COURT OF APPEALS OF VIRGINIA 

Present: Judges Baker, Bray and Overton 

Argued by Teleconference 

FRANK BRADFORD TIBBITT, JR. 

 MEMORANDUM OPINION* BY 

v. Record No. 0168-96-1 JUDGE NELSON T. OVERTON 

 MARCH 4, 1997 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH 

Robert B. Cromwell, Jr., Judge 

 James O. Broccoletti (J. F. Hoen; Zoby & 

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

 H. Elizabeth Shaffer, Assistant Attorney 

General (James S. Gilmore, III, Attorney 

General, on brief), for appellee. 

 Frank Bradford Tibbitt, Jr., was convicted by a jury of 

possession of cocaine with the intent to distribute and 

conspiracy to possess cocaine with the intent to distribute. He 

appeals, arguing (1) that the evidence was obtained in an illegal 

search; (2) that a hearsay statement was improperly admitted; (3) 

that the hearsay statement was improperly mentioned in closing 

argument; and (4) that the trial judge erroneously refused one of 

the defendant's jury instructions. We disagree on each point, 

and affirm Tibbitt's convictions. 

 Tibbitt first contends that the search of his person was 

illegal. He claims that, although the police were justified in 

stopping his vehicle, they were not justified in arresting him 

 

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

designated for publication. 
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and searching him incident to that arrest. Contrary to this 

assertion, the police did have probable cause to arrest Tibbitt 

after they stopped his vehicle. "'[P]robable cause exists when 

the facts and circumstances within the officer's knowledge, and 

of which he has reasonably trustworthy information, alone are 

sufficient to warrant a person of reasonable caution to believe 

that an offense has been or is being committed.'" Jones v. 

Commonwealth, 18 Va. App. 229, 231, 443 S.E.2d 189, 190 (1994) 

(quoting Taylor v. Commonwealth, 222 Va. 816, 820, 284 S.E.2d 

833, 836 (1981)). "To establish probable cause, the Commonwealth 

must show 'a probability or substantial chance of criminal 

activity, not an actual showing of such activity.'" Ford v. City 

of Newport News, 23 Va. App. 137, 143-44, 474 S.E.2d 848, 851 

(1996) (quoting Boyd v. Commonwealth, 12 Va. App. 179, 188-89, 

402 S.E.2d 914, 920 (1991)). 

 In this case, the police were told by Ignatius Moore that a 

man named Frank in a blue Renault would be involved in a drug 

deal. After observing Moore participate in a drug transaction, 

the police saw Moore immediately picked up by a blue Renault 

driven by Tibbitt. Upon stopping Tibbitt’s car, the police 

arrested Moore, but found that he had already transferred some of 

the marked "buy money." The knowledge and observations of the 

police at that time provided probable cause to believe that 

Tibbitt was not an innocent bystander, but was an accomplice to 

the drug transaction. The arrest and search of Tibbitt were 
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therefore lawful, and the evidence found on Tibbitt was properly 

admitted. 

 Tibbitt next argues that the statement made by Moore about a 

man named Frank in a blue Renault was hearsay and should not have 

been admitted at trial. Moore's statement, however, was an 

exception to the hearsay rule as a statement made by a 

co-conspirator. "The admissibility of a co-conspirator's 

declarations made in furtherance of the conspiracy, but outside 

of the presence of a defendant, is a long established exception 

to the hearsay rule in Virginia." Rabiero v. Commonwealth, 10 

Va. App. 61, 63, 389 S.E.2d 731, 732 (1990). "[A] prima facie

case of conspiracy must be established by evidence independent of 

the declarations themselves." Id.

 The evidence presented by the Commonwealth meets this test. 

 Tibbitt was waiting across the street from the drug transaction, 

even though Moore had changed the location at the last minute. 

Once Moore was finished, Tibbitt immediately pulled out to pick 

him up without any signal from Moore. When Tibbitt was searched 

shortly thereafter, some of the buy money was found on him, 

apparently given to him directly after picking up Moore. At the 

time of his arrest, Tibbitt told the police that he knew that 

some of what was sold to the police was soap. This evidence, 

taken as a whole, is sufficient to establish a prima facie case 

that an agreement existed between Tibbitt and Moore for the sale 

of drugs. A conspiracy having been established, Moore’s 
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statement to the police about a man named Frank in a blue Renault 

was admissible. 

 By extension, Tibbitt's claim of error as to the closing 

argument also fails. If the statement was properly admitted, the 

Commonwealth was free to refer to it as evidence that the jury 

could consider. 

 Lastly, Tibbitt claims that the trial judge erred in 

refusing a jury instruction as to an accessory after the fact. 

We find no error. "An instruction that is not supported by the 

evidence . . . is properly refused." Frye v. Commonwealth, 231 

Va. 370, 388, 345 S.E.2d 267, 280 (1986). More than a "mere 

scintilla of evidence" must be present to support the 

instruction. Boone v. Commonwealth, 14 Va. App. 130, 132, 415 

S.E.2d 250, 251 (1992). In order to have been an accessory after 

the fact, a felony must have been completed, Tibbitt must have 

known that Moore was guilty, and Tibbitt must have received, 

relieved, comforted or assisted him. See Manley v. Commonwealth, 

222 Va. 642, 645, 283 S.E.2d 207, 208 (1981). The evidence 

viewed in a light most favorable to the defendant does not 

satisfy these requirements. Tibbitt told the police that he had 

no contact with Moore before the transaction and merely gave 

Moore a ride without any intention of assisting him with a crime. 

 This evidence may tend to prove Tibbitt's innocence of any 

offense, but it does not support a charge of accessory after the 

fact. The instruction was properly refused. 
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 Accordingly, we affirm Tibbitt's convictions. 

 Affirmed.