allow a reasonable factfinder to conclude beyond a reasonable doubt 

that appellant committed both offenses, we affirm the convictions. 

BACKGROUND 

 “Under well-settled principles of appellate review, we consider the evidence presented at 

trial in the light most favorable to the Commonwealth, the prevailing party below.” Smallwood 

v. Commonwealth, 278 Va. 625, 629, 688 S.E.2d 154, 156 (2009) (quoting Bolden v. 

Commonwealth, 275 Va. 144, 148, 654 S.E.2d 584, 586 (2008)). This principle requires us to 

 *

 Pursuant to Code § 17.1-413, this opinion is not designated for publication. 

UNPUBLISHED 
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“discard the evidence of the accused in conflict with that of the Commonwealth, and regard as 

true all the credible evidence favorable to the Commonwealth and all fair inferences to be drawn 

therefrom.” Parks v. Commonwealth, 221 Va. 492, 498, 270 S.E.2d 755, 759 (1980) (emphasis 

and internal quotation marks omitted). 

 So viewed, the evidence established that, on November 23, 2013, Spotsylvania County 

Sheriff’s Deputy Mark Friedman observed a driver and passenger in a vehicle that was familiar to 

Deputy Friedman. He followed the vehicle after concluding that neither individual inside the 

vehicle was its owner, a local resident. Additionally, Deputy Friedman found it unusual that both

the driver and the passenger continually were looking at him using the car’s side and rearview 

mirrors. He followed the vehicle southbound on Route 1 until the vehicle entered the turn lane to 

access the ramp for Interstate 95 South. Deputy Friedman did not follow the vehicle onto the 

interstate. He passed it as he continued southbound on Route 1. 

 Still suspicious of what he had observed, Deputy Friedman stayed in the general vicinity of 

where he first observed the vehicle to see if it returned. In short order, the vehicle returned to the 

area and Deputy Friedman resumed following it. He followed the vehicle into a gas station parking 

lot. After appellant parked the vehicle and both occupants had exited, Deputy Friedman approached 

them, identified himself, and asked if he could speak with them. 

 Appellant, a Spotsylvania resident, was the driver of the vehicle and his brother, Roy, had 

been in the passenger seat. Upon request, appellant provided Deputy Friedman with a Virginia 

identification card and Friedman was able to determine that appellant was not licensed to drive in 

Virginia. Roy, a Massachusetts resident, provided an identification card issued by Massachusetts 

and had no driver’s license. 

 Both appellant and Roy consented to the deputy’s search of both their persons and the car. 

Deputy Friedman recovered from appellant’s wallet a folded sheet of paper upon which was written: 
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“60 oxy 80s street value 4800.00” and “180 oxy 30$ street value 5400.” His search of Roy revealed 

a prescription pill bottle, in Roy’s name, containing Oxycodone. From inside the vehicle, Deputy 

Friedman recovered, among other things, a bottle of morphine pills prescribed in appellant’s 

name, a notebook entitled “Roy’s doc book and dates,” and multiple prescriptions in Roy’s name 

that all had been written that day by a doctor whose office is in Arlington. 

 Deputy Friedman placed both appellant and Roy under arrest and read them their rights 

pursuant to Miranda. Deputy Friedman noted that Roy’s Oxycodone prescription had been filled 

approximately two hours earlier in Fairfax and that fifty pills were missing. When questioned 

about the missing pills, Roy responded that he had consumed them. The prescription for 

morphine in appellant’s name had been filled on November 19, 2013, mere days prior to the 

encounter. Of the pills prescribed, fifty pills were missing from that container. Appellant 

initially stated that the missing pills were in a pocket of a jacket at his home, but changed his 

story and ultimately stated that he had consumed all of the missing morphine.1 

 Deputy Friedman testified that neither appellant nor Roy appeared to be under the 

influence of any drugs during this encounter. Both individuals denied selling any drugs, and 

Deputy Friedman did not find amounts of money that one might associate with illicit drug sales. 

 At trial, the court accepted Detective Ray Haney as an expert regarding the illegal 

prescription drug market in Spotsylvania County. Detective Haney reviewed the piece of paper 

taken from appellant’s wallet and opined that “60” would refer to the quantity of pills and “80” 

to the milligrams contained in each pill. According to Detective Haney, the note indicated that 

selling sixty of those pills would yield $4,800 on the street. Likewise, selling 180 of the thirty 

milligram pills would yield $5,400. He explained that this is consistent with the street value of 

Oxycodone in Spotsylvania, which is approximately $1 per milligram. He also testified that the 

 1

 Dosage instructions on the bottle stated, “Take 1 tablet by mouth 2 times a day.” 
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sheet of paper, combined with notes in the notebook Deputy Friedman had found and the number 

of pills missing from both prescription bottles, indicated to him that the notebook was used to 

keep track of drug sales. 

 Detective Haney, who had been called to the scene of the arrest, testified that he did not 

observe appellant or Roy acting as if either had recently consumed significant doses of the 

medications in question. He stated that, based on the dates of the prescriptions, the number of 

pills missing from each bottle, and the note found in appellant’s wallet, it was his opinion that 

the evidence was inconsistent with personal use of the medications in question. 

 The trial court found appellant guilty of possession with intent to distribute a controlled 

substance and conspiracy to distribute a controlled substance. 

 This appeal followed. 

ANALYSIS 

Possession of a Controlled Substance with the Intent to Distribute 

 Appellant acknowledges that he possessed the morphine, which is a Schedule II 

controlled substance. He argues that the evidence was insufficient to allow the factfinder to 

conclude that he possessed the drug with the intent to distribute. We disagree. 

 “Intent is a state of mind that may be proved by an accused’s acts or by his statements 

and that may be shown by circumstantial evidence.” Wilson v. Commonwealth, 249 Va. 95, 

101, 452 S.E.2d 669, 673-74 (1995) (quoting Wright v. Commonwealth, 245 Va. 177, 193, 427 

S.E.2d 379, 390 (1993)). “Circumstantial evidence, if sufficiently convincing, is as competent 

and entitled to the same weight as direct testimony.” McCain v. Commonwealth, 261 Va. 483, 

493, 545 S.E.2d 541, 547 (2001). 

 This Court and the Supreme Court of Virginia have recognized several factors that are 

probative circumstantial evidence of intent to distribute a controlled substance. Williams v. 
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Commonwealth, 52 Va. App. 194, 202, 662 S.E.2d 627, 631 (2008). Expert testimony, usually that 

of a police officer familiar with the local market in the controlled substance, is routinely offered to 

prove whether the drugs seized are more consistent with personal use or likely intended for 

distribution. Askew v. Commonwealth, 40 Va. App. 104, 109-10, 578 S.E.2d 58, 61 (2003). 

 “The quantum of evidence necessary to prove an intent to distribute depends on the facts 

and circumstances of each case.” Id. at 110, 578 S.E.2d at 61. Moreover, even where no single 

piece of evidence sufficiently supports a finding on its own, “the ‘combined force of many 

concurrent and related circumstances, each insufficient in itself, may lead a reasonable mind 

irresistibly to a conclusion.’” Derr v. Commonwealth, 242 Va. 413, 425, 410 S.E.2d 662, 669 

(1991) (quoting Stamper v. Commonwealth, 220 Va. 260, 273, 257 S.E.2d 808, 818 (1979)). 

Ultimately, it is for the factfinder “to decide whether the defendant acted with criminal intent in 

the commission of the crimes.” Griggs v. Commonwealth, 220 Va. 46, 51, 255 S.E.2d 475, 478 

(1979). 

 Here, based on the expert testimony and circumstantial evidence presented at trial, the 

trier of fact reasonably could conclude that appellant possessed the morphine with the intent to 

distribute it. Appellant had a prescription for morphine that was missing fifty pills in just a 

period of days. The expert testimony established that such a consumption pattern was 

inconsistent with personal use, and the evidence established that neither occupant of the vehicle 

appeared to be under the influence of any substance, including the medications at issue. In 

addition to drawing the conclusion that appellant had not consumed the pills, the factfinder was 

entitled to conclude that appellant neither had abandoned nor misplaced the morphine. See Ward 

v. Commonwealth, 47 Va. App. 733, 753 n.4, 627 S.E.2d 520, 530 n.4 (2006) (“Our cases 

recognize that drugs are a commodity of significant value, unlikely to be abandoned or carelessly 

left in an area.”), aff’d on other grounds, 273 Va. 211, 639 S.E.2d 269 (2007). 
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 Finally, appellant’s inconsistent stories provided the factfinder with additional evidence 

of his guilt. His two versions of what had happened to the missing morphine—that the pills were 

in the pocket of a jacket versus that he had consumed them all—are in direct conflict; thus, at a 

minimum, appellant told at least one lie regarding the disposition of the pills. Given all of the 

evidence, the factfinder reasonably could conclude that both statements were false. “A 

defendant’s false statements are probative to show he is trying to conceal his guilt, and thus [are] 

evidence of his guilt.” Rollston v. Commonwealth, 11 Va. App. 535, 548, 399 S.E.2d 823, 831 

(1991) (citations omitted). The trial court was entitled to take this into account when considering 

whether appellant possessed the morphine with the intent to distribute it. 

Coupled with the existence of the note in appellant’s wallet that can be interpreted only 

as indicating familiarity with the illegal prescription drug trade,2

 a rational factfinder easily could 

conclude from the evidence in this case that appellant possessed the morphine with the intent to 

distribute it.3 

Conspiracy to Distribute a Controlled Substance 

 Appellant contends the evidence was insufficient to sustain his conviction for conspiracy 

to distribute a controlled substance. We disagree. 

 A conspiracy is “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) 

 2

 Nothing in the record reveals an “innocent” explanation for the note, and we cannot 

divine one. Appellant only argues that the note cannot support a conclusion that he intended to 

distribute morphine because the note only referred to the “street value” of Oxycodone. Although 

his recitation of the contents of the note is correct, it ignores that the note establishes at least 

some involvement of appellant in the illegal trafficking of prescription drugs, and therefore, 

makes his distribution of prescription drugs, including morphine, more likely. 

 

3

 Because we determine that appellant possessed the morphine with the intent to 

distribute, we need not decide whether appellant possessed the Oxycodone with the intent to 

distribute. 
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(quoting Falden v. Commonwealth, 167 Va. 542, 544, 189 S.E. 326, 327 (1937)). The crime is 

“complete when the parties agree to commit an offense,” and “[n]o overt act in furtherance of the 

underlying crime is necessary.” Gray v. Commonwealth, 260 Va. 675, 680, 537 S.E.2d 862, 865 

(2000). 

 The Commonwealth may, and frequently must, rely on circumstantial evidence to 

establish the existence of a conspiracy. Stevens v. Commonwealth, 14 Va. App. 238, 241, 415 

S.E.2d 881, 883 (1992). Although no overt act is necessary to establish a conspiracy, such an act 

may support a finding of the existence of a conspiracy, Poole v. Commonwealth, 7 Va. App. 510, 

513, 375 S.E.2d 371, 372 (1988) (quoting United States v. Harris, 433 F.2d 333, 335 (4th Cir. 

1970)), and “a common purpose and plan may be inferred from a ‘development and collocation 

of circumstances,’” Floyd v. Commonwealth, 219 Va. 575, 581, 249 S.E.2d 171, 175 (1978) 

(quoting United States v. Godel, 361 F.2d 21, 23 (4th Cir. 1966)). 

[W]hen “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 with a view to its 

attainment, the jury 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) (quoting Brown v. 

Commonwealth, 10 Va. App. 73, 78, 390 S.E.2d 386, 388 (1990)). 

 It is true that the Commonwealth presented no witness who observed or heard the 

brothers expressly agree to traffic in prescription drugs. However, “[t]here is no distinction in 

the law between the weight or value to be given to either direct or circumstantial evidence.” 

Muhammad v. Commonwealth, 269 Va. 451, 479, 619 S.E.2d 16, 31-32 (2005), cert. denied, 547 

U.S. 1136 (2006). “While no single piece of evidence may be sufficient, the combined force of 

many concurrent and related circumstances, each insufficient in itself, may lead a reasonable 

mind irresistibly to a conclusion.” Id. (citation omitted). Here, all of the attendant 
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circumstances, taken together, were sufficient to allow a factfinder reasonably to conclude that 

appellant and his brother had an agreement to traffic in prescription drugs. 

 Roy, with appellant as his only observed source of transportation, had obtained a 

prescription for Oxycodone in Arlington, filled it in Fairfax, and had distributed over fifty pills in 

just two hours. Part of this limited time period was spent being followed by Deputy Friedman in 

Spotsylvania, avoiding the deputy by going on the interstate, and then returning to the area they had 

just left, which allowed the deputy to resume his surveillance. Throughout the period of 

surveillance by the deputy, both brothers repeatedly made furtive glances into the vehicle’s mirrors, 

suggesting that both knew that they had reason to fear being stopped by the deputy. 

 The evidence supports a conclusion that neither brother had consumed the pills during 

the time since the prescription had been filled. The evidence was sufficient to allow the 

factfinder to conclude that both brothers lied to the police about their activities, giving rise to an 

inference supporting a finding of guilt. Appellant, despite possessing no prescription in his name 

for Oxycodone, possessed a note describing the street value of the drug in Spotsylvania.4

 As noted 

above, appellant offers no innocent explanation for the note, and we cannot think of one. 

Furthermore, appellant’s “price list” note and Roy’s notebook that was seized link the 

brothers to the illegal prescription medication trade. Viewed in its totality, the evidence was 

sufficient to allow the factfinder to conclude that the brothers had agreed to engage in the illegal 

sale of prescription medications and, in fact, had done so on November 23, 2013. 

 Regarding both convictions, appellant argues that we must reverse his convictions 

because he offered the trial court reasonable hypotheses of innocence—that the brothers had 

 4

 That the references on appellant’s note were for pills of a different concentration than the 

pills prescribed to Roy is of little significance. The note links appellant to the illegal sale of 

Oxycodone, and a simple mathematical conversion would allow one to determine the street value of 

Roy’s pills from the information possessed by appellant. 
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consumed the pills or that, even if they had sold the missing pills, the remainder could have been 

possessed for the purposes of personal consumption—and the evidence did not completely 

eliminate these possibilities. This misunderstands both the reasonable-hypothesis principle and 

the importance of the factfinder. 

Properly understood, the reasonable-hypothesis principle is 

not a discrete rule unto itself. The statement that circumstantial 

evidence must exclude every reasonable theory of innocence is 

simply another way of stating that the Commonwealth has the 

burden of proof beyond a reasonable doubt. Thus, the principle 

does not add to the burden of proof placed upon the 

Commonwealth in a criminal case. It merely echoes the standard 

applicable to every criminal case. 

 

It is true that a factfinder cannot “arbitrarily” choose, as 

between two equally plausible interpretations of a fact, one that 

incriminates the defendant. The choice becomes arbitrary, 

however, only when no rational factfinder could believe the 

incriminating interpretation of the evidence and disbelieve the 

exculpatory one. When examining an alternate hypothesis of 

innocence, the question is not whether “some evidence” supports 

the hypothesis, but whether a rational factfinder could have found 

that the incriminating evidence renders the hypothesis of 

innocence unreasonable. 

 

Vasquez v. Commonwealth, ___ Va. ___, ___, 781 S.E.2d 920, ___ (2016) (emphasis added) 

(internal quotation marks, citations and footnote omitted). Considering all of the evidence, we 

cannot say that the factfinder’s rejection of appellant’s story that the brothers had consumed the 

missing pills or may not have intended to sell the remainder was arbitrary. 

 In concluding that the evidence was sufficient to support the convictions, we note that we 

examine a factfinder’s conclusions “with the highest degree of appellate deference.” Thomas v. 

Commonwealth, 48 Va. App. 605, 608, 633 S.E.2d 229, 231 (2006). “An appellate court does 

not ‘ask itself whether it believes that the evidence at the trial established guilt beyond a 

reasonable doubt.’” Williams v. Commonwealth, 278 Va. 190, 193, 677 S.E.2d 280, 282 (2009) 

(quoting Jackson v. Virginia, 443 U.S. 307, 318-19 (1979)). Instead, the only “relevant question 
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is, after reviewing the evidence in the light most favorable to the prosecution, whether any

rational trier of fact could have found the essential elements of the crime beyond a reasonable 

doubt.” Sullivan v. Commonwealth, 280 Va. 672, 676, 701 S.E.2d 61, 63 (2010) (emphasis 

added). 

 This deferential appellate standard “applies not only to the historical facts themselves, but 

the inferences from those facts as well.” Clanton v. Commonwealth, 53 Va. App. 561, 566, 673 

S.E.2d 904, 907 (2009) (en banc) (internal quotation marks omitted). “Thus, a factfinder may 

‘draw reasonable inferences from basic facts to ultimate facts,’” Tizon v. Commonwealth, 60 

Va. App. 1, 10, 723 S.E.2d 260, 264 (2012) (quoting Haskins v. Commonwealth, 44 Va. App. 1, 

10, 602 S.E.2d 402, 406 (2004)), “unless doing so would push ‘into the realm of non sequitur,’” 

id. (quoting Thomas, 48 Va. App. at 608, 633 S.E.2d at 231). As noted above, the evidence was 

sufficient to allow the factfinder to conclude beyond a reasonable doubt that appellant was guilty 

of the crimes charged. 

CONCLUSION 

 Based on the evidence presented, a factfinder reasonably could conclude beyond a 

reasonable doubt that appellant possessed morphine with the intent to distribute and conspired with 

his brother to distribute controlled substances. Accordingly, we affirm his convictions. 

Affirmed. 
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Alston, J., dissenting, in part. 

I join the majority opinion finding the evidence more than sufficient to convict appellant 

of possession with the intent to distribute a controlled substance in violation of Code 

§§ 18.2-248; 54.1-3446 through 54.1-3452. 

I respectfully dissent from the majority decision finding that appellant conspired to 

distribute a controlled substance. 

“Conspiracy is defined as an agreement between two or more persons by some concerted 

action to commit an offense.” Williams v. Commonwealth, 53 Va. App. 50, 59, 669 S.E.2d 354, 

358 (2008) (quoting Feigley v. Commonwealth, 16 Va. App. 717, 722, 432 S.E.2d 520, 524 

(1993)). “The crime is ‘complete when the parties agree to commit an offense.’” Id. (quoting 

Gray v. Commonwealth, 260 Va. 675, 680, 537 S.E.2d 862, 865 (2000)). “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.” Id. at 59-60, 669 S.E.2d at 358 (quoting Zuniga v. 

Commonwealth, 7 Va. App. 523, 527, 375 S.E.2d 381, 384 (1988)). The Commonwealth “must 

prove beyond a reasonable doubt that an agreement existed.” Floyd v. Commonwealth, 219 Va. 

575, 580, 249 S.E.2d 171, 174 (1978) (citing Reed v. Commonwealth, 213 Va. 593, 194 S.E.2d 

746 (1973)). 

Evaluating the evidence in an effort to find a necessary agreement between appellant and 

Roy, even in the light most favorable to the Commonwealth, Detective Haney could not testify 

with any particularity as to what the notations in Roy’s notebook meant. There certainly was no 

testimony that these notations were owe sheets or that they referenced appellant or any stake he 

may have in the sale of Oxycodone. Moreover, the paper found in appellant’s pocket did not 

reference any agreement or plan to sell Oxycodone on the day of the arrest or in the future; it 
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merely noted quantities, dosages, and street values of pills not in appellant’s or Roy’s possession. 

A reasonable fact-finder might have concluded that the note may prove the crime of aiding and 

abetting; however it does not prove or lead to a reasonable inference that Roy and appellant 

made an agreement to sell Oxycodone and then acted in concert on that agreement. My reading 

of the law of the Commonwealth would suggest that there is a subtle yet significant difference 

between the crime of conspiracy and the crime of aiding and abetting. And respectfully, in my 

view, the Commonwealth’s evidence is lacking to prove the crime of conspiracy. 

For these reasons, I respectfully dissent from the majority opinion affirming appellant’s 

conspiracy conviction.